Four performance artists whose National Endowment for the Arts grant applications were rejected by NEA Chairman John Frohnmayer filed suit yesterday against the agency and Frohnmayer in Los Angeles federal court, charging the rejection was based on the political rather than the artistic content of their work.
A panel of artists unanimously recommended last spring that Karen Finley, Holly Hughes, John Fleck and Tim Miller all be funded by the NEA but Frohnmayer overturned that decision. The suit also charges that Frohnmayer violated NEA procedures requiring the chairman to receive guidance from the National Council on the Arts; in this case Frohnmayer polled the council by phone, rather than convening a quorum of council members, before he made his decision.
An NEA spokeswoman said the agency had no comment.
"There is no question that the work of these artists is considered excellent in the arts community," said attorney Ellen Yaroshefsky, a member of the National Campaign for Freedom of Expression Legal Defense Team, which filed the suit on behalf of the artists. "The works talk about the victimization and powerlessness of women in this culture, the victimization of gay people and the victimization of people with AIDS, and all of them express the views that heterosexuals and homosexuals should be treated equally," said Yaroshefsky.
"The four vetoed grants was certainly the most extreme action Frohnmayer took in fulfilling the right wing's agenda in his role as chairman," plaintiff Tim Miller said yesterday.
All four artists address issues of sexuality, religion and politics in their work, and Finley, Hughes and Fleck had all been targeted by critics of the NEA before their grants were rejected. All four have received NEA support in the past.
At its May meeting, the National Council deferred consideration of all grants in the category of solo performance, including those four controversial applications. Frohnmayer then sent information about a number of grants to the council members and consulted with them on the phone before rejecting the grants.
Several days earlier, Frohnmayer told a group of arts activists in Seattle that he might turn some controversial grants down on political grounds to avoid exacerbating the agency's continuing problems on Capitol Hill. Yaroshefsky said she believed Frohnmayer's statement revealed that "he violated the First Amendment because it was done based upon the political opinions expressed in their work."
The four artists appealed to the endowment, but in August Frohnmayer upheld his original action.
An NEA statement released at the time said that the National Council members believed the grants "were not appropriate for federal support and recommended that the Chairman reject them. The Arts Endowment is charged by Congress with determining, among other criteria, whether a work will enhance public understanding and appreciation of the arts. The Chairman, deciding that these would not, accepted the Council's recommendation."
Legal scholars reached yesterday said the case will hinge on whether the plaintiffs can prove -- in the Supreme Court's phrase -- that the government was engaged in the "suppression of dangerous ideas."
"It does seem to me that the law is rather clear," said conservative legal scholar Bruce Fein. "If the purpose of the rejection was that those who disliked the proposal wanted to suppress the ideas -- they were animated by malice -- that is a good First Amendment claim."
But, Fein said, "it's the kind of case that's very, very difficult to prove. Anyone who doesn't get a grant can allege, 'They don't like my idea.' "
Harvard Law School professor Kathleen Sullivan said, "The Supreme Court has always said that a denial of the subsidy that was aimed at the 'suppression of dangerous ideas' would be a First Amendment violation. They just have never found such an animal to date."
The suit also claims the NEA violated Finley's right to privacy by breaching the confidentiality of her grant application.
Meanwhile, the Associated Press reported that evangelist Pat Robertson yesterday launched a new round of charges against the agency, claiming that the NEA funded a puppet show featuring simulated oral sex. The show was performed last week at an arts festival in Atlanta.
NEA spokesman Jack Lichtenstein denied that any NEA funds went to the festival.
"This is just the latest example of the continual distortion of fact by the arts endowment's most virulent critics, those intent on eliminating the agency at any cost, even that of the truth," said Lichtenstein.
"The intent was to satirize all the lust and all this hoo-haw over lust in our society," said Jon Ludwig, artistic director of the Center for Puppetry Arts in Atlanta, who wrote and directed the show. Ludwig denied that the show, which he said was intended for adults, included depictions of oral sex. "It was not simulated oral sex. It's impossible. How can puppets do that? They don't even have the parts."