Appeal in NEA Case Criticized : Arts: Justice Dept.’s challenge of ’92 ruling, which shot down a clause calling on the agency to consider ‘decency’ in making grants, has many questioning Clinton’s views on free speech.

In June, 1992, when a federal judge ruled that the National Endowment for the Arts’ so-called “decency” clause was unconstitutional, artists and administrators breathed a sigh of relief. They were also heartened by Bill Clinton’s election, following his campaign promises to uphold freedom of speech.

But now, the arts community is reeling from last week’s action by the U.S. Justice Department to appeal that decision.

“Quite frankly, this action came very much as a surprise and we’re still attempting to get information from the Administration on their rationale for taking this action,” says Ed Able, executive director of the Washington-based American Assn. of Museums, whose organization called a meeting on the issue Wednesday. “We are shocked by this action because it did not appear from the information we had in terms of the political campaign and Mr. Clinton’s feelings on these issues that the court decision would be appealed.”

The Justice Department brief, which was filed in San Francisco on March 29, was originally thought to be the work of holdovers from the Bush Administration, but department spokesman Mark Sakaley said the “brief was cleared in this Administration by those authorized to clear it.” He also said that “while Atty. Gen. (Janet) Reno did not play an active role, she was made aware of the appeal before its filing.”

Also last week, the Phoenix-based National Family Legal Foundation, an anti-pornography organization, filed a brief in the San Francisco court, supporting the Justice Department’s appeal.

In 1992, Judge A. Wallace Tashima ruled in the U.S. District Court in Los Angeles that the NEA’s “decency” clause was both “unconstitutionally vague” and “overbroad under the First Amendment.”

The decision was in response to a suit filed by performance artists Karen Finley, John Fleck, Holly Hughes and Tim Miller--also known as “the NEA 4”--and the National Assn. of Artists’ Organizations after former NEA chairman John E. Frohnmayer overturned grant recommendations to the artists.

“To make the assumption that (the appeal) signals a change in President Clinton’s position regarding freedom of speech would be incorrect,” Sakaley said. “We’re simply following our mandate to defend laws enacted by Congress. We disagree with the holding of the district court. The rationale behind the holding was flawed.”

Told of the Justice Department’s comments, Jonathan Cummings at the American Civil Liberties Union’s Arts Censorship Project in Washington, said the position “is certainly in conflict with what Clinton was saying during the campaign.

“Both the Democratic platform and Clinton’s other remarks and ads on art made it very clear that he was opposed to all content restrictions,” Cummings said. “It’s basically an attempt to nip in the bud any possible problems Clinton may have with congressmen or senators, especially (Sen. Jesse) Helms (R-S.C.), who might cause problems in NEA authorization on the Administration’s economic package.”

David Cole, who represents the plaintiffs in his capacity as an attorney with the Center for Constitutional Rights, called the Justice Department’s position “extremely disappointing.” He said it “is another situation in which President Clinton’s Administration is not acting consistently with Bill Clinton, the presidential candidate.”

*

Cole dismissed any suggestion that the 47-page brief was inadvertent, saying he had spoken with an aide to Reno and had a response from Acting Solicitor General William C. Bryson, assuring him that the brief was reviewed at the highest level. Cole said the position in this latest filing is “indistinguishable from the arguments by the Bush Administration.”

Fueled by grants to a photography exhibition by artist Robert Mapplethorpe and an artwork by Andres Serrano called “Piss Christ,” controversy about NEA grant policies reached a head in 1989. Criticism over funding choices spilled over into congressional debate over the NEA budget that year, and in 1990, Congress told the NEA chairman to consider “general standards of decency and respect for the diverse beliefs and values of the American public” when making grants.

Judge Tashima ruled, among other things, that “the right of artists to challenge conventional wisdom and values is a cornerstone of artistic and academic freedom, no less than the rights of scientists funded by the National Institutes of Health.”

Asked about the Wednesday meeting, American Arts Alliance executive director Judy Golub said, “The meeting didn’t change anything. The alliance is still disappointed and dismayed at the papers the Administration filed in Finley vs. NEA.”

Briefs supporting dissenting positions are due April 29, said Elliot Mincberg, legal director at People for the American Way. After that, he says, the Justice Department could submit a reply brief sometime in May.

“One of the things we’re concerned about on a broader front is giving aid and comfort to those who would restrict free speech,” Mincberg said. “It is a defense which can be used by others who would want to place even more restrictions on the NEA than the decency clause; they can see the Clinton Justice Department allowed to do this. . . . The Administration may not have fully thought out the implications of its brief in other contexts, focusing more narrowly on the specifics of the case rather than its implications down the road.”