Panel Seeks to Bar Funding for ‘Obscene’ Art

The fragile compromise to resolve the censorship controversy enveloping the National Endowment for the Arts inched closer to resolution Monday with release of the final draft of a House-Senate conference committee report detailing restrictions on artwork the endowment may support.

But the final product of the conference committee deliberations included significantly less restrictive language than conservatives first proposed. The report includes a provision that no national endowment money “may be used to promote, disseminate or produce materials, which in the judgement of the NEA and the National Endowment for the Humanities, may be considered obscene.”

Picking up language first introduced by Sen. Jesse Helms (R-N.C.), the report also stipulates that artwork in any media may be denied support if they include “depictions of sadomasochism, homoeroticism, the sexual exploitation of children or individuals engaged in sex acts which, when taken as a whole, do not have serious literary, artistic, political or scientific value.”

However, legal experts and even the head of the House delegation to the conference committee, Rep. Sidney Yates (D-Ill.), said doubts may remain over the constitutionality of some provisions of the compromise, which bar national endowment support of “obscene” artwork in any medium.

And separate objections were raised Monday by arts-law experts and a homosexual-rights group over the possibility that the compromise agreement language--which places special emphasis on prohibiting homoerotic artwork--may make the endowment’s funding-review panels reluctant to approve grants for artwork dealing with gay subject matter.

In an interview Monday, Yates said he may attempt to bring the compromise agreement up for a final vote in the House as early as this afternoon. Unanimous consent of all members of the House would be required for the move and Yates said he was uncertain whether conservative opponents of federal arts funding would agree.

If the conservative congressmen block Yates’s attempt to bring the matter to a vote today, Yates said, final action in the House would probably not come until Thursday.

The final wording of the compromise report reflected results of the fractious debate within the conference committee and, separately, on the floor of the Senate late last week.

Helms attempted unsuccessfully to push through the Senate a non-binding resolution restating support for and amendment to an NEA funding bill Helms first offered in July that would have outlawed virtually all “indecent,” “offensive” and “obscene” artwork.

Yates said some question remains whether the provisions of the funding bill would pass a strict constitutional test. He noted that the conference committee language is patterned in part after wording developed by the U.S. Supreme Court in a landmark 1972 pornography case, Miller vs. California.

“My guess is that it would be constitutional,” Yates said, “but I don’t know the answer to that, really, in view of the fact that the Supreme Court has not been precise in its definitions of obscenity.”

John E. Frohnmayer, the Portland, Ore., attorney who was confirmed by the Senate on Friday as the endowment’s new chairman, said in a telephone interview that, while he had not seen the final version of the conference committee report, the new language “should be easy enough to administer.”

But Frohnmayer expressed some indirect concern about how the arts endowment could devise workable standards to weed out “obscene” works that lack any artistic merit because “my concern is that obscenity has never been an easy item to define or adjudicate, except on a case by case basis.”

James Fitzpatrick, a prominent arts lawyer with the Washington firm of Arnold & Porter, contended that the wording in the conference committee report is “strangely drafted,” since it includes only two of three major elements of the Supreme Court’s obscenity formula in the Miller case.

But Fitzpatrick contended that, since the conference committee report deleted a majority of what arts advocates perceived as the most worrisome language in the original Helms amendment, “one has to say that this is a major victory for those who are concerned about freedom of artistic expression in this country.”

However, Fitzpatrick and the legislative director for the National Gay and Lesbian Task Force said that the committee report’s retention of Helms’s original wording underscoring the objectionable nature of artwork with homoerotic and sadomasochistic themes could seriously inhibit arts projects in a variety of media that have any discernable gay emphasis.

“It was my feeling that this (compromise language) was an attempt to gay-bash,” said Peri Jude Radecic, of the task force. “I do feel this is an attempt to attack the gay and lesbian community,” she said. “We are not happy with the final product. This is unacceptable, using the gay community as sort of the whipping post here.”

“By retaining the language references to sadomasochism, and particularly to homoeroticism,” Fitzpatrick said, “one is going to put out a special red flag to the NEA to steer clear of those works involving questions of gay rights or life style.”

The conference committee report also retained restrictions on federal support to two regional arts agencies that organized controversial shows last year. The report stipulates that any endowment grant to the Southeastern Center for Contemporary Art in Winston-Salem, N.C., and the Institute for Contemporary Art at the University of Pennsylvania must be disclosed to Congress 30 days before it is made and that the endowment must explain what the arts project involves and how the endowment justified awarding it.

“I think we could work with the language,” said Ted Potter, the center’s executive director, who reacted cautiously to the final report language. “I think a lot of damage has been done, but I think we’ve come out of it pretty well.” Potter said his organization would comply with the strictures even if it doesn’t like them because, he contended, the overall effect of the conference committee compromise represents a defeat for Helms in his attempt to impose broad-ranging, strict content controls on all federally supported artworks.

“Sen. Helms has been saying he’s won total victory,” said Potter. “But that dog won’t hunt. His goal was to demonize the American artistic community and dismantle the NEA and he failed on both counts.”