Artists Claim $252,000 Settlement Is a Victory : Arts: NEA says the award is not a concession of wrongdoing or endorsement of the controversial works.

Four provocative performance artists claimed victory Saturday in their battle with the National Endowment for the Arts after the announcement of a settlement that awards $50,000 to the artists and another $202,000 to cover their legal fees.

But a spokeswoman for the NEA said the settlement, which was announced Friday, represented a legal settlement only, not a concession of wrongdoing or an endorsement of the artists’ work.

NEA spokeswoman Ginny Terzano also denied that any portion of the money represents a repayment of the grant money denied the artists in 1990.

The legal battle began when the four artists--Tim Miller and John Fleck of Los Angeles and Holly Hughes and Karen Finley of New York--were recommended for grants by a peer panel. That recommendation was overturned by then-NEA chief John E. Frohnmayer. The artists charged that Frohnmayer’s decision was politically motivated. All the artists work with sexual themes and all but Finley are openly gay.

During Frohnmayer’s rocky NEA tenure, political conservatives as well as religious groups attacked the NEA for endorsing “obscene” art. Sen. Jesse Helms (R-N.C.) was the driving force behind anti-obscenity restrictions imposed on the NEA by Congress. Congress repealed the obscenity ban in October, 1990, and substituted a “decency” requirement. In June, 1992, a federal judge ruled the decency clause unconstitutional, but that ruling was appealed in late March by the Justice Department.

Artists will receive $6,000 apiece in compensatory damages to resolve claims that the government violated the artists’ privacy by leaking details of their grant proposals to the press. Each artist will also receive a payment equaling his or her 1990 grant recommendation: $5,000 each to Fleck and Miller and $8,000 apiece to Hughes and Finley.

Reached at home Saturday and told of the settlement, Frohnmayer also sought to undercut the artists’ claim of a victory.

“I’m sorry the case did not go to trial,” Frohnmayer said. “It’s too bad a judge, or better yet, a jury, did not have a chance to hear and decide on the basis of facts. My position is that the grants were denied in due process.”

Frohnmayer denied that pressure from the George Bush Administration had caused him to overturn the 1990 grant recommendations. “I’m not saying that there wasn’t a lot of political pressure; what I’m saying is, I tried very hard to avoid it,” he said.

Hughes said the settlement marked the end of her personal trauma--although she, Fleck and Miller expressed concern about the decency appeal. “The (money) does not bring back what I lost,” she said. “Two years of my life were just ruined. I couldn’t work with Jesse Helms looking over my shoulder. I got death threats, my lawyer got death threats. I lived in a state of terror.”

Although the amounts paid equal 1990 recommendations, Terzano refused to call them “grants,” saying they are not earmarked for NEA-sponsored arts projects. “These are not ‘grants,’ Terzano said. “They are settlements. . . it should not be considered a statement by the agency one way or the other regarding the artistic merit of their work, nor does it represent an artistic position.”

The artists, as well as members of the organizations that sponsored their case, scoffed at Terzano’s statement.

“We were not willing to settle unless they gave us the grants,” said David Cole, an attorney for the Center for Constitutional Rights, which co-sponsored the case with the American Civil Liberties Union’s Arts and Censorship Project and the National Campaign for Freedom of Expression.

Cole cited a portion of the settlement agreement which reads: “The parties agree that $26,000 of this settlement paid to (the four artists) constitutes Solo Performance Theater Artists and Mimes Fellowships.”

“The language couldn’t be clearer. You can’t get any clearer than that,” Cole said.

Terzano said the designation “fellowships” was a technicality. “In order for a settlement to be reached, it was necessary for part of the settlement agreement to refer to a portion of the lump sum payment as ‘fellowships.’ ”