Ruling Restores Decency Clause for Arts Grants

Ending one battle in the nation’s culture wars, the Supreme Court ruled Thusday that “decency” can be considered in awarding federal arts grants, rejecting a claim by artists in Los Angeles and New York that such a policy is censorship.

While the government may not restrict what artists say or do, the court said, Congress can set limits when public money is being distributed to them.

The 8-1 decision restores a 1990 law spawned by congressional conservatives in an uproar over funding by the National Endowment for the Arts of exhibitions of work by several controversial artists--including the homoerotic photography of the late Robert Mapplethorpe and Andres Serrano’s depiction of a crucifix submerged in urine.

Since its inception in 1965, the NEA had awarded grants based on “artistic excellence and artistic merit.” In 1990, Congress added the new criterion, requiring grant-givers to “take into consideration general standards of decency and respect for the diverse beliefs and values of the American people.”

The restriction was challenged as a violation of free speech by four performance artists who had their grants denied by the arts endowment. The artists were led by New Yorker Karen Finley--best known for appearing on stage covered in nothing but melted chocolate. The performers, many of whom used gay themes in their work, also asserted that the new standard was so vague as to be meaningless.

U.S. District Judge A. Wallace Tashima in Los Angeles agreed and struck down the rule in 1992, a decision affirmed four years later by the U.S. 9th Circuit Court of Appeals in San Francisco.

But without significant dispute, the Supreme Court reversed those rulings and threw out the constitutional challenge brought in the case (NEA vs. Finley, 97-371).

“Congress has wide latitude to set spending priorities,” said Justice Sandra Day O’Connor, citing as precedent school libraries rejecting books deemed indecent and unsuitable for children. Only Justice David H. Souter dissented.

Conservative groups hailed the decision.

“This case is not about whether free speech rights have been violated. It’s about whether federal tax dollars must be used to underwrite patently lewd art,” said Mathew D. Staver, president of the Liberty Council in Florida.

But the ruling was met with mixed reactions in the arts and civil rights communities. Some denounced it as censorship while others said that the decision might have had the practical effect of strengthening the NEA in its perennial battle with conservative lawmakers.

“While technically we lost, the court ruling puts us in a stronger position to move Congress off of complaining about pornographic art and on to the question of growing the endowment to acknowledge the strength of arts and culture in this country,” said Jan Denton, director of the American Arts Alliance in Washington.

Indeed, the Justice Department had argued in favor of the decency rule on the NEA’s behalf.

And on Thursday, newly confirmed NEA Chairman William J. Ivey celebrated the ruling as “a reaffirmation of the agency’s discretion in funding the highest quality art in America.”

Ivey predicted that the decency standard would not change the endowment’s day-to-day operations, given that the agency has been thoroughly restructured in the eight years since the suit was filed. For instance, it no longer funds most individual artists and strictly reviews how the money will be used by groups awarded grants.

The endowment relies on citizen review boards to evaluate grant applications and bring to the table “their diverse community standards.”

Such changes were enacted largely to appease congressional critics. And they appear to be working.

Efforts by Republican House leaders in recent years to abolish the NEA have been thwarted. And just as the high court’s decision was announced Thursday, the House Appropriations Committee voted to restore the agency’s $98-million budget for next year, reversing a subcommittee’s decision just days ago to withdraw all funding from the agency. The Senate, meanwhile, is poised to fund the endowment at $100 million.

But critics said that the newly restructured NEA is a self-censoring sham that has yielded to the whims of conservatives to stay alive. They denounced the court ruling as a setback to free speech in America.

“Younger artists know they live in a country where freedom of expression is unvalued,” said Tim Miller, a Los Angeles artist and one of the “NEA 4” who filed the suit. “I teach at Cal State L.A., and [students] realize that to get federal arts funding you have to sing the [House Speaker] Newt Gingrich hit parade, so they are planning a career outside of that.”

Also bringing the lawsuit were performance artists John Fleck of Los Angeles and Holly Hughes of New York.

Some critics warned that the court’s ruling sets a dangerous legal precedent. While the justices held that the decency rule did not actually result in NEA censorship, they left for another day the question of whether actual content restriction is constitutional.

“The doors are open for other kinds of language proposals and restrictions from Congress regarding the arts and other areas of expression,” said Bob Lynch, president of Americans for the Arts in Washington.

Times staff writer Diane Haithman contributed to this story.