ABSTRACT
90 Can the state ever be a friend of freedom? This is the central question that concerned me in the free speech course I offered at Yale and in the essays presented earlier in this volume. For the most part, the question has been posed in a conventional context, in which the state acts in a regulatory manner, much like a policeman. Early on, I acknowledged that the state makes important contributions to political freedom when it acts affirmatively, say by providing public education and public libraries. Yet there was not much Supreme Court case law on the subject, and as a result, this facet of state activity tended to get slighted in the classroom and in my writing.
Then, in 1989, a tremendous public controversy erupted over the decision of the National Endowment for the Arts (NEA) to fund an exhibition of the photographs of Robert Mapplethorpe. It yielded no Supreme Court decision but resulted in an obscenity prosecution, a presidential commission, and several rounds of congressional legislation, one of which created a new governing structure for the NEA. The Mapplethorpe exhibition, which raised issues that are still a matter of public controversy, provided me with a wonderful medium for exploring many of the free speech problems posed by the affirmative state.
I first viewed the Mapplethorpe exhibition in the Wadsworth Athenaeum in Hartford, Connecticut, in the fall of 1989. As I left the exhibition, I thought I finally understood the social dynamics that led America to engage in an act that is now unthinkable—censoring James Joyces Ulysses. I also realized that to explore successfully those dynamics in class, I would need to recreate the exhibition. With the help of two of my students, Elizabeth E. deGracia and Donald W. Hawthorne, I presented the exhibition on slides to my class in the spring of 1990 and again in the spring of 1991, just as this essay appeared in the Yale Law Journal.
Prior to publication, I shared a draft of this essay with a group of lawyers and philosophers—known as SELF (Society of Ethical and Legal Philosophy)—to which I had belonged for some years. In fact, drafts of almost all the essays in this book have benefited from discussions with that group. This particular essay especially provoked one member of the group—Charles Fried—and eventually led to an important critical essay of his, Speech in the Welfare State, which was published by the University of Chicago Law Review in 1992.
