Court Allows Limits on Art Funds
By Calvin Woodward
Associated Press Writer
Thursday, June 25, 1998; 4:02 p.m. EDT WASHINGTON (AP) -- The government need not subsidize art it considers indecent, the Supreme Court ruled Thursday, restoring a law that requires public values to be considered when handing out grants.
The 8-1 decision was praised as a blow for decency by some who had criticized the National Endowment for the Arts for giving money to several high-profile makers of risque art. Others said the ruling could chill creativity on the edges of the cultural mainstream.
The law using a decency standard as a criteria for grants ''neither inherently interferes with First Amendment rights nor violates constitutional vagueness principles,'' Justice Sandra Day O'Connor wrote for the court.
''So long as legislation does not infringe on other constitutionally protected rights, Congress has wide latitude to set spending priorities,'' she said. ''Congress may selectively fund a program to encourage certain activities it believes to be in the public interest.''
The endowment welcomed the ruling while saying it will have no practical effect on daily operations. The NEA has been largely prohibited from giving grants to individual artists except in music. It was allotted $81 million this year to use as grants for projects and organizations.
House Speaker Newt Gingrich, R-Ga., was less circumspect. ''Today the Supreme Court validated the right of the American people to not pay for art that offends their sensibilities,'' he said.
David Cole, lawyer for the artists who challenged the NEA, said the justices were wrong in ''closing their eyes to the real-world chilling effect'' of the law. But he took some comfort in O'Connor's suggestion that if the endowment used its discretion to penalize ''disfavored viewpoints,'' that would be a different case.
Lower courts had struck down the law, saying it was too vague and violated artists' free-speech rights. Justice David H. Souter, the only dissenter, agreed the law is ''substantially overbroad and carries with it a significant power to chill artistic production and display.''
The majority said the grants process is not so heavy-handed as to be unconstitutional and does not forbid public financing of controversial art. Instead, O'Connor wrote, it ''admonishes the NEA merely to take 'decency and respect' into consideration.''
Congress set the decency standard in 1990 after the endowment gave money to work such as the homoerotic images of Robert Mapplethorpe and Andres Serrano's photograph of a crucifix immersed in urine. The standard was challenged by a group of avant-garde artists, including Karen Finley, who is known for a performance in which she coated her naked body with chocolate to symbolize the oppression of women.
In a blending of life and theater, Finley was planning to work her response to the ruling into a New York performance of her new piece, ''The Return of the Chocolate-Smeared Woman.''
The law requires the NEA to judge grant applications on artistic merit, ''taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public.''
NEA Chairman William J. Ivey said the ruling is a ''reaffirmation of the agency's discretion in funding the highest quality art in America.'' He added the endowment ''remains committed to full First Amendment protection of freedom of expression.''
People for the American Way, a liberal advocacy group, said allowing government to attach such strings to grants could cause a variety of institutions such as libraries, museums and public broadcasting to shy away from controversy.
The conservative Family Research Council said that if the government must be in the business of subsidizing art, ''it has every right to call the tune.''
In asking the Supreme Court to reinstate the law, the Clinton administration argued that the government has the right to use ''highly selective'' rules to decide which projects and programs deserve taxpayers' support.
Following the Clinton administration's reasoning, O'Connor wrote that the law was not too vague despite ''some imprecise considerations.''
''Indeed, if this statute is unconstitutionally vague, then so too are all government programs awarding scholarships and grants on the basis of subjective criteria such as excellence,'' she wrote.
Her opinion was joined in full by Chief Justice William H. Rehnquist and Justices John Paul Stevens, Anthony M. Kennedy and Stephen G. Breyer, and in part by Justice Ruth Bader Ginsburg.
Justices Antonin Scalia and Clarence Thomas concurred in a separate opinion by Scalia that said O'Connor's opinion ''sustains the constitutionality of (the law) by gutting it.''
The case is National Endowment for the Arts vs. Finley, 97-371.
© Copyright 1998 The Associated Press