A little over a week before July 4th, Independence Day weekend, the Supreme Court of the United States announced its 8-1 decision in the case of The National Endowment for the Arts v. Finley, in which it upheld a law requiring the NEA to “consider general standards of decency and respect for the diverse beliefs and values of the American public” as part of its criteria when judging grant applications. The Court held that the “decency and respect” provision neither inherently interfered with First Amendment rights nor violated constitutional vagueness. This result was considered a victory, at least in part, by all sides.
William J. Ivey, current chairman of the NEA, said, “We are pleased with the Supreme Court ruling. [The] decision is an endorsement of the Endowment’s mission to nurture the excellence, vitality, and diversity of the arts and a reaffirmation of the agency’s discretion in funding the highest quality art in America.”
The National Campaign for Free Expression, as one of the plaintiffs challenging the NEA statute, was disappointed by the ruling, but Executive Director Gory Schwartz said, “We are encouraged that the Court stated that governmental arts funding decisions that do attempt to silence a certain viewpoint or categorically exclude certain content will be highly suspect.”
Another co-plaintiff, the American Civil Liberties Union, said, “The Court’s decision does relatively little damage to the First Amendment principle that when the government is supporting free expression—whether through arts or humanities grants, libraries or public universities—it cannot discriminate in its funding decisions against unconventional or controversial ideas.”
Similarly, The American Center for Law and Justice, originally founded by The 700 Club’s Pat Robertson, declared the decision “a major victory for common decency at a time when some groups argue that moral standards are irrelevant.”
Also, Gary Bauer’s Family Research Council stated in its press release that the ruling “sent a strong message to individuals who pour urine on a crucifix or point homoerotic images in the name of art and then ask taxpayers to foot the bill.” He called it “a step in the right direction” toward his group’s ultimate goal of eliminating the NEA and all government funding of the arts.
It seems strange that an 8-1 decision by the Supreme Court could be interpreted so broadly and that all the parties involved could claim victory—until you look more closely and notice that four of the nine justices dissented (at least in part) with the majority opinion as presented by Justice Sandra Day O’Connor. But, before launching into an analysis of the court’s decision and what it means for the future of art in America, let’s take a step back and recall the events that led this case to the Supreme Court.
FORMATION OF THE NEA
It was 1965 when Congress established the NEA to “help create and sustain not only a climate encouraging freedom of thought, imagination, and inquiry, but also the material conditions facilitating the release of this creative talent.” There was genuine concern and debate at the time that government-sponsored art might lead to “attempts at political control of culture,” so steps were taken to isolate and insulate the new agency from the political whims of any given era and keep federally subsidized art free from governmental control. In the Senate report describing Congress’s intended mandate for the NEA, it was stated:
“It is the intent of the committee that in the administration of this act there be given the fullest attention to freedom of artistic expression. One of the artists’ great values to society is the mirror of self-examination they raise so that society can become aware of its shortcomings as well as its strengths. Countless times in history artists who were vilified by their contemporaries because of their innovations in style or mode of expression have become prophets to a later age. Therefore, the committee affirms that the intent of this act should be the encouragement of free inquiry and expression . . . Conformity for its own sake is not to be encouraged, and no undue preference should be given to any particular style or school of thought or expression.” [italics added]
The Congress made the NEA an agency of, by, and for artists, with the overriding standard of artistic excellence established as the only content requirement. It was designed to be immune to political exigencies. In directly expressing the concern that the agency would constitute federal interference in the performing arts, the congressional record of those debates also indicated the following sentiment:
The Federal Government will supply the money, but the artists and their organizations will suggest the proposals, select the performances which are to be produced, and do all the planning. The Federal Government will be the means, but the end product will be the sole responsibly of the performing artists.”
