Federal Appeals Court Rejects Decency Rule for NEA

A 1990 law requiring the National Endowment for the Arts to consider “decency and respect” for American values when granting money to artists--passed during a furor over the NEA’s role--was ruled unconstitutional by a federal appeals court Tuesday.

In a 2-1 ruling, the U.S. 9th Circuit Court of Appeals said the law was overly vague and discriminated on the basis of an artist’s viewpoint.

“Under such a grant of authority, funding may be refused because of the artist’s political or social message or because the art or artist is too controversial,” said the opinion by Judge James Browning. “ . . . Government funding of the arts, in the circumstances of this case, must be viewpoint-neutral.”

Dissenting was Judge Andrew Kleinfeld, who said the government was entitled to favor particular viewpoints when awarding grants.

The law has not been in effect since 1992, when a federal judge in Los Angeles ruled it invalid in a suit by four noted performance artists whose NEA grants had been denied.

The Clinton administration inherited the dispute from its predecessor and decided to appeal the 1992 ruling. The Justice Department will decide, after consultation with the NEA, whether to appeal Tuesday’s decision, said NEA general counsel Karen Christensen.

NEA spokeswoman Cherie Simon said the agency had no comment on the ruling.

The ruling means that “artists are free to create works without having to guess about some unknown NEA bureaucrat’s notion of what decency and respect mean,” said David Cole, lawyer for the four artists. Cole is a law professor at Georgetown and an attorney with the Center for Constitutional Rights.

The law was a product of conservative attacks on the NEA for funding such works as the homoerotic images of Robert Mapplethorpe and Andreas Serrano’s depiction of a cross immersed in urine.

Supporters fought off attempts to abolish the NEA, but critics won passage of the 1990 law challenged in the suit. It required the agency, in judging works for their artistic merit, to consider “general standards of decency and respect for the diverse beliefs and values of the American public.”

NEA Chairman John Fronhmayer used the new standards in vetoing grants for Karen Finley, Holly Hughes, John Fleck and Tim Miller.

Finley has appeared partially nude and spread chocolate on her body to symbolize the degradation of women. Hughes concentrates on lesbian issues. Fleck, who says his performances challenge traditional notions of gender, has appeared naked and once urinated on stage. Miller focuses on homosexuality and AIDS.

After losing in federal court in 1992, the NEA settled with the artists by approving their grants--$8,000 each for Finley and Hughes, $5,000 each for Fleck and Miller--plus $6,000 for each in damages and $200,000 in attorney’s fees, Cole said.

In appealing the ruling by U.S. District Judge A. Wallace Tashima, the NEA argued that selectivity in government grants was not the same as censorship or suppression of artistic expression.

But the appeals court said the government, when it subsidizes art or other forms of expression, must use clear standards that do not discriminate on the basis of viewpoint.

Terms like “decency and respect” provide no measurable standard for either artists or their judges, wrote Browning, in the opinion joined by Judge Warren Ferguson. He said the reference to public values was equally undefinable because Americans “have a great many beliefs and values, largely unascertainable.”

In dissent, Kleinfeld said the terms of the 1990 law were no more vague than the “artistic excellence” standard long used by the NEA, and approved by the court. He said government cannot forbid indecent speech, but is not required to subsidize it.