Judge Voids the NEA’s Decency Standard : Arts: The endowment’s grants clause is found to violate First Amendment. The ruling will allow the suit of four artists against the agency to go to trial.

Saying that “artistic expression is at the core of a democratic society,” a federal judge Tuesday found a National Endowment for the Arts decency standard used in the agency’s grant-making process to be unconstitutional.

Los Angeles District Judge A. Wallace Tashima called the NEA wording “vague” and said in his 44-page decision that the decency clause “sweeps within its ambit speech and artistic expression which is protected by the First Amendment. The court, therefore, holds that the decency clause, on its face, violates the First Amendment for overbreadth and cannot be given effect.”

The decision came as part of the ongoing case of four avant-garde performance artists who are suing the endowment for overturning grant recommendations made by an NEA peer panel. The so-called “NEA 4” includes Los Angeles-based artists Tim Miller and John Fleck, and Karen Finley and Holly Hughes of New York. All of the artists except Finley are gay and their work includes sexual and homosexual themes.

Following battles that started in 1989 with NEA funds being used for controversial exhibitions by Robert Mapplethorpe and Andres Serrano, Congress first banned the endowment from funding projects that were obscene, sadomasochistic or homoerotic. The ban was later dropped and the NEA adopted language saying applicants would be judged on “general standards of decency and respect for the diverse beliefs and values of the American public.”

Tashima wrote: “The right of artists to challenge conventional wisdom and values is a cornerstone of artistic and academic freedom.

“The fact that the exercise of professional judgment is inescapable in arts funding does not mean that the government has free rein to impose whatever content restrictions it chooses.”

Tuesday’s court decision will allow the “NEA 4” suit to go to trial, overturning the government’s request for dismissal.

Endowment spokeswoman Jill Collins said Tuesday that the NEA had been informed of the decision only by press calls asking for a reaction and offered no comment. “We haven’t seen (the decision) yet, so we’ll have something to say after we see it.”

Miller, artistic director of Santa Monica’s Highways Performance Space, hailed the decision as a “total victory” and said he hoped that the decision might alter the current course of the NEA, which he and other artists believe is succumbing to pressure from political and religious conservatives.

That debate has came to the forefront in recent weeks due to NEA acting chairwoman Anne-Imelda Radice’s mid-May veto of two grant recommendations to the List Visual Arts Center and the Massachusetts Institute of Technology. Both exhibits contained works depicting body parts and genitalia.

Radice took over the job May 1 following the February resignation of John E. Frohnmayer, who was forced out of the position by the Bush Administration after repeated attacks on endowment grants by presidential candidate Patrick J. Buchanan.

Ralph Reed, spokesman for Pat Robertson’s Christian Coalition, said the group may seek legal action to challenge Tashima’s decision. “I would suggest to you that Judge Tashima is attempting to legislate from the bench his own beliefs without any grounding whatsoever in constitutional law,” he said. “I confidently predict his decision will be overturned at a higher level. This is simply one skirmish in an ongoing cultural civil war over values in our society.”

“It is certainly heartening at this point that there is a federal judge in this country who is willing to support and interpret the Bill of Rights as actually protecting the citizens of the United States,” Miller said Tuesday. “A federal judge is seeing that something as vague and unjudicial as a ‘general standard of decency’ is clearly unconstitutional, and he called it like he saw it.”

Marjorie Heins, director of the arts censorship project for the ACLU, called the decision “of paramount significance,” particularly in light of what she sees as increasing NEA politicization.

“What we have seen in the two years since the ‘NEA 4’ were denied grants is really an increase in the blatant political partisanship which has unfortunately infected the NEA,” she said. “It has now gone to such extremes that one image of one genital organ seems to be enough to disqualify an artwork for funding. It’s a disgrace.

“The important thing is . . . that the decency requirement which applies to every grant decision that Radice is making has been struck down as overly vague. That means it is no longer enforceable.”