Court Hears Arguments On NEA 'Decency' Rules
By Joan Biskupic
The Supreme Court yesterday heard arguments on whether the government may invoke "decency" standards when choosing which artists receive federal grants.
At its broadest, the controversy raises the provocative issue of whether, when the government pays for a private piece of art or cultural program, it can favor certain points of view. A lower federal appeals court said such an approach in this case involving open-ended standards of "decency" and respect for American "values" violates the First Amendment guarantee of free speech.
But during arguments, many justices suggested by their questions that they may never actually reach the constitutionality of the 1990 law forcing the National Endowment for the Arts to use "artistic excellence and merit" as the criteria for awarding public money, taking into consideration "general standards of decency and respect for the diverse beliefs and values of the American public."
Some justices pointed up procedural difficulties in the case brought by four performance artists that might prevent a majority from ruling on the merits of the dispute. Chief Justice William H. Rehnquist particularly questioned whether the artists could broadly say that under no circumstances is the decency standard constitutional, and he and others questioned whether their rights had been violated, because some of the challengers had been awarded grants in recent years.
Other justices asked whether the NEA's interpretation of the law is as broad as the 9th Circuit U.S. Court of Appeals found when it struck down the statute.
Solicitor General Seth P. Waxman, representing the NEA, said the decency standard is only a guideline for the agency as it pays for "artistic excellence." He said the language was a compromise in Congress not intended to be overly restrictive. The language stemmed from controversy over some earlier NEA-funded exhibits, particularly Robert Mapplethorpe's homoerotic photographs and a photograph by Andres Serrano's of a crucifix immersed in the artist's urine.
Waxman contended the NEA fulfilled the statute by broadening the membership on its advisory panels to include people with a wide range of cultural perspectives and diverse values. He called the decency criteria "innocuous."
But Justice Anthony M. Kennedy, while concerned about whether the artists even had a case, nonetheless chided Waxman for trying to argue that the statute was essentially meaningless. He suggested it was a "wink, wink, nudge, nudge approach" to curtailing grant money for controversial artworks.
Karen Finley, a performance artist who covers her nude body with chocolate, and the other artists who have challenged the decency standard, say it discriminates against nontraditional artworks and "chills" free expression.
David Cole, their lawyer, told the justices the decency criteria unconstitutionally suppresses particular points of view. He said the standard favors projects "respectful of American beliefs" and disfavors those challenging public sensibilities.
Cole relied heavily on a 1995 court ruling that struck down the University of Virginia's policy of giving financial support to student publications but denying a subsidy to a student-run religious magazine. The court said the policy discriminated on the basis of the magazine's content and violated the First Amendment.
But some justices said that ruling might not apply because while all student publications were supposed to get funds, in the NEA case, only a fraction of the applicants can win grants. Justice Sandra Day O'Connor observed the government has limited funds and may be able to dish them out on numerous criteria, including decency.
The NEA, which since 1965 has given out public money to creative talent, has been under attack not only from the arts world but from conservatives in Congress who question why government should even give taxpayer money to private arts. A ruling in National Endowment for the Arts v. Finley is likely by the time the court recesses in late June.
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