NEA Pledge on Obscenity Struck Down : Constitution: Arts groups and law experts hail the ruling in suits by Bella Lewitzky Dance Company and the Newport Harbor Art Museum.

A federal judge struck down on constitutional grounds Wednesday a National Endowment for the Arts requirement that grant recipients sign--before receiving any money--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 freedom of expression implications.

The ruling, by U.S. District Judge John G. Davies, applied to separate but nearly identical lawsuits filed last summer against the NEA by the Newport Harbor Art Museum in Newport Beach and the famed Bella Lewitzky Dance Company in Los Angeles.

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.”

James V. Selna, a Newport Harbor trustee and an attorney with the firm that represents the museum, hailed the decision as a “victory not only for the museum in general but also for the NEA. It frees the NEA from a burden that was contrary to its mission to support the arts.

“This decision has significant precedential value,” Selna said. “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.”

Lewitzky told a hastily called news conference Wednesday: “It is a day for me of gratitude, of rejoicing, of celebrating, that freedom of expression has won in a court in our land.” The legendary choreographer said it was “very heartening” that Davies agreed with virtually every argument advanced by the two arts organizations and ruled against the NEA on every detail of the case.

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 codify requirements that artists agree in advance to limit the content of their work as a condition of receiving government support.

In September, Newport Harbor became the third arts organization--and first museum--in the United States to file a lawsuit seeking a court order barring the obscenity certification. The Lewitzky Foundation filed a similar brief in July.

On Nov. 19, the museum submitted a request for funds for three of the exhibitions covered by the grants, but with a paragraph stating its noncompliance with the obscenity certification. NEA funding represents slightly more than 5% of the museum’s $1.8-million operating budget this year.

“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.”

The lawsuits came at the close of the initial months of a political crisis over federal government arts support that climaxed last fall when the House of Representatives and 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 insisted, 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.” He said it would take momentum away from conservative critics of the federal arts agency who attached language to a new bill regulating the NEA that requires the endowment to adhere to “general standards of decency” in making grant decisions.

“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.”

After a nationwide protest took root in the arts community--in which more than three dozen major arts institutions eventually rejected NEA funding completely rather than sign the obscenity certification--the Lewitzky troupe and Newport Harbor sued the NEA in Los Angeles federal court. Weeks before, the NEA had been named in similar litigation--still pending in federal court in New York--by the New School for Social Research. The New School is the institutional parent of the Otis/Parsons Art Institute here.

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 to artists and arts organizations.

The NEA’s chief critics were silent in the aftermath of the ruling. A spokesman for Sen. Jesse Helms (R-N.C.), who was 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 to the ruling.

Technically, Davies’ ruling granted a motion by Lewitzky and the art museum for what is called a summary judgment--a finding that the plaintiffs’ case in the lawsuit was compelling enough to assure victory in the litigation.

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. The NEA has kept some 1990 grant money sequestered to assure its availability to grantees involved in legal disputes with the endowment in the event that courts strike down the obscenity oath requirement.

The litigation arose months after conservatives in Congress and right-wing religious groups moved against the NEA in 1989 in retaliation for endowment support of an art exhibition that included a photograph of a crucifix immersed in urine.

The controversy grew months later, after a separate dispute over NEA support of an exhibition of photographs by the late Robert Mapplethorpe, some of which were sexually explicit and had strong homosexual themes.

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.”

Floyd Abrams, a noted New York constitutional lawyer who represents the New School in its suit, called the decision “a splendid ruling, deeply sensitive to First Amendment considerations.”

But Abrams was critical of Frohnmayer and the endowment for creating what he called an unnecessary constitutional confrontation in the first place. “I think the decision today sends a signal to both the Congress and to Mr. Frohnmayer personally that certain types of restrictions simply cannot be squared with the First Amendment,” he said.

Times staff writer Cathy Curtis in Orange County contributed to this story.