High court allows NEA to enforce ‘decency’ standard

U.S. SUPREME COURT–Decency can be a factor when deciding which projects should receive funding from the National Endowment for the Arts, the Supreme Court said in a 8-1 ruling in late June.

The high court ruled that it is constitutionally sound for the government to establish criteria that bar funding based on certain viewpoints. 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.

The decision ended the debate that started in 1989 when the NEA funded two projects that prompted public controversy: an exhibit of Robert Mapplethorpe’s homoerotic photographs, which several members of Congress condemned as pornographic, and Andres Serrano’s “Piss Christ,” a photograph of a crucifix immersed in urine. The following year, Congress reviewed the NEA grant selection process and 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.

Four performance artists challenged the decency standard in a lawsuit in 1991, alleging that the NEA had violated their First Amendment rights by rejecting their applications on political grounds.

In 1992, a federal District Court in Los Angles granted summary judgment in favor of the artists, reasoning that “the very nature of our pluralistic society is that there are an infinite number of values and beliefs, and correlatively, there may be no national ‘general standards of decency.'”

The U.S. Court of Appeals in San Francisco (9th Cir.) agreed in 1996 and ruled that the phrase “decency and respect for the diverse beliefs and values” is unconstitutionally vague and restricts artistic viewpoint.

In reversing the lower courts’ decisions, the Supreme Court emphasized that consideration of a proposal’s merits and choosing to fund only a small percentage of them is a consequence of NEA’s limited resources, and Congress has a “wide latitude to set spending priorities.”

“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,” Justice Antonin Scalia wrote in a concurring opinion.

In the lone dissent, Justice David Souter argued that the NEA standard penalizes artists with unorthodox ideas.

“The fact that the statute disfavors art insufficiently respectful of America’s ‘diverse’ beliefs and values alters this conclusion not one whit: the First Amendment does not validate the ambition to disqualify many disrespectful viewpoints instead of merely one,” Souter wrote. (National Endowment for the Arts v. Finley; Artists’ Counsel: David Cole, Washington, D.C.)