While the government cannot regulate what type of art is posted on private property, it may be able to regulate art that is displayed on public – that is, government-owned – property.
Traditional public forums – publicly owned spaces such as a street, park, or sidewalk that have typically been open to public discourse – are open to all expression protected by the First Amendment. The government may also create a designated public forum by opening up a space that isn’t a traditional public forum to be used for general public discourse. Limited public forums are non-public places such as meeting rooms in libraries and other government buildings that the government has opened for specific groups or discussions.
The government cannot place content-based restrictions on speech that occurs in traditional public forums. At most, they can enforce what are known as time, place, and manner restrictions, which regulate when and how someone may speak. Time, place, and manner restrictions on speech in public forums must be reasonable, which the Supreme Court has interpreted as meaning that “the manner of expression is basically incompatible with the normal activity of a particular place at a particular time.”
Some government property, such as jails, military bases, and courthouses, are nonpublic forums. In this type of forum, the government can restrict speech based on content if it demonstrates that it has a “legitimate interest” in doing so. The government still cannot discriminate against particular viewpoints, however. So, the government could prohibit all posting of religious iconography or other religion-themed art on military bases, but it could not permit the display of one religion's symbols while prohibiting those of another.
It may be possible for the government to create a public forum online. Most government websites are not forums for public discussion; rather, they are examples of the government's own speech, which the government can regulate to whatever degree it chooses. And while websites are clearly not traditional public fora, if the government provides a website as a place for public discussion, the website may take on the characteristics of a designated public forum -- a non-traditional space that the government opens up for public discourse. In that case, the government's ability to regulate the speech that occurs on that website would be significantly limited.
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Under the First Amendment, the government may choose to provide funding for the arts, which can include supporting the creation of specific works and making more general contributions toward art education or museum maintenance. But the government cannot distribute this funding based on whether the government agrees with the message of a particular work, or use funding in an attempt to exert editorial control over a museum's collection.
Because the government has a limited amount of funds, however, it must be able to make some determination about which artists receive funding. The National Endowment for the Arts is one of the largest sources of government funding for art, and Congress has tried several times to put restrictions on the grants that the NEA awards. While the restriction forbidding the NEA from funding to art that "may be considered obscene" was struck down as unconstitutionally vague, the Supreme Court upheld a later requirement that the NEA "take into consideration general standards of decency and respect for the diverse beliefs and values of the American public" in the case National Endowment for the Arts v. Finley. The Court reasoned that, because "the very assumption of the NEA is that grants will be awarded according to the artistic worth of competing applications . . . absolute neutrality is simply inconceivable." And, because Congress's requirement merely directed the NEA to "take into consideration" decency as a criterion and specifically encouraged "respect for . . . diverse beliefs and values," the requirement was not an unconstitutional restriction on speech.
The Court did note that "if the NEA were to leverage its power to award subsidies on the basis of subjective criteria into a penalty on disfavored viewpoints," then the funding provision could be found unconstitutional. "[E]ven in the provision of subsidies, the Government may not aim at the suppression of dangerous ideas . . . and if a subsidy were manipulated to have a coercive effect, then relief could be appropriate."
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