And so it went for nearly 25 years, as the NEA distributed over three billion dollars during that period to individuals, state agencies, symphony orchestras, fine arts museums, dance theater foundations, and opera associations. Such grants served as a catalyst for increased state, corporate, and foundation support for the arts. Then in 1989, Senator Jesse Helms of North Carolina became angry. Photographer Andres Serrano had presented a picture of a crucifix in a jar of urine, calling it Piss Christ, and a Robert Mapplethorpe photo exhibit, The Perfect Moment, had included pictures of explicit homoerotic imagery. The NEA funded the organizations that presented these two exhibitions to the tune of $45,000. Mr. Helms and other politicians started using these two grants to apply pressure on the NEA and its chairman, John Frohnmayer, to stop using tax dollars to support such objectionable projects. “It is an issue of soaking the taxpayer to fund the homosexual pornography of Robert Mapplethorpe, who died of AIDS while spending the last years of his life promoting homosexuality,” Helms said, going on to describe Serrano’s Piss Christ as “blasphemy that taunted the American people.”
In 1990, when four performance artists (Karen Finley, Holly Hughes, John Fleck, and Tim Miller) had their NEA grants rejected, despite unanimous recommendations for grant approval from the agency’s peer review panel, the artists sued the Endowment. After the suit had been instituted, Congress passed the Williams-Coleman Bill, and the “decency and respect” amendment became section (d)(1) of the NEA’s enabling statute. The “NEA Four” subsequently amended their suit to include a constitutional challenge to the new amendment, and the National Association of Artists Organizations was added as a co-plaintiff to the suit. The NEA eventually settled with the four artists, agreeing to pay their original grants, legal fees and damages, but the NAAO maintained its constitutional attack on the “decency and respect” amendment.
In 1992, the federal district court of Los Angeles declared 954(d)(1) was facially unconstitutional for its vagueness and was in violation of the First Amendment. The 9th U.S. Circuit Court of Appeals in San Francisco upheld the lower court’s injunction against the statute. Both courts concluded that the provision violated two basic tenets of the First Amendment: that government may not discriminate against private speech simply because some members of the public are offended by its message; and that government regulations affecting speech must be drawn with clarity to avoid creating a license to censor and a chilling effect on freedom of expression.
Since 1992, the NEA had been enjoined from applying 954(d)(1)—until the Supreme Court’s decision reversed the district court and the court of appeals and freed the NEA to apply the statute.
SUPREME COURT DECISION
Though the Court’s decision was 8-1 in support of the constitutional validity of the NEA statute, four of the nine justices did not agree, at least in part, with the majority’s reasoning. In reality, the Court was split 5-1-2-1, which leaves in doubt the Court’s position for future cases dealing with this issue and requires a closer look at the positions of each faction on the Court to understand the decision’s significance.
Majority Opinion
In delivering the opinion of the Court, Justice O’Connor was joined by justices Stevens, Kennedy, and Breyer and Chief Justice Rehnquist. How the NEA has applied and plans to apply 954(d)(1) is really at the heart of the majority opinion. The Court’s view was that the “decency and respect” criteria, as implemented by the NEA, was basically “advisory” and not applied as an absolute or determinative standard for grant applications. Since the NEA applied the statute to simply ensure that the advisory panels reviewing grant applications represented geographic, ethnic, and aesthetic diversity and did not apply any specific viewpoint-based judgment to the procedure, the statute was not constitutionally deficient on its face.
However, the Court did not rule specifically on whether the NEA’s procedural application of the statute was a reasonable implementation of their statutory obligations, though the Court argued it could well be. O’Connor asserted that the law came out of a bipartisan compromise aimed at reforming procedures, not limiting speech, and that the statute was very clear about limits on grant-making authority in other areas, for example, “Obscenity is without artistic merit, is not protected speech, and shall not be funded.”
However, the Court did offer a caution and proviso to the NEA in its future application of the statute:
“If the NEA were to leverage its power to award subsidies on the basis of subjective criteria into a penalty on disfavored viewpoints, then we would confront a different case. We have stated that, even 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,’ the relief could be appropriate…Unless and until 954(d) (1) is applied in a manner that raises concern about the suppression of disfavored viewpoints, however, we uphold the constitutionality of the provision.”
A second general point made by the majority was that, even though the First Amendment may have application in the context of subsidies, the government has broad spending authority and may allocate funds competitively, according to criteria that would be impermissible if direct regulation of speech or a criminal penalty were at stake. “So long as legislation does not infringe on other constitutionally protected rights, Congress has a wide latitude to set spending priorities.”
