Constitutionality of NEA Bill Questioned : Legal: The general counsel for the arts endowment says anti-obscenity provisions fail the test on at least three grounds.

Wording in a 1990 funding bill intended to ban federal grants to obscene artworks by the National Endowment for the Arts fails tests of constitutionality on at least three different grounds, according to the arts endowment’s general counsel.

Julie Davis, the NEA’s top lawyer, questioned the constitutionality of the controversial obscenity-control language in an appearance Tuesday before a House appropriations subcommittee chaired by Rep. Sidney Yates (D-Ill.). She expanded on her comments in a telephone interview from Washington on Wednesday.

Davis’s multi-pronged challenge to the obscenity wording emerged as the arts endowment attempts to gauge the extent to which arts groups and individual artists may be willing to go in protesting requirements that they sign acknowledgements of the language in order to get grants.

That she spoke out so forcefully on the constitutionality of the wording was seen by many arts observers as a significant statement of the degree to which it has intensified the yearlong NEA political crisis. At a hearing last week--and again Tuesday--Yates objected strenuously to the NEA requiring grantees to sign what Yates has characterized as an anti-obscenity loyalty oath.

Despite what Davis characterized as the clear failure of the wording to pass muster in accordance with the Constitution, however, she defended the NEA’s decision to require artists to execute official acknowledgments that they will abide by it. “I think that is the only decision the endowment could make,” Davis said in the telephone interview.

“I understand the concerns that grantees have. I share it. But that doesn’t change the fact that this law is on the books and the endowment is charged with abiding by it.”

Davis noted that for a court challenge to the law to be made, the NEA would have to deny a grant to someone or take action against an artist who had already received money for producing work that was allegedly obscene and without artistic merit.

She emphasized that the NEA is unaware of any grantee who could make such a test case. Davis is a former legal associate of NEA Chairman John E. Frohnmayer; he was previously a Portland, Ore., trial lawyer and media attorney. Davis went significantly farther in publicly raising constitutional objections to the NEA legislation than Frohnmayer has.

Davis said the wording is a mix of language from a landmark 1973 U.S. Supreme Court pornography case and wording drafted last year by Sen. Jesse Helms (R-N.C.) in an unsuccessful attempt to impose even stricter content controls on the NEA.

But she said even the existing wording can be interpreted constitutionally as imposing an illegal prior restraint on art that often has not been created at the time an NEA grant is made. “The Supreme Court has repeatedly said you can’t tell someone they can’t do something (in advance) because it sounds like what they might do would be illegal,” Davis said. “You have to wait until the act is done.”

Moreover, she said, the wording of the statute could be read to prohibit funding of work that is not obscene, but merely indecent--which courts are powerless to prohibit.

Davis said the wording also places the NEA in the role of deciding what is--or may be--obscene, a role for which the endowment has no administrative capabilities. The NEA, she said, is not empowered to conduct hearings necessary to resolve any potential obscenity questions. The Supreme Court, she noted, has also ruled that there can be no uniform federal obscenity standard--with the right to judge what is obscene reserved for local communities.

“In this situation, there are no due process safeguards,” she said. “It has given me great pause that a federal agency in Washington has been charged with making these types of decisions.”

Finally, said Davis, the wording in the funding bill, which inserts a prohibition on depictions of practices like homoeroticism, imposes requirements that the Supreme Court would be likely to throw out as too subjective. “The prohibition strays too far from the Supreme Court definition of obscenity,” she said, and becomes unconstitutionally vague.

“It’s just too subjective and it allows for reasonable people of like mind to disagree,” she said. “We are struggling . . . struggling to understand what the language means.”

BACKGROUND

The controversy over anti-obscenity regulations in the context of grants by the National Endowment for the Arts grows out of one paragraph in the NEA’s 1990 funding bill, which applies to all grants given out this year--but not in any previous year. The paragraph says: “None of the funds authorized to be appropriated for the National Endowment for the Arts . . . 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 depictions 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.”