The Unacknowledged Symbolic Function of Government Programs : A Legal Brief in the Supreme Court Case National Endowment for the Arts v. Finley

A primary, but typically unacknowledged, function of government action - whether it be new laws, the inauguration of new leaders, the establishment of new agencies, or the funding allocated to existing agencies - is to show what the people "approve of." Government praise is an asset that the government can bestow wholly apart from the concurrent bestowing of government money - although the most meaningful and effective praise usually carries a government check along with the government's "seal of approval." A legal brief addressing this subject was a brief the author prepared for filing in the Supreme Court case National Endowment for the Arts v. Karen Finley, et al., in 1998. Regrettably, advocates of the free speech rights of certain artists worked to prevent the filing of this brief, and the points made never appeared in the ultimate Supreme Court disposition of the case. Because the election of Barack Obama, the first President of African-American ancestry, is such a powerful symbolic act in favor of racial reconciliation and the dissipation of ancient prejudices, the symbolic role of government action, and the manner in which government is used by the people to shape the social norms of the people, is once again presented front-and-center to students of government. Thus it is possible that the points made in the suppressed amicus brief (which has never before been published) may prove useful to students of government today. This paper includes an introductory section to frame the issue in the context of today and to relate the history of the brief and how it came not to be filed