Lawsuit Filed Over Pledge in NEA Grants : Funding: A New York school calls anti-obscenity language a restraint on artistic freedom of expression. Litigation adds a new dimension to the controversy.

The New School for Social Research in New York City filed suit against the National Endowment for the Arts Wednesday--arguing that a requirement that NEA grant recipients pledge not to produce obscene work is an illegal restraint of artistic free expression.

In filing the action in U.S. District Court in Manhattan, the New School--which in recent weeks has retained the prominent New York First Amendment expert Floyd Abrams as an adviser--has introduced a new dimension into the political controversy over the NEA’s artistic independence.

The New School filed the lawsuit after concluding, its president said, that accepting a $45,000 grant from the NEA to redesign a courtyard at its Greenwich Village campus would require it to pledge to obey disputed anti-obscenity language in the NEA’s 1990 appropriation bill. The NEA’s own general counsel, Julie Davis, has said unequivocally that, in her opinion, the language in the bill is unconstitutional.

The suit, which was assigned to Dist. Court Judge Louis Stanton, seeks a declaratory judgment--a finding that a law is unconstitutional before anyone has actually been charged with violating it--and an injunction against an NEA requirement that grantees receiving 1990 funds sign a form acknowledging that they will comply with the pornography restrictions.

Under the law in question, the NEA is precluded from providing money to support art the endowment judges to be “obscene, including but not limited to depictions of sadomasochism, homoeroticism, the sexual exploitation of children or individuals engaged in sex acts” when the art in question lacks “serious literary, artistic, political or scientific value.”

“We believe the NEA’s transformation of an already unconstitutional instruction given to it by the Congress into an oath required of all grant recipients greatly amplifies the chilling effect of the underlying law,” said a statement released by the New School.

Jonathan Fanton, an American history scholar who is the New School’s president, conceded that, at first flush, the decision to sue over the grant for a design project may seem an unlikely forum in which to raise a constitutional challenge against an already beleaguered federal agency. (The project is slated to engage internationally known sculptor Martin Puryear, and architect Michael Van Valkenburgh.)

But in an interview, Fanton said the New School had decided to take on the NEA largely based on his own reading of 20th-Century American history, which led him to conclude that political chemistry may be developing in the country today that is ideologically similar to the early stages of the McCarthy era of the 1950s and the Red Scare after World War I.

“I see the stakes here as much higher than the grant or the NEA,” Fanton said. “It seems to me that there are times in American history when the society seems less strong (than at others) on First Amendment rights.

“We tend to be prepared to qualify the First Amendment when we are having confidence problems as a nation. I see some early warning signs. You may think of McCarthyism as a phenomenon of the 1950s, but it owes its origins to the 1940s. (Developments like) McCarthyism do not just happen, full blown, out of nowhere.”

The decision to sue the NEA came after nearly a month of correspondence between the New School and NEA Chairman John E. Frohnmayer in which the New School raised a series of broad objections to the obscenity language.

Frohnmayer has repeatedly said in public appearances, interviews and private conversations that the wording is unnecessary and superfluous. He has actively sought to persuade congressmen and senators to abandon it in future legislation bearing on the arts agency.

The filing of the court action Wednesday afternoon puts the arts endowment in the curious position of being the key defendant in a lawsuit in which its own top officials have said they agree with the legal position taken by the party suing them. The New School, a respected, progressive university, operates instructional divisions in the liberal arts, social sciences, art and music--most in New York City, but including the Otis/Parsons Art Institute in Los Angeles.

In one letter to Frohnmayer, Fanton asked whether the legal effect of signing the anti-obscenity pledge could cause the New School to be subject to disciplinary action if ever an art exhibit shown in the courtyard contains work that is judged to be obscene.

Fanton noted that the wording in the NEA funding bill--a mixture of passages from a landmark 1974 U.S. Supreme Court decision, and wording proposed to rein in the NEA by Sen. Jesse Helms (R-N.C.)--may conflict with existing New School policies guaranteeing academic freedom. The wording, Fanton argued, puts academic institutions in a difficult position.

“We believe it would be a sad outcome of the NEA obscenity condition if some of this nation’s best arts institutions and individual artists severed relationships with the National Endowment for the Arts,” Fanton wrote Frohnmayer on April 27. “And yet the present dilemma threatens just such a result.”

Frohnmayer declined to comment on the New School litigation and the arts endowment declined to say immediately how it would respond to the lawsuit.

The NEA’s Davis and other lawyers contend the NEA funding law is unconstitutional because the obscenity language is vague and constitutes an unlawful prior restraint on creation of artwork. Lawyers have also asserted the wording transfers judgment of what is obscene to a federal agency--the NEA--when the Supreme Court has repeatedly held that such decisions can only be made by local communities.

The suit by the New School was the second piece of litigation to come into play in the NEA controversy this week. On Monday, New York City artist David Wojnarowicz sued the American Family Assn. and its director, the Rev. Donald Wildmon, for copyright violation and defamation of character over Wildmon’s distribution of severely cropped versions of Wojnarowicz images, which Wildmon characterized as obscene and offensive.

In a May 2 letter to Fanton, the NEA chairman--a former Portland, Ore., trial lawyer--said of the controversial law: “I am obligated to uphold it until such time as it is withdrawn, deemed unconstitutional or otherwise modified.”

“I cannot tell you how to proceed either in a legal forum or otherwise,” Frohnmayer said. But “we too have severe questions about the constitutionality of this law. I share . . . your concern about the effect of this law; about increasing constrictions on the ability of artists to speak freely through their art, and about an increasingly intolerant, but vocal part of our society.”

The lawsuit was filed despite a Tuesday night phone call from NEA counsel Davis to New School lawyer Abrams, in which she tried to persuade him to drop the proceedings.

The decision to file the lawsuit came after weeks of consideration at the New School to reject the NEA money outright, a tactic already embraced by at least two artists--New York theater producer Joseph Papp and Venice choreographer Ferne Ackerman.

Sources familiar with the decision said the choice to sue to effect constitutional invalidation of the NEA obscenity statute came after New School officials decided the situation required action with more far-reaching implications than simply turning down the money.

It was not clear what direct effect the New School lawsuit would have on pending bills to renew the NEA for another five years and provide funds for it in 1991. Even if the New School petition is successful in getting an injunction against enforcement of the law, key congressmen said the legal battle would likely have little bearing on decisions in Congress on the NEA in the next few weeks.

“I would guess most members (of Congress) would say, ‘Let the Supreme Court decide it,’ ” said Rep. Sidney Yates (D-Ill.), a key NEA supporter. “It (the legal dispute between the NEA and the New School) wouldn’t be controlling.”