The governor of New Hampshire refused to approve an art grant from the New Hampshire Commission on the Arts for the literary magazine ‘Granite’ because the magazine had previously published a poem (“Castrating the Cat,” see Appendix to Opinion) that contained language and imagery that some might find offensive. He described the poem as an “item of filth.” The magazine and an organization for the promotion of the arts filed suit, claiming that the governor’s decision violated their First Amendment rights because a decision based only on personal preferences constitutes an improper prior restraint of free expression.
The Court found the governor’s decision was constitutional. It did not constitute prior restraint simply because it promoted one work of artistic expression instead of another. The Court found there to be no tradition of required neutrality when deciding which work to subsidize with federal funds. Because of the high level of subjectivity in determining the merit of artwork, the Court declined to require narrow, objective standards for the state to follow in deciding what to fund. In effect, the Court said that if the state believes works of an offensive nature necessarily have less artistic merit than others, it is in no position to disagree.
The Court did find, however, that if a pattern of discrimination, supporting one type of viewpoint consistently over others, was present, that pattern may constitute a First Amendment violation. In this case, such a pattern of viewpoint discrimination was absent, and the governor’s denial of the grant was thus constitutional.
This case is significant for the broad deference the Court gives to the state and its spending choices.
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