596
Scalia, J., concurring in judgment
entirely free to épater les bourgeois; 2 they are merely deprived of the additional satisfaction of having the bourgeoisie taxed to pay for it. It is preposterous to equate the denial of taxpayer subsidy with measures " ' "aimed at the suppression of dangerous ideas." ' " Regan v. Taxation with Representation of Wash., 461 U. S. 540, 550 (1983) (emphasis added) (quoting Cammarano v. United States, 358 U. S. 498, 513 (1959), in turn quoting Speiser v. Randall, 357 U. S. 513, 519 (1958)). "The reason that denial of participation in a tax exemption or other subsidy scheme does not necessarily 'infringe' a fundamental right is that—unlike direct restriction or prohibition—such a denial does not, as a general rule, have any significant coercive effect." Arkansas Writers' Project, Inc. v. Ragland, 481 U. S. 221, 237 (1987) (Scalia, J., dissenting).
One might contend, I suppose, that a threat of rejection by the only available source of free money would constitute coercion and hence "abridgment" within the meaning of the First Amendment. Cf. Norwood v. Harrison, 413 U. S. 455, 465 (1973). I would not agree with such a contention, which would make the NEA the mandatory patron of all art too
2 Which they do quite well. The oeuvres d'art for which the four individual plaintiffs in this case sought funding have been described as follows:
"Finley's controversial show, 'We Keep Our Victims Ready,' contains three segments. In the second segment, Finley visually recounts a sexual assault by stripping to the waist and smearing chocolate on her breasts and by using profanity to describe the assault. Holly Hughes' monologue 'World Without End' is a somewhat graphic recollection of the artist's realization of her lesbianism and reminiscence of her mother's sexuality. John Fleck, in his stage performance 'Blessed Are All the Little Fishes,' confronts alcoholism and Catholicism. During the course of the performance, Fleck appears dressed as a mermaid, urinates on the stage and creates an altar out of a toilet bowl by putting a photograph of Jesus Christ on the lid. Tim Miller derives his performance 'Some Golden States' from childhood experiences, from his life as a homosexual, and from the constant threat of AIDS. Miller uses vegetables in his performances to represent sexual symbols." Note, 48 Wash. & Lee L. Rev. 1545, 1546, n. 2 (1991) (citations omitted).
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