ACLU Sees Silver Lining in Court's Ruling on Funding for the Arts

Wednesday, June 25, 1998

WASHINGTON -- The American Civil Liberties Union today expressed relief that although the Supreme Court upheld the "decency and respect" criteria imposed by Congress on the National Endowment for the Arts (NEA) in 1990, it did so only by rendering the law to be essentially meaningless.

Ruling 8-1 in Finley v. NEA, the Court held that the law -- which instructs the NEA to "take into account general standards of decency and respect for the diverse beliefs and values of the American public" when awarding arts grants -- does not in fact require the agency to engage in "viewpoint discrimination" against offensive or unconventional ideas, which the Court acknowledged would be unconstitutional.

Instead, the Court majority, in an opinion written by Justice Sandra Day O'Connor, said that the "decency and respect" law was merely one of the many guidelines that the NEA already considers when awarding a limited pot of money to artists and arts institutions.

Significantly, Justice O'Connor said that under the law, awards to artists whose work might be considered "indecent" or "disrespectful" could not be denied. She noted that the NEA had interpreted the law to be satisfied merely by the appointment of people representing "diverse communities and perspectives" to its peer review panels.

"The Court's reading of the law is unrealistic, and ignores the real-world chilling effect of the 'decency and respect' language on artists, arts institutions and the agency itself," said Marjorie Heins, ACLU Senior Staff Attorney and one of the lawyers who represented the National Association of Artists Organizations and four performance artists: Karen Finley, Tim Miller, John Fleck, and Holly Hughes.

"But the Court's decision does relatively little damage to the First Amendment principle that when the government is supporting free expression -- whether through arts or humanities grants, libraries, or public universities -- it cannot discriminate in its funding decisions against unconventional or controversial ideas," Heins added.

Justices Scalia, Thomas, and Souter read the law to have the teeth that the ACLU believes Congress in fact intended, and to prohibit the NEA from funding controversial art. In a separate concurrence, Scalia and Thomas wrote that because they believed that government can discriminate against unpopular speech in its funding decisions. Significantly, they were the only two Justices to take this view.

Justice Souter, the lone dissenter, agreed with the ACLU's argument that standards of "decency" and "respect" are unconstitutional because they discriminate against certain viewpoints, and that artistic expression, even when supported by government dollars, must remain free of political ideology.

The case is NEA v. Finley, No. 97-371.

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