Restrictions on Arts Grants Set by Costa Mesa : City Council: Unanimous action appeases neither critics nor activists. Artists fear prior restraint on their work.

The Costa Mesa City Council approved new arts grant restrictions Tuesday forbidding the use of city money for “obscene matters,” or “for the conduct of any religious or political activity.” But the action appeased neither critics, who had lobbied for even stricter regulations on arts groups, nor arts activists who questioned the need for such measures.

“Where is the problem that needs to be addressed?” asked Martin Benson, co-founder and artistic director of South Coast Repertory. It was an SCR flyer urging patrons to support the National Endowment for the Arts that prompted the move in Costa Mesa to attach new limitations to city arts grants. Benson added later that he was “deeply puzzled” by the entire controversy when there had been no real questions regarding works funded by the city.

The new law will become effective with distribution of $175,000 in 1990-91 arts grants to 13 local groups, from nationally recognized SCR to the tiny Costa Mesa Art League. Its approval is the culmination of efforts begun by city officials several weeks ago to address complaints raised by one resident critical of the use of city money by arts groups.

The 4-0 vote to adopt language drafted by City Atty. Thomas Kathe came after 1 a.m., near the end of a lengthy Monday night meeting attended by about a dozen arts advocates, several of whom publicly opposed any restrictive language.

Rebecca Jurado, a general counsel for the American Civil Liberties Union, argued that the new grant agreement is not clear about who will decide what is obscene, and that it leaves the door open for prior restraint of art and artists vying for public funds. Jurado said the ACLU will “investigate” whether to take further action.

Meanwhile, the Costa Mesa resident who launched the grants issue in June, charging that South Coast Rep had used city funds to pay for its pro-NEA flyer, expressed disappointment that the city did not adopt broader restrictions he had proposed.

John Feeney told the council that under the adopted agreement, the city “would have to fund the Ku Klux Klan in a sheet decorating contest.” Referring to artworks in the NEA controversy that he believes denigrates Christianity, Feeney said, “I don’t want to pay for the rope they want to hang me with.”

The new obscenity clause states that: “Grantee shall not use grant monies for obscene matters as defined in California Penal Code Sections 311 through 312.5, inclusive.”

Kathe said in a written report, and restated at the meeting, that the obscenity determination would have to be made by the courts, and that the clause merely allows the city to terminate a grant and recoup funds if a recipient is convicted of using the city money to create obscene matters. It does not, he said, allow prior restraint.

Jurado, however, said the language is unclear on the issue of who determines what is obscene, and pointed to remarks by Councilwoman Sandra Genis at the meeting to underscore her fear that city officials will interpret the language as a go-ahead for “pre-grant determination” of art works.

“The taxpayers expect us to make the decisions regarding city money,” Genis said in the meeting. “Like it or not, the council’s standards have to be applied because we were elected by the voters.”

Genis also said she was disappointed that the Feeney restrictions could not be adapted and hinted that she may bring the matter up again.

The new agreement “is sending out a message that (the council is) hostile to the arts,” Naida Osline, a leader of the newly formed Long Beach/Orange County Coalition for Freedom of Expression, charged Tuesday.

“It really points out the need to get the arts community more involved in this issue, on a local level as well as the national level,” she added. “We need to take some kind of official action, but I don’t know what yet.”

The city came under fire from the ACLU and arts advocates when the City Attorney’s office was directed by the council at its last meeting to draft a new cultural arts grant agreement, and was asked by Mayor Peter F. Buffa to use as a model Feeney’s proposal that grant recipients promise “to neither visually nor verbally, deliberately denigrate anyone’s race, religion, color, national origin, ancestry, physical handicap, marital status, sex or age.”

That language is similar to restrictive wording proposed by Rep. Paul Henry (R-Mich.) that would oblige the NEA to “ensure” that work it supports “does not deliberately denigrate the cultural heritage of the United States, its religious traditions or racial or ethnic groups” and does not “violate prevailing standards against obscenity or indecency.”

Kathe rejected the Feeney language in his report, saying it “invites unbridled subjective discretion on the part of the city to determine whether to approve the grant based on the content of the art material.

“This type of prior restraint or censorship,” the report continued, “has been repeatedly held unconstitutional by the United States Supreme Court.” According to Kathe’s report, however, the obscenity clause was added to “address the concerns expressed by Mr. Feeney.”

Language regarding political and religious activity is consistent with the California Political Reform Act’s prohibition of the use of public funds for political campaigns and the state Constitution’s prohibition against using government funds to promote religious activity, according to Kathe’s report.

The brouhaha started when the city, acting on a complaint by Feeney, delayed distribution of $175,000 in grants to 13 arts groups while investigating whether SCR used any city funds in printing and distributing flyers supporting the NEA. Such an expenditure would have put the city in the position of endorsing a political activity, according to Buffa.

The funds, including $30,000 for SCR, eventually were released when the theater company assured the city that no public money had been used for the flyer.

SCR’s Benson, while saying he was relieved at rejection of the Feeney proposals, questioned the council on the need to add any restrictive language to the grants agreement, even if it merely restated California law.

Benson said later he “certainly felt on the defensive” when addressing the council.

In his comments, Buffa tied the issue to NEA funding of an exhibit of photographs by Robert Mapplethorpe, which helped to touch off the entire funding debate. Buffa called the photos “objectionable and clearly obscene” and said he did not want the city to “replicate the disastrous incidents” of funding such works.

“I don’t support any constraints on artistic content,” Buffa said, “as long as it’s artistic content.”

(Orange County Edition) BACKGROUND

Acting on a complaint by resident John Feeney, the Costa Mesa City Council in June delayed distribution of $175,000 in cultural arts grants to investigate whether South Coast Repertory used city money in printing and distributing flyers urging support for the National Endowment for the Arts. The funds, including $30,000 for SCR, were eventually released when the theater company assured the city that no public money had been used for the flyer. But the council directed the city attorney to draft new agreements restricting the use of cultural grants for political activity. The draft language proposed by the city attorney rejected controversial content restrictions proposed by Feeney but included an anti-obscenity clause that sparked concern from the American Civil Liberties Union and arts advocates.