Court Lights Up an Arts Issue : NEA ‘indecency’ argument is rejected

In 1990 John E. Frohnmayer, then-chairman of the National Endowment for the Arts, rejecting an advisory panel recommendation, denied NEA grants to four artists on the ground that their work offended general standards of decency. The four then sued the NEA, contending their 1st Amendment rights had been violated. On Tuesday, U.S. District Judge A. Wallace Tashima ruled in their favor.

The four did not claim their work was necessarily inoffensive to “general standards of decency and respect for the diverse beliefs and values of the American public,” to use the language of the now-overturned “decency clause.” They claimed rather that so long as their work had artistic merit, the government could not withhold its support on any ground as vague as indecency.

Against this claim, the government argued that the plaintiffs’ 1st Amendment rights simply were not in question. The denial of grant money was “merely a refusal to subsidize plaintiffs’ expressive activities--not a barrier to their exercise.”

Tashima rejected the government’s argument in this difficult case, which raises subtle points about free speech and government subsidy of controversial art. Quoting from an earlier decision (Perry vs. Sindermann, 1972), he wrote: “(E)ven though a person has no ‘right’ to a valuable government benefit, and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely.

“It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests--especially, his interest in freedom of speech.”

Two views, each coherent on its own terms, are in contention here. One stresses the right of the majority to rule, through its elected representatives, that its money shall not be spent on works it disapproves of for any reason. The other stresses the right of each citizen to enjoy the goods of citizenship--including access to NEA funding--without any hindrance deriving purely from the exercise of a constitutional right.

The U.S. Supreme Court seemed clearly to adopt the former view in Rust vs. Sullivan (1991), denying workers in government-funded clinics the otherwise clearly protected right to advise patients about abortion. Tashima, well aware of that case and, in fact, explicitly addressing it, nonetheless adopts the latter view.

Art, now as before, may be denied government support on artistic grounds. “Indecency,” starting now, is too vague a ground for such denial. If and when Tashima’s decision is appealed to the Supreme Court, we may find ourselves at a turning point in the history of the 1st Amendment. For now, a crucial question has been answered with admirable clarity.