In terms of artistic merit, Justice Antonin Scalia’s sizzling concurrence was the winner among the opinions accompanying the Supreme Court’s June 25 decision upholding, sort of, a 1990 law that tells the National Endowment for the Arts (NEA) to consider ”general standards of decency” when it awards money based on artistic merit.

”Avant-garde artistes,” Scalia wrote–with disdain for the lot of them, or at least for those who cry ”censorship” while seeking handouts–”remain entirely free to epater les bourgeois; they are merely deprived of the additional satisfaction of having the bourgeoisie taxed to pay for it.”

But at the Court, the winning formula is neither artistic merit nor decency. It is getting five votes. Justice Scalia did not do that; his opinion–stressing that Congress should be free to deny public money to artists who smear their naked bodies with chocolate or submerge crucifixes in urine–was joined only by Justice Clarence Thomas. Justice David Souter, who wanted to strike down the 1990 law, was alone in dissent.

Sandra Day O’Connor, joined by the other five Justices, wrote the opinion for the Court in National Endowment for the Arts v. Finley, which sustained the statute–but only ”by gutting it,” in Scalia’s view. O’Connor suggested that the 1990 law’s constitutionality might be in doubt if (as both Scalia and Souter asserted) it did require ”a penalty on disfavored viewpoints”; she upheld it by straining to read it as ”advisory,” and thus largely toothless.

This was, in short, a classically O’Connoresque exercise in muddled moderation, lacking elegant analysis or memorable lines, and easily attacked as illogical from the pure, polar positions of Scalia and Souter.

The O’Connor opinion was also a pretty good outcome, however. It resolved an essentially symbolic skirmish in the culture wars by giving both sides something to crow about, while letting the NEA get back to its usually benign if boring business of financing the works of orchestras and the like.

From the right, House Speaker Newt Gingrich applauded the Court for vindicating ”the right of the American people to not pay for art that offends their sensibilities.” From the left, the American Civil Liberties Union expressed relief that the Court had rendered the law ”essentially meaningless.”

A judicial fudge that placates partisans on both sides is not a good thing, of course, if it sacrifices important constitutional principles to expediency. But it is a good thing when the Court avoids a collision between two vital principles that can co-exist only if neither is carried to the limits of its logic.

The two principles at stake here are both woven deeply into our traditions and precedents. The first, honored by Scalia, is that in a democracy the people cannot, and in the long run will not, be taxed to subsidize ”art”–or any other form of speech–that they abhor. The second, honored by Souter, is that the 1st Amendment bars all ”viewpoint discrimination in the exercise of public authority over expressive activity.”

This battle began in 1989, when Congress got into an uproar over two NEA grants that totaled $ 45,000. One went to Andres Serrano, whose ”Piss Christ”–a photograph of a crucifix immersed in urine–enraged religious conservatives. The other helped finance an exhibit of the late Robert Mapplethorpe’s stunningly rendered photographs of such homoerotic scenes as a man urinating into another’s mouth.

Conservatives led by Sen. Jesse A. Helms, R-N.C., pressed for a ban on NEA funding of such ”indecent” art. But others warned that this smacked of censorship, and avant-garde artists painted dark visions of oppression descending on the land.

The 1990 statute that resulted was a vague, watered-down compromise. It required the arts agency to consider ”general standards of decency and respect for the diverse beliefs and values of the American public.” But it stopped short of explicitly barring federal subsidies for any particular viewpoint, ”indecent” or otherwise.

The NEA diluted the statute further, implausibly construing it as requiring no more than geographic, ethnic and aesthetic diversity on its advisory panels. But the NEA also shied away from further support of art as inflammatory as that of Mapplethorpe and Serrano.

Four artists whose grant applications were rejected in 1990–after they had been bless ed by an NEA advisory panel–sued the agency, asserting that they had been rejected for political reasons and that the 1990 law was unconstitutional. The name plaintiff was Karen Finley, a performance artist known for covering her body with chocolate (signifying excrement) to make a symbolic statement (she said) about abused women.

The crux of Justice O’Connor’s holding was that the 1990 statute posed no ”realistic danger (to) First Amendment values” because its ”advisory” language did not ”disallow any particular viewpoints,” but rather merely specified that the ”decency and respect” criteria were among the inherently subjective factors to be considered in the NEA’s ”assessment of artistic merit.”

This was a deliberately cramped reading. But it draws plausibility from the legislative history. O’Connor’s reading also draws legitimacy from the Court’s long-standing practice of straining to read statutes narrowly if doing so is necessary to avoid potential constitutional problems.

The potential problem here, O’Connor noted, was posed by precedents holding that ”even in the provision of subsidies, the government may not seek ‘the suppression of dangerous ideas.’ ” She intimated that the Court might bar any application of the 1990 statute that amounted to clear viewpoint discrimination. But she also hedged, by noting that ”the Government may allocate competitive funding according to criteria that would be impermissible were direct regulation of speech or a criminal penalty at stake.”

An ambiguous, inconclusive muddle? Yes–but one preferable to the sharp analytical extremes represented by Scalia and Souter. Both were cogent in stressing that the 1990 law was designed to require the NEA to discriminate against (although not to ban all funding of) disfavored viewpoints. But neither was entirely persuasive on the constitutional issue.

Scalia was too facile in claiming that viewpoint discrimination ”is perfectly constitutional” when it comes to endowment grants.

As a general proposition, government money must often be subjected to 1st Amendment strictures, given its massive role in the economy and in facilitating private speech–whether by subsidizing university tuition, or by giving preferential postage rates to publications, or by providing parks and streets as public forums for protest marches.

And in Rosenberger v. University of Virginia, in 1995, the Court ruled that a state university that financed student publications violated the 1st Amendment right of free speech when it denied funding to otherwise-qualified publications with religious viewpoints.

Scalia dismissed Rosenberger as irrelevant because the funding there was available on a nonselective basis to all student publications except religious ones, whereas the NEA is necessarily selective, and must reject most applications for its scarce funds. But would Scalia uphold a state university subsidy scheme that, say, selectively supported publications deemed to exhibit editorial excellence, while excluding any that failed to display empathy for the radical feminist perspective? I don’t think so.

Justice Souter, on the other hand, was kidding himself if he thought that barring any congressional deviation from viewpoint neutrality–and leaving it to the NEA to choose among competitors on the basis of ”artistic merit”–would purge the process of viewpoint discrimination. As Justice O’Connor noted, the 1990 statute seems unlikely to ”introduce any greater element of subjectivity than the determination of ‘artistic excellence’ itself.” At a time when much ”art” exudes political messages and little else, assessments of ”artistic merit” are often steeped in viewpoint discrimination. Karen Finley’s chocolate-smeared performance may be a thing of beauty to those attuned to her message. But would the NEA advisory panelists who supported Finley also have gone to bat for a painter who used her technical virtuosity to preach that a mother’s place is at home with her children? I don’t think so.

The point is not that the one artist is better than the other. It is that the government cannot avoid a measure of viewpoint discrimination when it rewards ”artistic merit.” And that suggests that if government is to be a patron of the arts at all, the people’s elected representatives are entitled to some say in what they will pay for.