In my Art Law class, I once lambasted the notion of ‘the public interest’. No, I did not wield Margaret Thatcher’s argument that “there is no such thing as society” (a quote, incidentally, that has grown to such proportions that no one remembers the context… accordingly, I urge you to check that link). Rather, I attacked it because using that as a policy justification for an action, especially in the arts, will lead to specious results and open the door to twisted perversions of what is really in the public interest.

Think about it. One could make an argument that virtually anything is in the public interest and who will decide what truly is or isn’t? If two things are, who will decide which is more so in the public interest? (And is there such a thing as the public interest? There is no such thing as society! errr, uhhh… strike that….) This battle is not new. In property law, for instance, there has long been the problem of “eminent domain” in the US. Eminent domain is a power created by the Fifth Amendment to the US Constitution, stating: nor shall private property be taken for public use without just compensation. We recently had a much-maligned decision out of the US Supreme Court, Kelo v. New London, that ruled a taking given to private interests may a public use in certain situations, such as job growth and economic development, which are the main reasons eminent domain is employed in many areas around the US as local governments strive to change blight into prosperity. The majority in favor of the government power, four liberals and the moderate/conservative Justice Kennedy, supported the broadening of the public use concept while three conservatives and the moderate/conservative Justice O’Connor thought the distinction between private and public use had been grossly discarded. In other words, the liberals support the government having broad powers over property by way of the government determining what a public use is — essentially whatever it wants it to be. [I have terribly simplified this and encourage you to read the opinions and issues involved in detail. Between 65% and 93% of Americans reacted negatively to this decision and it says a lot about differing interpretations of government power.]

In Latin America, the social function doctrine holds similar sway. As I currently understand it, many countries such as Brasil and Colombia explicitly ascribe to the “social function” of property doctrine in their country’s respective constitutions. The doctrine is essentially that states hold the ultimate ownership, as sovereigns, to all the property in their territorial domains and they “allow” other owners so long as the use/ownership serves a social function. As you might suspect, this is an incredibly amorphous standard that could be abused. Who decides, after all? One scholar of the subject recently told me that thousands of pages could be written in a single book about the concept. I replied that it makes perfect sense because it can be twisted into anything you want it to be, and mean anything you want it to!

So I have wasted a lot of your time in coming to this point, but I write all this due to Donn Zaretsky’s comments regarding the O’Keeffe paintings at Fisk University. Recently, the court settled the issue by preventing Fisk’s sale of the works particularly on grounds of the public interest. While lauded by some, the legal reasoning is quite rightly lambasted by Zaretsky:

I’m still puzzled by this whole approach. I’m as in favor of the public interest as the next guy, but isn’t it also in the public interest that Fisk be able to field NCAA athletic programs? Isn’t it in the public interest to improve the chances of Fisk’s very survival as an institution? And how exactly are we supposed to measure the effect of various states of affairs on the public interest? If Fisk keeps the entire Stieglitz Collection, but has to cancel its NCAA sports program and make who knows what other sacrifices as a result of its precarious financial condition — what is that, like a “72” on the public interest scale? But if Fisk gets to keep 99 out of the 101 works in the collection (plus the right to exhibit one of the other two for four months every four years) but also ends up with $25 or 30 million to solve lots of its other problems — is that a “70”? Or, what if it gets to share ownership of the collection with a new museum in, say, Arkansas, so that it winds up with $30 million in the bank and anyone who wants to see the works just has to time his visit for the right part of the year? What public-interest score does that get? In short, the “public interest” game gets pretty slippery pretty fast. It’s easy to wave your magic wand and say “public interest” — in an ideal world of course it would be best for Fisk to keep all of the works (at least for the people of the state of Tennessee; perhaps not so much for the people in Arkansas) — but the question is always compared to what? It’s not at all obvious to me that the current state of affairs is, on the whole, better than some of the alternatives that emerged during the course of the litigation.

The facts of this case may indeed lead to the conclusion that the paintings may not be sold. I have only had a mild interest in the case and cannot say for certain. However, I think we should turn around and watch the shots coming at us from astern: too often art law is determined by considerations of the public interest. Make no mistake about it, the public interest is a negligible if not completely valueless consideration when considering restrictions on the alienation of art. Ultimately, we will pay the price for restricting it in the public interest by stagnation in art.

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