Another point made by the Court was the notion that, while “decency and respect” are vague concepts, so is “artistic excellence.” While such vagueness may be unconstitutional for criminal statutes, they are not necessarily harmful in the areas of grants and subsidies, where government is a “patron” not a “sovereign.” If this statute is unconstitutionally vague, then so are many other grant- giving subsidy programs, including the NEA itself.
The Concurrence
Justice Ginsburg concurred with the majority, except with the point regarding the government’s right to establish criteria for competitive funding in the subsidy area that would otherwise be unconstitutional. She did not issue a separate opinion, so we cannot be sure exactly what her objections were.
However, Justice Scalia did issue a separate opinion, joined by Justice Thomas, and made his views clear. “The operation was a success but the patient died,” he said. Scalia and Thomas agreed with the result in upholding the constitutionality of the statute but disagreed entirely with the majority’s reasoning.
“954 (d) (1) must be evaluated as written, rather than as distorted by the agency it was meant to control. By its terms, it establishes content- and viewpoint-based criteria upon which grant applications are to be evaluated. And that is perfectly constitutional.”
Scalia argued that the NEA’s procedural misinterpretation of the statute renders meaningless another provision, 959(c), which already requires the NEA chairperson to ensure that panels are composed of individuals reflecting diverse artistic and cultural points of view. A basic tenet of the judicial interpretation of statutes is that any interpretation that renders other provisions superfluous is disfavored.
Scalia and Thomas felt that the majority upheld the statute by gutting it, robbing it of its meaning and misrepresenting its purpose, in deciding that the “decency and respect” provision was merely advisory and not the absolute obligation that Congress clearly intended. “That law unquestionably disfavors—discriminates against—indecency and disrespect for the diverse beliefs and values of the American people.” The only question, then, is whether such discrimination is acceptable. Clearly, to Scalia and Thomas, it is.
“Those who wish to create indecent and disrespectful art are as unconstrained now as they were before the enactment of the statute…They are merely deprived of the additional satisfaction of having the bourgeoisie taxed to pay for it. It is preposterous to equate the denial of taxpayer subsidy with measures ‘aimed at the suppression of dangerous ideas.‘”
Scalia articulated the essence of his difference with the Court in his view that the difference between funding speech and abridging it is “a fundamental divide, on this side of which the First Amendment is inapplicable.”
The Sole Dissent
Justice Souter wrote the sole dissent against both the Court’s reasoning and result. He agreed entirely with Scalia and Thomas that the majority misinterpreted the “decency and respect” provision as advisory, contrary to the specific legislative intent of the statute. Further, he concurred that the Court’s interpretation of the law, as merely a procedural matter, violated the plain language of the law and rendered other provisions superfluous. Souter fully believes, as does Scalia and Thomas, the statute on its face has the teeth that Congress intended.
However, he differed with the concurrence regarding the constitutionality of such viewpoint- based discrimination in a subsidy scheme. In responding to the bill’s co-sponsor, who stated “works which deeply offend the sensibilities of significant portions of the public ought not to be supported with public funds.” Souter said that:
“There is, of course, nothing whatsoever unconstitutional about this view as a general matter. Congress has no obligation to support artistic enterprises that many people detest. The First Amendment speaks up only when Congress decides to participate in the nation’s artistic life by legal regulation, as it does through a subsidy scheme like the NEA. If Congress does choose to spend public funds in this manner, it may not discriminate by viewpoint in deciding who gets the money.”
This is the essence of the dissent and the difference between Souter and the rest of the Court. Souter makes the point that, when the government is using money to speak, it can say whatever it wants. In fact, that’s the purpose of government—taking stands, making laws, and advocating ideas. When it buys, it can buy whatever it wants. As Franklin D. Roosevelt noted when commissioning public murals for government buildings during the Depression, “I can’t have a lot of young enthusiasts painting Lenin’s head on the Justice Building.” He was buying and, therefore, free to make his choice about viewpoint and content. But when government is a patron, neither speaking nor buying, it must do so in a viewpoint-neutral manner.
