Frohnmayer Keeps Anti-Obscenity Pledge : Arts: NEA chief rejects advisory council's call to drop the controversial provision. He says he will wait for the courts to rule.

TIMES STAFF WRITER

The chairman of the National Endowment for the Arts will continue to require recipients of government arts grants to sign a controversial anti-obscenity certification, for the moment spurning a lopsided recommendation by his own advisory council that the pledge be dropped.

The decision to continue to require grantees to execute what critics have charged amounts to an anti-obscenity loyalty oath was conveyed to members of the advisory National Council on the Arts last Friday by NEA Chairman John E. Frohnmayer. A copy of Frohnmayer's two-paragraph letter was obtained by The Times Tuesday afternoon.

In his letter, Frohnmayer said he had concluded that deleting the oath requirement--as the council recommended, 17 to 2, earlier this month--would be unwise in light of pending lawsuits against the NEA by two grantees who have rejected endowment money rather than execute the anti-obscenity certification.

Frohnmayer said he intended to put off any decision on adoption of the recommendation until a court ruling in one of the two grantee lawsuits is issued by a federal judge in New York. The case in which a ruling is imminent involves a constitutional challenge to the oath requirement by the New York-based New School for Social Research. A hearing was held in that case last week.

Also pending is a similar suit by Los Angeles choreographer Bella Lewitzky, which is further from any court ruling. A number of arts groups and individual artists are expected to join in the Lewitzky litigation.

Frohnmayer said he intended to put off any decision on adoption of the recommendation "Since (the requirement that grantees sign the obscenity pledge) is in litigation, and since significant constitutional interpretation may be involved, I will await the court's decision before acting on your recommendation," Frohnmayer said. He noted that a ruling may emerge from the court within a month.

Floyd Abrams, a noted New York constitutional lawyer who represents the New School, branded Frohnmayer's decision as "nonsense," saying there is no legal obstacle to removing the oath immediately. "I don't why he's doing this," Abrams said. "Even if the court were to hold the oath constitutional, it would still be awful policy."

The decision to leave the obscenity oath requirement in force during a time of the year in which the NEA typically makes hundreds of new arts grants came as a disappointment to one of the most influential members of the national council and appeared to have deepened dismay within the nation's arts community.

Many artists were already upset over a series of grant rejections engineered by Frohnmayer in an apparent attempt to placate the endowment's political foes in Congress.

Wendy Luers, a national council member who has been one of Frohnmayer's strongest supporters, said she had not seen the letter to council members. Speaking by telephone from a New England vacation home, Luers said the decision by Frohnmayer raised concerns that large numbers of grantees would continue to be required to execute the oath while the court ruling is pending.

During the spirited debate over the deletion of the oath--which Frohnmayer opposed--the NEA chairman made no suggestion that the pending litigation would affect any policy change at the arts endowment.

"A question, I think, is the deadlines for 1990 grants for people who have to sign the oath," Luers said. "What is this decision going to do to the recipients at this point who are protesting the language (or rejecting NEA money, outright) between now and when a court decision is taken? I just don't know."

Joy Silverman, director of the National Campaign for Freedom of Expression, a grass roots arts political organization, said that a series of recent NEA actions denying grants to controversial artists have so badly undercut NEA support in the creative community that Frohnmayer's latest move will not significantly alter the endowment's position among artists.

"I don't think it's going to have all that much effect," Silverman said of Frohnmayer's decision to continue the oath. "The loyalty oath is a very powerful impetus for artists to make some kind of strong political statement. Artists are trying to make decisions (about accepting NEA support) that are very difficult."

At least a dozen make arts organizations have rejected NEA funding to protest the obscenity oath requirement, which the NEA put in place in response to congressional protests over a series of controversial grants last year. Most recently, the American Poetry Review and the Boston Review have turned down a total of about $30,000 in NEA money.

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