Language in NEA Funds Bill Stirs Debate

The National Endowment for the Arts moved Thursday to head off some unexpected political fallout: Some legal experts have concluded that a House measure intended to resolve the arts agency’s censorship crisis will not outlaw “obscene” art, after all.

Thursday’s concentrated effort at political crisis prevention came as Senate conservatives stalled for time by holding up approval of a House-passed compromise endowment funding bill that purports to bar federal support for “obscene” artworks. Senate approval of the appropriation bill, which includes the Interior Department and several other agencies besides the endowment, had been expected as early as Tuesday night, but got bogged down.

Sen. Jesse Helms (R-N.C.) and other conservatives were reportedly upset by an interpretation of wording in a conference committee compromise that was offered earlier this week by Rep. Sidney Yates (D-Ill.). In an exchange with Rep. Dana Rohrabacher (R-Lomita), Yates said funding of “obscene” artwork--which played a crucial role in precipitating the endowment’s crisis earlier this year--was not effectively prohibited.

Helms did not respond to requests for his reaction. Sen. Robert Byrd (D-W.Va.), who is charged with maneuvering the endowment compromise funding bill through the Senate, said only “good-bye” and slipped through a doorway when questioned about the arts-content compromise.

The permissive interpretation by Yates, which surprised Rohrabacher, did not prevent overwhelming House approval of the compromise. But on Thursday, endowment Chairman John E. Frohnmayer acknowledged that the agency was increasingly concerned that the apparently permissive take on the wording might endanger Senate approval of the compromise and return the endowment to the crisis mentality that has virtually immobilized its operations since early June.

“A large number of congressional people on both sides of the Capitol are concerned that we do not have to fight this kind of battle again,” Frohnmayer said Thursday in a telephone interview from Oregon, where he is vacationing.

“As I have said repeatedly, I am not at all interested in funding obscene art. I don’t believe that’s the national endowment’s function. We don’t consider this just business as usual.”

Repeatedly and emphatically, Yates told Rohrabacher that “obscene” arts projects in a variety of media could receive federal financial support if they had exemplary artistic or literary merit. Endowment sources, speaking on the condition they would not be named, said the wording appeared to be so vague that virtually no artistic subject matter would be taboo.

The increasing prominence of such interpretations prompted senior national endowment staff members to contact reporters in an ironic attempt to emphasize that the compromise wording isn’t powerless, after all, but would achieve a degree of arts-content regulation, after all. Frohnmayer noted that “there’s a spirit of the law that we need to pay attention to. I don’t want this squabble to continue.”

The issue appeared to turn on a single insertion of the word and in the phrasing of the conference committee report. The report held that “none of the funds” appropriated for the endowment could be used to “promote, disseminate or produce materials . . . considered obscene, including . . . sadomasochism, homoeroticism, the sexual exploitation of children or individuals engaged in sex acts.”

But the wording added another crucial phrase: “ and which, when taken as a whole, do not have serious literary, artistic, political or scientific value.” The wording is taken almost verbatim from a 1972 U.S. Supreme Court pornography decision, Miller vs. California, but the structure of the sentence seemed to legal experts to make clear that, to be refused on content grounds, an art project would have to be both obscene and devoid of significant artistic merit.

Frohnmayer, a lawyer and First Amendment expert himself, declined repeatedly to offer his own interpretation of the wording. But James Fitzpatrick, a prominent arts lawyer with the prestigious firm of Arnold & Porter here, said that his own reading of the wording led him to conclude that it fails completely to achieve any degree of subject matter control.

It was that control that Helms and other conservatives in Congress demanded when they declared war on the endowment earlier this year and attempted to withdraw all funding for the agency or impose such severe restrictions on what it could support that the endowment would have been rendered unable to operate.