The dissent rejected the idea that when government is a patron it can be exempt from the First Amendment’s requirement of viewpoint neutrality. Souter pointed to numerous cases where the Court has espoused the idea that government may not act on viewpoint when it “does not itself speak or subsidize transmittal of a message it favors but instead expends funds to encourage a diversity of views from private speakers.” Souter concluded that “when the government acts as patron, it may not prefer one Iawfully stated view over another.”
RAMIFICATIONS
The majority opinion of the Court appealed to certain groups, while the Court’s rationale appealed to those groups in diametric opposition. That is how anyone anywhere along the political spectrum could claim some sort of victory. The concurrence and dissent articulated the various points of debate and set the stage for future conflicts once this ruling starts to affect the body politic.
The NEA has stated that it plans to continue with business as usual, simply implementing the statute by ensuring diversity in the composition of the advisory panels. Congress may approve and move on to other issues. Though, if Congress feels its purpose is unfulfilled, it may enact more restrictive provisions on content and viewpoint, despite the Court’s cautionary proviso to the contrary.
Congress may also replace Chairman Ivey with someone more conservative who would assert the prevailing congressional will. Of course, Congress may choose to end arts funding altogether, if it cannot say how money should be used.
Another result of the Court’s decision may be further court challenges, as the Court left open the possibility that the statute, as applied in a particular circumstance, may violate viewpoint-neutral requirements under the First Amendment. However, as the dissent pointed out, “The NEA does not offer a list of reasons when it denies a grant application, and an artist or exhibitor whose subject raises a hint of controversy can never know for sure whether the decency and respect criteria played a part in any decision by the NEA to deny funding.” Therefore, such future challenges may have a tough evidentiary road to travel in proving their cases.
The greatest consequence of the Court’s ruling may be the proverbial “chilling effect” on the funding and creation of art in America. The majority opinion claimed that the “decency and respect” provision should have no appreciable effect on the creation and exhibition of controversial art, and the concurring opinion argued that the ruling has rendered the statute impotent, preventing it from accomplishing its constitutional and appropriately “chilling” purpose. However, the dissenting opinion claimed that, even in its emasculated form, creators and exhibitors of potentially controversial art may trim their work to avoid anything likely to offend or may not seek NEA funding at all. The statute, the dissent claims, will create a “timid aesthetic.”
In addition, Souter points out that, because NEA grants are often awarded as matching awards for private, corporate, and foundation funding, the chilling effect is significantly magnified beyond the amount of the grant itself. This magnification is even greater when one considers that an NEA grant constitutes a “seal of approval” and allows artists and institutions to attract even greater private funding than any matching funds, as well as to create greater public awareness.
Further, the chilling effect could even impact NEA grants for non-controversial work from institutions and individuals who may have created or exhibited “disrespectful” or “indecent” art in the past using private funds. For example, the recent controversy over Manhattan Theatre Club’s planned production of Terrence McNally’s Corpus Christi might affect the group’s ability to get NEA grants far less controversial projects and to attract private, corporate, or foundation funding in the future.
CONCLUSION
Once, Congress decided to foster and publicly fund the arts in America, with as little political oversight as possible. Why? When people were jobless, homeless, and hungry, why did the government tax people to spend money on art that was essentially free of governmental approval? As the NAAO’s brief to the Court pointed out:
“The government does not take issue with the lower court’s findings that artistic expression, no less than academic speech, journalism or a soapbox address, is at the core of a democratic society’s cultural and political vitality…Congress recognized as much in creating the NEA. (‘Democracy demands wisdom and vision in its citizens and…must therefore foster and support…access to the arts and humanities.’) The Senate report confirms that the arts ‘are at the center of our lives and are of prime importance to the nation and to ourselves.’ . . . Like universities and the press, art plays a critical checking function, providing alternative perspectives on the world and often challenging the status quo. This is why artists, along with universities and the press, am often the first targets of repressive regimes.”
Something to think about before next Independence Day weekend rolls around.
September 1998
NEA FUNDING: A TIMELINE
>SEPT. 1990
Congress creates the National Endowment for the Arts and the National Endowment for the Humanities. The Congress states, “The practice of art and the study of the humanities requires constant dedication and devotion and that, while no government can call a great artist or scholar into existence, it is necessary and appropriate for the Federal Government to help create and sustain not only a climate encouraging freedom of thought, imagination, and inquiry but also the material conditions facilitating the release of this creative talent.”
