Repeal of NEA Decency Law Sought : Courts: Artists and a civil rights group ask a Los Angeles federal judge to declare unconstitutional the wording used to make endowment grants and for an injunction against its enforcement.

Four performance artists and a coalition of civil rights groups asked a Los Angeles federal judge Monday to declare unconstitutional legal wording requiring the National Endowment for the Arts to take account of “general standards of decency” in making its grants.

The filing also asks for an injunction against enforcement of the decency clause.

The court petition appears to mark the beginning of a new controversy over the NEA, which came under the aegis of the so-called decency wording late last year when Congress passed a bill renewing the arts endowment until 1993.

The Los Angeles court filing asked for an order striking down the decency language in a case in which four performance artists prominent in last year’s NEA controversy have challenged decisions by NEA Chairman John E. Frohnmayer to deny them fellowship grants. The case is pending before U.S. District Court Judge A. Wallace Tashima, who has set no date for the case.

NEA spokeswoman Virginia Falck declined to address the allegations in the new legal papers directly. However, she said, the agency “has analyzed and implemented Congress’ legislative mandate in such a way that it has ensured artistic excellence and merit are the criteria by which applications are judged, taking into consideration the diverse beliefs and values of the American public.”

Because of the decency provision, “there is a very real sense among artists in the United States that they will be subjected to a political litmus test if they apply for funding to the NEA,” charged Nan Hunter, a Brooklyn Law School professor handling the case for the American Civil Liberties Union. “Their only choices are to self-censor or not to apply at all to the NEA.”

The four performance artists, known as the “NEA 4” in arts circles, originally filed suit last year in an effort to regain the fellowships.

Monday’s court filing was technically an amendment to the original complaint in the suit. It was filed by performance artists Tim Miller and John Fleck of Los Angeles and Karen Finley and Holly Hughes of New York. The four artists were joined by the ACLU, the New York-based Center for Constitutional Rights and the National Campaign for Freedom of Expression, a broad-based arts political advocacy group.

The new complaint charges that the decency wording is unconstitutionally vague. It alleges that artists will be inhibited in creating or proposing work for NEA funding because they will be unable to determine what artistic ideas violate NEA perceptions of general decency standards.

The court papers filed Monday also included new allegations that the arts endowment violated the federal Privacy Act by allegedly leaking details of grant applications on the four performance artists to The Times and the Washington Times. The lawsuit charged that information obtained by The Times for a story published in July was “confidential information,” and presumably “unlawfully” provided by the NEA.

The Times story in question reported on the existence of apparent conflicts of interest on NEA grant-making panels that recommended new grants for Finley, Hughes and three others--after the furor over the original rejections had broken out.

All five grants were eventually approved for funding after a re-evaluation. The Times declined to comment.

The arts endowment tried to avoid a fight with artists over the decency wording earlier this year when the NEA’s advisory National Council on the Arts adopted a recommendation that the agency not issue written decency regulations.

At the time, the endowment said it would take care to appoint a broad range of people to its grant-review panels and satisfy requirements that it adhere to general decency standards by carefully monitoring the composition of such panels. But in the new filing Monday, the artists and their attorneys argued that the NEA’s approach to the problem was worse--and more likely to bring a chill to creative work supported by the endowment--than if the agency had issued specific guidelines purporting to define decency.

“It’s like Jell-O,” said Carol Sobel, a Los Angeles-based ACLU lawyer. “You know by your appointment to the panel what you are supposed to do (in terms of keeping NEA-funded projects within the bounds of decency). But if you’re an applicant, you can’t tell what that is. You know your work is going before a panel that has been selected with regard to this as a standard.”

Joy Silverman, Los Angeles-based director of the National Campaign for Freedom of Expression, charged the decency issue is critical because of past controversies that have surrounded Frohnmayer and the NEA. Those conflicts centered on the agency’s attempts to deny grants to controversial artists and to require artists to sign a statement agreeing not to create obscene work. Last year, the NEA required artists to sign an anti-obscenity pledge before any obtaining endowment funding.