Public Law & Legal Theory
Constitutional limits on government’s power to regulate the culture and the arts, newly salient in light of the controversy involving the Brooklyn Museum, are best understood by distinguishing among (a) content-neutral, (b) content-based, and (c) viewpoint-based restrictions, and also among (a) criminal and civil sanctions, (b) “penalties,” and (c) mere failure to fund. The resulting three-by-three matrix provides an understanding of the vast bulk of current constitutional law. At the same time, several serious puzzles are created by current law: the distinction between viewpoint discrimination and content discrimination can be thin in the context of art; it is hard to know what counts as a “mere” failure to fund; and the law contains important uncertainties about selective funding. There is discussion as well of government subsidies of the market for culture and art.
Cass R. Sunstein, "Culture and Government Money: A Guide for the Perplexed," University of Chicago Public Law & Legal Theory Working Paper, No. 7 (2000).