A Los Angeles federal judge Wednesday struck down on constitutional grounds a National Endowment for the Arts requirement that before receiving any money, grant recipients sign a pledge not to create or show obscene works.
Although the ruling affects an NEA restriction that technically lapsed at the end of the 1990 fiscal year last Oct. 1, arts advocates and constitutional law experts characterized the decision as a major victory for the arts with important implications for freedom of expression.
The ruling, by U.S. District Judge John G. Davies, applied to separate but nearly identical lawsuits filed last summer against the endowment by the Bella Lewitzky Dance Company in Los Angeles and the Newport Harbor Art Museum in Newport Beach.
In a 28-page decision, Davies turned aside every one of the NEA’s arguments defending its requirement that artists sign a pledge that had been criticized as an anti-obscenity loyalty oath.
Davies held that the certification set the NEA up as a federal government arbiter of what constitutes obscenity--a role clearly at odds, he concluded, with U.S. Supreme Court rulings which have held that only the standards of individual communities can be employed to determine what is obscene.
“This is the type of obstacle in the path of the exercise of fundamental speech rights that the Constitution will not tolerate,” Davies wrote of the NEA oath requirement. “The government’s defense that its certification requirement is merely part of a subsidy decision is unavailing.”
Davies noted that the award of an NEA grant has become an important credential for artists and arts institutions as they seek additional private financial support. In his decision, the judge held that an artist refusing to sign the oath might be treated as a pariah by private funders “and, therefore, will be worse off than if he had not applied for an NEA grant at all.”
“It is a day for me of gratitude, of rejoicing, of celebrating that freedom of expression has won in a court in our land,” Lewitzky told a news conference Wednesday. The legendary choreographer said it was “very heartening” that Davies agreed with virtually every argument advanced by the two arts organizations.
“This decision has significant precedential value,” said James V. Selna, an Orange County lawyer who represented the art museum. “The court’s decision protects the arts community against any new change in the winds that might see an effort to reimpose a certification requirement.”
The government arts agency declined to comment on the decision or to say whether it would appeal. Across the country, however, officials of arts organizations and constitutional law experts said the ruling could help prevent any future move in Congress or state legislatures to require that artists agree to limit the content of their work as a condition of receiving government support.
“It’s a wonderful decision,” said Steven D. Lavine, president of CalArts in Valencia, which, like a number of major arts institutions across the country, had delayed signing its papers for its 1990 NEA grants pending the court ruling.
“If the NEA will take the ruling as a sort of mandate,” Lavine said, “they could do a tremendous amount to clear the air and to begin to re-establish trust between themselves and the grantees who have always looked to them.”
Lewitzky and the museum sued the NEA after the two arts groups refused to sign the NEA oath form on which grant recipients were required to stipulate that they would comply with anti-obscenity language enacted by Congress in late 1989.
The action came during a political crisis over government funding for the arts. Last fall, the House of Representatives and the Senate voted down conservative attempts to impose stringent requirements on the content of federally supported artworks.
The law governing 1990 grants did not require artists to sign certifications that they would not produce obscene work. NEA Chairman John E. Frohnmayer imposed the requirement unilaterally in order, he said, to be certain that artists receiving endowment funds were aware of the legal strictures.
Elliot Mincberg, a Washington lawyer for the liberal People for the American Way organization, which represented Lewitzky, called the Davies decision “a very important ruling.”
“Frohnmayer ought not to be a decency czar,” Mincberg said. “The decision establishes that, were the NEA to try to implement those decency provisions in a way that similarly imposed restrictions on a grantee, that (too) would certainly be unconstitutional.”
The NEA, which has a 1991 budget of $175 million, makes grants to individual artists, museums, orchestras, theater companies and dance producers. Founded in 1965, the agency makes more than 4,300 grants a year.
The NEA’s chief critics were silent after the ruling. A spokesman for Sen. Jesse Helms (R-N.C.), the author of proposed Senate amendments to the 1990 NEA bill from which the obscenity oath language was drawn, did not respond to calls seeking Helms’ reaction.
The ruling had the effect of ordering the NEA to release $72,000 in grant money to Lewitzky and $100,000 in four separate grants to the art museum.
Wednesday’s ruling applies only to the two arts groups affected by Davies’ decision, said Stephen F. Rohde, a local constitutional law expert who organized a coalition that filed a friend of the court brief in the Lewitzky case. But, he added, “The bottom line is that the NEA is now required to release the funds without requiring the obscenity certification.”
Times staff writer Cathy Curtis contributed to this story.