>SPRING 1989
NEA grants partially fund Robert Mapplethorpe’s exhibit The Perfect Moment and Andres Serrano’s work Piss Christ. Sen. Jesse Helms (R-N.C.) introduces legislation to bar the NEA from funding “obscene” work.
Congress reduces the 1990 NEA appropriation by $45,000, the amount given to Mapplethorpe and Serrano, and requires NEA grant recipients to certify their works are not obscene.
Congress states, “None of the fund... may be used to promote, disseminate, or produce materials which in the judgment of the National Endowment for the Arts... may be considered obscene, including but not limited to, depic- tions of sadomasochism, homoeroticism, the sexual exploitation of children, or individuals engaged in sex acts and which, when taken as a whole, do not have serious literary, artistic, political, or scientific value.”
>JUNE 1990
The NEA informs Karen Finley, John Fleck, Holly Hughes, and Tim Miller (the “NEA 4”) that they have been denied funding. The artists bring suit against the NEA for denying their grant applications, despite the recommendations of the NEA advisory panel.
An independent commission of constitutional law scholars (appointed by Congress) recom- mends that the NEA rescind the certification requirement (see Fall 1989) and cautions against legislation setting forth any content restrictions.
> NOV. 1990
Congress amends the NEA’s enabling statute to state, “The Chairperson shall ensure that artistic excellence and artistic merit are the criteria by which applications are judged, taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public. Such regulations and procedures shall clearly indicate that obscenity is without artistic merit, is not protected speech, and shall not be funded. Projects, productions, workshops, and programs that are determined to be obscene ore prohibited from receiving financial assistance.”
> JAN. 1991
In Bella Lewitzky Dance Foundation v. Frohnmayer, a federal District Court overturns the obscenity provisions of the 1990 NEA appropriation, finding the certification requirement unconstitutionally vague under the Fifth Amendment and a violation of the First Amendment. Though these obscenity provisions are struck down, the obscenity provision amended to the NEA’s enabling statute [see Nov. 1990] remains in force and unconstrued by the courts.
>MAR. 1991
The National Association of Artists Organiza tions is added as a plaintiff to the NEA 4 challenge of the “decency and respect” provision [see Nov. 1990].
>MAY 1991
In Fordyce v. Frohnmayer, two taxpaying citizens allege that the NEA’s sponsorship of artist David Wojnarawicz’s Tongues of Flame, which featured images of Christ mainlining heroin, has violated the establishment clause of the First Amendment and caused them both “spiritual injury.” The suit is dismissed, because the plaintiffs are not able to prove actual injury.
> JUNE 1992
The District Court finds the NEA statute is unconstitutional on its face and prohibits its enforcement, ruling that the “decency and respect” provision “fails adequately to notify applicants of what is required of them or to circumscribe NEA discretion” [see Mar. 1991]. The Justice Department appeals the decision.
> JUNE 1993
The NEA settles with the “NEA 4” for denying their grant applications [see June 1990]. However, the NAAO challenge to the “decency and respect” provision still waits for a decision by the California appellate court.
> OCT. 1994
The NEA stops allowing grantees to subgrant to third parties. Congress later incorporates this ban as part of the 1996 NEA appropriations.
> FALL 1995
In its 1996 NEA appropriation, Congress prohibits grants to individual artists, except in literature, and eliminates seasonal or general operating support grants to arts organizations. Organizations must now apply for specific projects.
> NOV. 1996
The Court of Appeals (Ninth Circuit) upholds the District Court’s decision holding “decency and respect” statute unconstitutional on its face [see June 1992].
> AUG. 1997
After being denied a rehearing by the appellate court, the Justice Department files a request for review and reversal with the Supreme Court, which agrees to hear the case.
> FALL 1997
As part of its 1998 NEA appropriations, Congress appoints six members to the National Council on the Arts, which advises the NEA chairperson on policies, programs, grants, and procedures. Congressional members serve in a non-voting, ex officio capacity.
> JUNE 1998
The Supreme Court reverses the lower court and finds the NEA statute is constitutionally valid on its face [see Nov. 1996].
