Lewitzky Sues the NEA Over Obscenity Issue : Arts: ‘The NEA has now taken on the role of art censor,’ the choreographer said, ‘and that’s the wrong role for government.’

Choreographer Bella Lewitzky sued the National Endowment for the Arts on Thursday--seeking an injunction against the federal agency’s requirement that grantees certify they will refrain from creating obscene work. Last month, Lewitzky turned down a $72,000 NEA grant in protest of the requirement.

In filing the court action in U.S. District Court in Los Angeles, the Bella Lewitzky Dance Foundation became the second mainstream cultural organization to go to court in the dispute over the NEA’s insistance that grantees sign what critics have charged amounts to an anti-obscenity loyalty oath.

There was no immediate indication of when a hearing might be held on the injunction request.

Lewitzky is represented by the law firm of Morgan, Lewis & Bockius, as well as by two attorneys for the People for the American Way organization.

“The NEA has now taken on the role of art censor,” Lewitzky said in a prepared statement. “And that’s precisely the wrong role for government.”

In an unrelated development Thursday, three prominent actors and New York theater producer Joseph Papp met in Washington with dozens of congressmen in a Capitol Hill blitz to try to drum up support for the NEA, which faces votes in the House and Senate on bills to extend its life for another five years.

“I think we made an enormous amount or progress,” Papp said. “We told them to begin to think in positive terms, rather than in restrictive terms.” Papp himself turned down $50,000 in NEA funding earlier this year as a protest over the anti-obscenity oath requirement.

Papp was accompanied by actors Kathleen Turner, Kevin Kline and Morgan Freeman. In a telephone interview, Turner said the three celebrities emphasized that “we have all worked and, in many cases started in, theaters and organizations that had NEA support.

“I think a lot of the sensationalism over a few grantees (that provoked the political protest) doesn’t show the other half of the picture, which is the success of the NEA.”

The Lewitzky court complaint noted that the internationally acclaimed choreographer had received numerous mainstream arts awards and prestigious fellowship grants--along with more than $1.4 million in NEA funding since 1972.

Despite this record, the Lewitzky complaint asserted, the requirement to execute the anti-obscenity certification “impermissibly places on the foundation the burden of determining what may be considered obscene in the judgment of the NEA” amounting to “an unconstitutional restriction of the right of freedom of expression.”

Julie Davis, the NEA’s general counsel, said she had not seen the Lewitzky court complaint and could not comment on it.

However, Davis disclosed that since the obscenity certification began earlier this year, about 30 NEA grantees who protested the grant conditions have been sent form letters notifying them that recipients of NEA money are not free to select conditions of funding they will obey or not obey.

The number of letters appeared to suggest a protest somewhat larger than NEA officials had previously estimated. Last week, the NEA said only about a dozen protest letters had been received serious enough to precipitate a formal, written reminder from the agency that the obscenity certification cannot be ignored. The number of protests was still comparatively small, however. About 10 grantees have rejected awards outright, according to official NEA tallies and information gathered from other sources.

The NEA said Thursday that more than 2,000 artists or arts groups have been notified they are being offered grants in the 1990 budget year--the only term in which the obscenity stricture so far applies--and that about 700 grantees have returned documents on which they are required to execute the signed acknowledgement of the anti-obscenity condition.

The Thursday court action is the latest result of a dispute between conservatives in Congress and the NEA that began last year after protests from right wing groups over federal support of art shows containing controversial photographs. Last fall, Congress enacted a unique provision in the 1990 funding bill for the arts NEA and the National Endowment for the Humanities outlawing support for obscene work that does not meet high artistic or scholarly standards.

Earlier this year, the NEA implemented the requirement that grantees sign the specific anti-obscenity certification--arguing that, under the law, it had no choice but to implement the oath requirement. Critics have noted repeatedly that the humanities endowment has never followed suit and that humanities grantees face no similar certification requirement.

In late May, the New School for Social Research in New York City filed a related action against the arts endowment in federal court in New York, in which a judge has set a tentative hearing date of July 31 on a request for an order enjoining the NEA from requiring the obscenity certification. The New School is the institutional parent of the Otis/Parsons Art Institute here.

But while both the Lewitzky and New School cases seek the same sort of court order striking down employment of the certification, and both frame their arguments in the context of the First and Fifth Amendments to the Constitution, the Lewitzky case appeared to take a separate legal tack from the New York complaint.

Lewitzky also argued that guidelines issued earlier this week by the arts endowment in an attempt to clarify the obscenity requirements, had not resolved constitutional problems. The Lewitzky complaint charged that, even after release of the guidelines, the rules establish the NEA’s administrative apparatus--and not a court of law--as the arbiter of what is construed to be obscene.