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  •   'Decency' Can Be Weighed In Arts Agency's Funding

    Performance artist Karen Finley answering questions after the court heard her case in March. (AP)
    By Joan Biskupic
    Washington Post Staff Writer
    Friday, June 26, 1998; Page A01

    A lengthy battle over public funding for the arts ended yesterday when the Supreme Court ruled that the federal government can consider general standards of decency and the "values of the American public" in deciding which projects should receive cash grants.

    The ruling came in a dispute that began nearly a decade ago, when funding by the National Endowment for the Arts for works with controversial sexual and religious themes led to the 1990 enactment of a law imposing a decency standard. The law became a rallying point for artists in many disciplines who claimed their ideas were being chilled and their rights to free expression violated.

    But in its 8 to 1 ruling, the court upheld that statute yesterday, saying it saw no evidence that the decency standard suppressed expression, even of work that might be thought unpopular or offensive.

    The arts funding case was part of a larger, ongoing debate over indecency, not just in fine arts but in television, films, books and, more recently, on the Internet. Playing to public outrage over sexually explicit material, Congress in recent years has attempted to legislate standards but has found itself embroiled in constitutional struggles over the proper balance between free expression and the interests of the majority.

    The NEA has been particularly buffeted by partisan feuding over its grants, its funding and whether government should even be giving taxpayer money to private artists. [Related article, Page A25.]

    The roots of the current controversy took hold in 1989, when national protests erupted over the NEA's decision to fund an exhibit of Robert Mapplethorpe's homoerotic photographs and Andres Serrano's "Piss Christ" photograph. Within a year, Congress had enacted a law that says the NEA must "tak[e] into consideration general standards of decency and respect for the diverse beliefs and values of the American public" in awarding grants each year.

    Having such a standard, the court made clear yesterday, is not unconstitutional.

    Considerations of decency and respect for public values "do not silence speakers by expressly threatening censorship of ideas," Justice Sandra Day O'Connor wrote for the court.

    But Justice David H. Souter said in the lone dissent that the NEA standard would naturally harm any artist whose work shows disrespect for traditional American values or whose idea of art is outside the mainstream.

    The case was brought by four performance artists, including Karen Finley, a New York City woman who has gained notoriety for covering her nude body with chocolate. The artists challenged the decency standard as a violation of the First Amendment, arguing that it suppresses artistic expression and serves to discriminate against anyone whose ideas are unorthodox. They won in lower courts, with the U.S. Court of Appeals for the 9th Circuit ruling two years ago that the phrase "decency and respect for the diverse beliefs and values" is unconstitutionally vague and restricts artistic viewpoint.

    In reversing that decision, the Supreme Court emphasized that any consideration of a project's content, including standards of decency, is a consequence of the nature of arts funding.

    "The NEA has limited resources and it must deny the majority of the grant applications that it receives, including many that propose `artistically excellent' projects," O'Connor wrote. Congress, she noted, has latitude to set spending priorities.

    To meet the law's decency requirement, the NEA says any work being considered for a grant is reviewed by a panel of diverse membership. The decency criteria are part of an overall assessment of a grant applicant.

    And O'Connor said that, unlike when Congress adopts a criminal statute, the law can be vague in some of its criteria if the matter involves a spending bill. O'Connor said that if the NEA were to award subsidies on the basis of subjective criteria that penalized unpopular viewpoints, "then we would confront a different case." She was joined by Chief Justice William H. Rehnquist and Justices John Paul Stevens, Anthony M. Kennedy and Stephen G. Breyer.

    Joining in the judgment were Justices Antonin Scalia and Clarence Thomas, who wrote separately that it would be "perfectly constitutional" to establish criteria that barred funding for certain viewpoints.

    "It is the very business of government to favor and disfavor points of view on innumerable subjects, which is the main reason we have decided to elect those who run the government, rather than save money on making their posts hereditary," Scalia wrote.

    They accused the majority of "gutting" the decency standard in its interpretation to have an easier time of upholding it.

    In his dissent, Souter reminded the court of the law's origins. "One need do nothing more than read the text of the statute to conclude that Congress's purpose in imposing the decency and respect criteria was to prevent funding of art that conveys an offensive message," he said.

    He said the provision would foster self-censorship, not only because artists want NEA grants but also because that money is often matched by private donors and states. Since its creation in 1965, the NEA has given out more than $3 billion in grants.

    Numerous arts, literary and cultural groups had entered the case of National Endowment for the Arts v. Finley.

    Georgetown University law professor David Cole, who represented the artists, said he was heartened that a majority said that the First Amendment indeed applies to arts funding and that targeting specific offensive views might be unconstitutional. The case was a broad challenge to the law, and the justices left open the possibility that an individual decision based on decency considerations could be unconstitutional.

    © Copyright 1998 The Washington Post Company

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