Did NEA Win Battle, Lose War?

For the moment, the National Endowment for the Arts can continue conducting business without worrying about whether its grantees meet “general standards of decency and respect for the diverse beliefs and values of the American public.”

On Nov. 5, an appellate court in San Francisco ruled that the language is unconstitutional, upholding a lower court ruling stemming from a suit filed against the NEA by four performance artists. The suit challenged the “decency” statute that was mandated by Congress in 1990 after a series of controversial NEA grants to cutting-edge artists.

But the arts community is reacting cautiously because the Clinton administration may continue the appeals process. And some artists are calling it a hollow victory since the NEA’s power to approve controversial grants was effectively eliminated by Congress last year.

John Fleck, one of the so-called NEA 4, noted wryly that the ruling won’t do him or his fellow plaintiffs much good because massive changes in the NEA’s grant-making policies following last year’s 40% budget cut no longer allow applications for individual artists’ grants.

“The likes of us . . . can’t get grants anymore, so the NEA doesn’t have anything to worry about,” Fleck said.

Tim Miller, another of the infamous quartet, added: “The NEA is basically fairly useless at this point for anything but the large organizations. It’s not likely that any kind of grant that’s pushing some kind of boundary will come up before the [funding] panel.”

But other artists and their supporters also believe the court decision plays a significant and positive role in the NEA’s future.

“I think this is a good decision for artists in general, and freedom of expression in general, whatever happens at the NEA,” said Robert Lynch, president of Americans for the Arts, a Washington-based advocacy group. “The NEA changes--as all government agencies do--all the time, depending on money and so forth. The fact that there aren’t individual artists’ grants today does not mean they won’t be there tomorrow.”

The fate of the NEA’s mandate rests with the Clinton administration, which has 90 days to decide whether to continue the appeal process.

Doing so would further alienate an arts community that is already upset with the administration for presiding over what some consider the evisceration of the arts endowment.

By dropping the appeal, however, the administration risks giving Congress ammunition for derailing Clinton’s legislative agenda.

“We believe the Congress will once again need to take a look at this matter,” said Steve Phillips, spokesman for Sen. Jesse Helms (R-N.C.), who won reelection on Nov. 5 and who in recent years has led the charge in Congress for reining in the NEA’s activities.

It’s the repeat of a scenario from the early days of the president’s first term. Clinton had won the favor of the arts community in the 1992 campaign by stating his opposition to content restrictions in the NEA’s funding guidelines. But, in March 1993--just two months after his inauguration--Clinton’s administration decided to appeal the initial court decision that found the NEA “decency” statute to be unconstitutional.

When the appeal was filed by the Justice Department, some observers charged that the Clinton Administration was simply protecting itself against criticism from conservatives in Congress.

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Now, the administration, facing the continuing challenge of a Republican Congress, finds itself in a familiar situation. The politically expedient act would be to stand behind the Justice Department’s mandate to defend the government on questions of constitutionality and to appeal any court decisions that overturn laws enacted by Congress.

A Justice Department official who asked not to be named said last week the government will likely appeal the ruling to the Supreme Court.

“It looks like we would have to take this up,” he said.

The legal attack on the “decency” regulation may unfortunately undercut support for the arts on Capitol Hill, he added. “If the members of Congress are told they can’t make any judgments, that it’s censorship not to give money to people who paint themselves in peanut butter or chocolate, some of them will say, ‘Let’s not give [the NEA] any money,’ ” he said.

The “decency” statute was proposed in 1990 by a House subcommittee as an alternative to more stringent language proposed by Sen. Helms. Congressman Pat Williams (D-Mont.), who was chairman of the subcommittee, said Tuesday that while he recommended legislation regarding obscenity, the language just rejected was too vague to be constitutional.

Williams offered another scenario concerning the administration’s possible decision to pursue further appeal: “I rather expected the [administration] would make the appeal if for no other reason than out of security that it would be denied. I think they were trying to strengthen the case against this clause. But it seems to me they have gone far enough--it’s clear now, and another appeal would just prolong a losing struggle.”

If the NEA does not appeal, however, Williams predicts congressional conservatives “will take out after the endowment again.”

Indeed, Helms’ office has taken note. “Obviously [the court ruling] vindicates Sen. Helms’ approach, which was a very precise and specific delineation of what was acceptable and what was not,” Phillips said. He added that, although Helms’ office has had no recent discussions about the Justice Department appeal, “the bottom line is that . . . there are several approaches to this matter, and the weak approach did not work.”

Elliot Mincberg, an attorney for People for the American Way, acknowledged that the practical significance of the ruling is “minimal,” but argued that it sends a discouraging message to lawmakers who would place freedom-of-expression restrictions on government funding.

“It’s a very good decision, because it sends a clear message that discrimination in terms of viewpoint shouldn’t take place when it comes to grants for art and other kinds of expression,” said Mincberg, whose organization filed a friend-of-the-court brief on behalf of 60 arts groups against the decency restrictions.

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While some observers acknowledge that the decency discussion remains a strong topic of conversation on the Hill and an appeal would not be surprising, John Hammer, director of the National Humanities Alliance, added that general congressional weariness about an old issue may work in favor of the artists.

“They may decide that this is one not to go to the mat on,” he said.

Choreographer Bella Lewitzky, who in 1990 turned down a $72,000 NEA grant and filed suit against the agency for requiring recipients to pledge not to create obscene work--a requirement that was subsequently declared unconstitutional by a U.S. district judge--applauded the ruling. “I think that [NEA Chair Jane] Alexander has just broken her back and nearly her heart to try to keep something there for the NEA in the face of such unpopular opinion--and the reelections didn’t do much to alter that, in my viewpoint,” Lewitzky said. “In today’s world, every small victory is an important step forward, so I feel happy that censorship once again is being challenged.”

While believing the decency language will remain a thing of the past, Lynch cautioned against assuming that court rulings will necessarily silence Congress.

“Congress doesn’t like it when the courts interpret what they do as unconstitutional,” he said. “This doesn’t mean the NEA will not have to weather assaults anymore. It doesn’t change what Congress can question, and they traditionally question whatever they want to question.”

Times staff writers David Savage and Melissa Healy in Washington contributed to this story.