Justice Department Says It May Appeal NEA Obscenity Ruling

The Justice Department on Friday filed notice that it may appeal a federal court ruling striking down a National Endowment for the Arts requirement that 1990 grant recipients sign a pledge not to create or show obscene work.

At the same time, the NEA has apparently recommended that the Justice Department not appeal the ruling in cases brought by the Bella Lewitzky Dance Company of Los Angeles and the Newport Harbor Art Museum.

U.S. District Judge John G. Davies ruled on Jan. 9 that the arts agency’s requirement was unconstitutional and that neither the Los Angeles dance company nor the Orange County museum had to agree to an anti-obscenity pledge to receive grants totaling $72,000 and $100,000, respectively.

The NEA general counsel’s office acknowledged that the arts agency had made a recommendation to the Justice Department regarding the appeal, but would not say what it was. It was learned, however, that the NEA had formally urged that no appeal be filed in the California cases.

The government accepted settlement of a separate case last month in which the endowment agreed not to require the New School for Social Research in New York City to sign an anti-obscenity pledge, an action that could render moot appeals in the Lewitzky and Newport Harbor cases.

“The Justice Department is signaling that they want to preserve their option to appeal,” said Elliot Mincberg, a Washington lawyer for the People for the American Way organization.