[The following was written by Murphey as a pamphlet that was circulated on campus by the
chapter of Young Americans for Freedom in 1970 relating to the decision by the Wichita State University city commission not to make the city auditorium available for showing the musical “Hair.” All such issues were inflamed to the utmost degree by the revolutionary, counter-cultural atmosphere of the times. The points raised in the pamphlet can be applied to many issues involving public funding and facilities—such as the controversy a few years later over the National Endowment for the Arts’ funding of the “Christ submerged in urine” “artwork.”] Wichita
The “Hair” Controversy
A great deal has been said during the past few days, both pro and con, about the decision by the Wichita City Commission not to make the Century II facilities [i.e., the city auditorium] available for the showing of “Hair” [a counter-cultural musical that featured frontal nudity]. As is so often the case, there has been more self-righteous than reasoned analysis.
The debate has significance not for its immediate practical import, but because of the importance of the principles it calls into play.
The members of Young Americans for Freedom on this campus would like to encourage a reasoned consideration of this issue. Accordingly, they invite your attention to the following thoughts about it, which though not exhaustive may contribute something to a clear understanding of the issues at stake.
1. One has a tendency to react to the issue with an immediate visceral response. Despite this tendency, reflection leads us to acknowledge that the intellectual questions involved are hard to resolve. At the same time, we are struck by the fact that each side in the dispute is at least partly in error because of its failure to recur to certain “first principles” that unfortunately have long been lost sight of in the philosophical chaos of our times.
2. We would hope that all who are interested in the dispute will stop long enough to realize that the civil libertarian issues that it raises are a direct and unavoidable consequence of the fact that the city is in the business of owning and operating an auditorium. A long time ago, the public took the first step away from true civil liberties by deciding that the city should in effect “socialize” the business of operating auditoriums. The problem of how that governmental power is to be exercised is implicit in that initial decision.
3. The premise that the city should operate an auditorium should be questioned as part of this debate, not because we think they should tear down Century II, but because we feel that civil libertarian issues are implicit in all of “liberalism” and socialism. It has been the historic position of the “conservative” movement that the functions of government should be kept as limited as possible. Whenever it encroaches beyond its legitimate function of providing the framework for a society based on contract and voluntarism, it gives rise to severe civil libertarian problems.
We would remind our liberal friends and our socialist friends that this incident makes clear a major flaw in their general view of the relation of government and society: it is that governmental power, however benevolent the intention with which it was originally created, is subject to abuse. If we do not like the potential ways in which it can be used by city commissioners, attorneys general or the like, we ought perhaps to question whether the power is a good one to have created in the first place.
Both “liberals” and socialists have characteristically been in favor of “governmental aid to the arts.” Here again, they have envisioned that the state would exercise such a power without detrimental effects on civil liberty. The “Hair” incident should, however, teach them that the governmental power they created is a two-edged sword; it may or may not be used in the way they envision. Nothing can be more important in the twentieth century than for all people to realize that the gigantic state, either welfare statist or socialist, can be used not just for benevolent purposes but also, once it exists, for totalitarian purposes.
4. Once it is admitted that the city government can legitimately operate an auditorium, a difficult question arises as to the principles, if any, that ought to guide it in its operations. Must it make the facilities available to everyone? Or may the public, acting through its democratic institutions, exercise a proprietary discretion?
Neither of these alternatives is unmitigatedly good, and neither is unmitigatedly bad.
5. First, there is the view that it ought to open the facilities to every conceivable use. This has much to be said for it precisely because it follows, to the extent possible now that the government has intervened in cultural matters by owning the auditorium, the conservative Rule of Law principle of “equality before the law.” It also aligns itself with the “open market-place of ideas” concept that we have inherited from, say, John Stuart Mill.
Thus, there is much to be said for this side of the argument. Its weaknesses, though, are twofold. In the first place, both the Rule of Law and the “open market-place of ideas” become more difficult of accomplishment as the state intervenes more and more into the lives of the citizens. This is because neither the “democratic majority” nor a “central planning board” usually likes to consider its function as merely ministerial; that is to say, as one merely of standing by while everyone does what he wishes with public facilities. Once the governmental power is admitted, both the Rule of Law and the “open market-place of ideas” concept are weakened and made ineffectual bulwarks against governmental discretion.
In the second place, the anti-Commission position is insensitive to the corresponding civil liberty of the majority members of the community, the electorate, the body politic. Those persons, too, have their moral sensitivity. Surely it is a violation of civil liberty to tax some people and then not make the facilities available for them to see a show they wish to see. But so also is it a violation of civil liberty to tax other people in order to create facilities that are then made available for the showing of plays that those others find objectionable. We ought not to forget that it violates the existential integrity of the person taxed if his tax dollars are used for something repugnant to his own moral sensibilities. Thus, we see that each side has, in fact, a civil libertarian argument.
6. On the other hand, it can be remarked that any exercise of discretion by the legislative power, in this case the Commission, is dangerous and constitutes a form of censorship. And there is no getting around this; it is inherent in the type of power created.
This ought not to obscure the realization, however, that the question of the extent of legislative discretion in a democracy is a difficult one. Indeed, it is one that, as we see in this instance, has never been resolved.
Rousseau addressed himself to the issue in the eighteenth century when he spoke of the “General Will.”
Jeffersontrusted democratic majorities, at least in the agricultural, non-proletarianized . De Tocqueville was worried by them. Earlier in our own century, “liberals” such as Holmes and Frankfurter were adamant in their insistence on the right of democratic majorities to exercise a more-or-less unfettered will. Other “liberals” have argued that politics ought to be pragmatic—a way of saying that it ought not to be limited by principles, which in this instance would mean (contrary, we are sure, to their expectations) that the City Commission may do pretty much what it considers “most workable.” United States
As “conservatives” we have not agreed with some of the lines of thought we have just recited, but we certainly would not deny that in an avowed “democracy” some faith in the elected representatives of the people is not ill-placed. Hence, we would anticipate that normally those representatives might have some right to exercise discretion in carrying on the propriety functions the people have seen fit to place in their hands.
Which of the two views is correct? Each is half defensible and half indefensible. For sound principle, we must recur to our initial objection to the existence of the governmental activity that is involved.
Whatever the merits of this particular dispute about auditorium facilities, it is well that more and more Americans should speak out in outrage at the nihilism and moral hedonism they see so sanctimoniously parading in the guise of “cultural revolution.” That revolution is essentially anti-civilizational, as we hope more and more of the college-age generation will come to understand. American values, the values of the “middle class” that Marx, Hitler, Emerson, Thoreau and many thousands of other alienated persons, including this author, have found so objectionable, do need a great deal of spiritual and intellectual revamping. But it ought to be a reformation that seeks to construct, not destroy.
Prof. Dwight D. Murphey