Soucek's first point is that despite the "widespread aversion to aesthetic judgment" by government decisionmakers, such judgments are ubiquitous both at the "retail" level of individual artworks and at the "wholesale" level of "what constitutes art or aesthetic value in the first place." A number of scholars have made similar points in the IP space; see, for example, Andrew Gilden's argument that courts are more likely to consider images of women and racial minorities to be "raw materials" that are free to use. But the point holds even more strongly in other areas of law. Perhaps most obviously, there is significant direct spending on the arts that falls on the "government-set" side of the who decides? spectrum, including grant decisions by the National Endowment for the Arts, book purchases by public libraries, and hiring and curriculum decisions by humanities departments at public universities. Other examples are easy to find: Tariff and tax laws embody Congress's decision to benefit only certain types of art, and they require government officials to make judgments such as whether abstract art is art. Land-use laws ban conduct that is "offensive to the visual sensibilities of the average person" like front-yard clotheslines. The test for obscenity asks whether the work "lacks serious literary [or] artistic" value.
The primary arguments in favor of aesthetic neutrality have been that judges lack sufficient expertise to make aesthetic judgments and that taste is hopelessly subjective (or more precisely: unpredictable or relativist). Soucek argues that neither argument is persuasive. On judicial incompetency, he writes that "it is hard to understand why aesthetic judgments should be any harder to make than judgments involving, say, complex technology in patent disputes or judgments requiring deep familiarity with the economics of a particular industry in antitrust cases." Judicial ignorance could be mitigated by expert testimony—unless there is no expertise in aesthetics, which leads to the second argument for aesthetic neutrality: there's no accounting for taste. On the relativism of aesthetic judgments, Soucek states that (1) "even if we were to grant the relativism of retail aesthetic value judgments, this might still leave untouched most of the other substantive aesthetic judgments canvassed in Part I"; (2) "much of the leading work in philosophical aesthetics in the past three centuries has been spent explaining the universality of our judgments of taste"; and, perhaps most significantly, (3) "acceding to relativism is itself a substantive aesthetic judgment."
Soucek contends that the most convincing limits on aesthetic judgments by government actors come not from institutional (in)competency or aesthetic relativism, but from the Free Speech Clause's restrictions on viewpoint discrimination:
We might imagine a spectrum of First Amendment applicability. On one end, the Free Speech Clause applies in fullest force whenever the state is trying to shut down expression that diverges from state orthodoxy. Here, the aesthetic nondiscrimination principle is needed to keep the government from encroaching on private beliefs about substantive aesthetic matters. When private aesthetic judgments are regulated or, worse, disallowed—as they are, for example, in blight determinations and obscenity law—aesthetic neutrality becomes essential. But as we move across the spectrum from government regulation toward government subsidy of speech, aesthetic judgment becomes less concerning. Here we find cases, like tax and tariff exemptions and many areas of intellectual property, where private aesthetic judgments are being endorsed or subsidized by the government. Finally, at the far end of the spectrum, we move from government subsidies for speech to government speech itself. There the Free Speech Clause imposes no limit at all and the aesthetic nondiscrimination principle should cease to apply.Locating a particular aesthetic judgment along this spectrum is intertwined with the question of whether the state action constitutes "government speech," a doctrine that Daniel Hemel and I attempt to elucidate in a forthcoming Supreme Court Review article. As Soucek notes, these distinctions are not easy, and while his framework "largely turns on the distinction between subsidizing versus regulating or limiting . . . . the word 'subsidy' is not some magic tailsman that causes First Amendment worries to disappear." But this article's nuanced discussion should be required reading for courts or commentators grappling with these issues across any of these areas of law. Highly recommended.