Groups Shiver at 'Chilling Effect'
Washington Post Staff Writer
Friday, June 26, 1998; Page A18
Representatives of arts groups yesterday said they were deeply disturbed that the U.S. Supreme Court in its decision yesterday failed to understand "the chilling effect" of congressional wrangling over artistic freedom and public funding of the arts.
"The ruling was extremely disappointing," said Roberto Bedoya, the executive director of the National Association of Artists Organizations, one of the plaintiffs in National Endowment for the Arts v. Finley. He singled out the effect Congress has had "on the NEA and the individual artists."
Since the choice of artistic and political themes became a litmus test for public funding around the country, groups have developed self-censorship, said David Greene, an attorney and the program director for the National Campaign for Freedom of Expression, one of the Finley lawsuit's sponsors.
Philip Bither, curator of performing arts at the Walker Art Center in Minneapolis, agreed.
"We have already seen a significant impact on artists and organizations in what they can go to the endowment for. Indirectly it has had a negative impact on the range of work that is coming from living artists," said Bither. The Walker had its share of controversy when it sponsored a program with an HIV artist. The program was not funded by the NEA but it was linked publicly to federal funding.
But officials at the center of the storm, which has overshadowed debate about the direction of the NEA and forced reorganization of its tasks, were relieved and enthusiastic.
"We are pleased with the Supreme Court ruling. Today's decision is an endorsement of the endowment's mission to nurture the excellence, vitality and diversity of the arts and a reaffirmation of the agency's discretion in funding the highest quality art in America," said William J. Ivey, the NEA chairman.
The decision brought to a close eight years of legal battles about restrictions on artistic freedom. The mix of arts and politics had long caused disputes, and the arts endowment, since its creation in 1965, had often been at the their center.
The debate intensified in 1989 when the NEA funded two photographers, Robert Mapplethorpe and Andres Serrano, whose work was deemed indecent. The Finley case followed in 1990 when the grants to four performance artists were rejected by the NEA chairman. Congress stepped in and instituted a "decency and respect" clause as part of the NEA's grant-making criteria.
Since then a number of grants have put the agency in hot water, supplying its opponents with new reasons to call for drastic cuts and even elimination. In 1996, Congress ordered that the NEA can no longer make grants to individual artists, except for literature fellows and jazz and folk artists.
In the majority opinion, Justice Sandra Day O'Connor said, "Only a handful of the agency's roughly 100,000 awards have generated formal complaints about misapplied funds or abuse of the public's trust."
Those who have fought hard to end federal funding for the arts interpreted the ruling as a new window for more congressional restrictions. "I think it showed clearly that the Congress has the prerogative to add more restrictions. That's good news, but it remains a question whether Congress will step up to the plate," said Marshall Whitman, director of congressional relations for the Heritage Foundation.
In the opinion of activists and lawyers who represent the artistic community, the court decision almost guarantees the continuation of the chilling effect.
The advocates cited cases in Cobb County, Ga., and Mecklenburg County, N.C., where local arts agencies lost their municipal funding because of support of works with homosexual characters or themes. Last December the Out North Contemporary Art House in Anchorage, Alaska, had funding overturned by the state assembly because some legislators said its programs were not "family-oriented." Also last year in San Antonio, the Esperanza Center, a cultural and social justice organization, was denied city funding after the mayor disagreed with its politics and called it "an in-your-face organization."
But Pat Trueman, director of government affairs for the conservative American Family Association, said only those programs that should be restricted would be.
"Children's choirs and orchestras wouldn't be chilled because this ruling doesn't affect them. No one has alleged that the NEA only funds indecent artists," said Trueman. "This is a positive ruling, but it doesn't work if you don't have people at the NEA who recognize the difference between decency and indecency."
Meanwhile, yesterday NEA supporters on the House Appropriations Committee reversed the decision of its subcommittee to remove funds from the agency. A majority of 31 to 27 voted to restore $98 million for fiscal 1999.
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