Freedom
of Expression
Freedom
of Expression
at the National Endowment for the Arts
An interdisciplinary education project partially funded
by the American Bar Association, Commission on College and University
Legal Studies through the ABA Fund for Justice and Education
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Plaintiffs, David Fordyce and Yvonne Knickerbocker, citizens and
taxpayers of Los Angeles County, initiated this action against
defendants National Endowment for the Arts ("NEA"),
an independent agency created by Congress under the National Foundation
on the Arts and the Humanities Act of 1965, and John Frohnmayer,
at all times relevant to the instant action Chairperson of the
NEA, alleging that the NEA's partial sponsorship of an art exhibition
entitled "Tongues of Flame" violates the establishment
clause of the first amendment. Defendants have subsequently moved
to dismiss the complaint, contending that plaintiffs lack standing
to pursue their claims. For the following reasons, defendants'
motion is granted.
According to plaintiffs' first amended complaint ("Complaint"),
on or about November 14, 1988, the Director of the University
Galleries of Illinois State University (the "Galleries"),
Barry Blinderman, applied to the NEA for a grant of $23,300 to
fund the creation of "Tongues of Flame." Although the
NEA initially decided not to fund the project, on May 30, 1989,
it issued a preliminary recommendation awarding a grant in the
amount of $15,000 to the Galleries to fund, in part, a catalogue
entitled "David Wojnarowicz: Tongues of Flame" ("Catalogue")
and the exhibit. In the Acknowledgments section of the Catalogue,
Blinderman confirms, "The notification of our receipt of
a very generous grant from the National Endowment for the Arts
last spring gave us the impetus to plan a comprehensive exhibition
and catalogue. My sincerest thanks go to the panelists who recommended
the award - for their insight and courage in supporting controversial
artwork."
The Wojnarowicz exhibition was on display on January, February,
and March of 1990 at the Galleries and was on display at the Santa
Monica Museum of Art from July 25, 1990 through September 5, 1990.
According to plaintiffs, "[a] central and recurring theme
throughout the Tongues of Flame Catalogue . . . is its sacrilegious,
defamatory, and scurrilous depictions of the persons of Jesus
Christ." As an example, plaintiffs point to an image in which
Christ is shown "mainlining" heroin by injecting a hypodermic
needle into his arm.
Plaintiffs hold to a form of doctrine that espouses the deity
of Jesus Christ and regards Christ as the object and center of
all religious devotion. They view the public display of the exhibition
as an affront to their liberty to practice religion free from
governmental entanglement and politically divisive governmental
intrusion into the affairs of religion. Plaintiffs further contend
that the images convey a message that plaintiffs, as nonadherents
to the anti-religious art, are outsiders and not full members
of the political community, in contravention of the establishment
clause.
In viewing a motion to dismiss, "a complaint should not be
dismissed for failure to state a claim unless it appears beyond
doubt that the plaintiff can prove no set of facts in support
of his claim which would entitle him to relief." . . .The
factual allegations of the complaint must be presumed true and
liberally construed in favor of plaintiff. . . . The plaintiff
is entitled to all favorable inferences which may be drawn from
those allegations. . . .
Plaintiffs assert standing as both citizens and taxpayers. A plaintiff,
suing as a citizen, must allege as a basis for his or her standing
to sue: (1) an injury in fact; (2) caused by, or traceable to,
the challenged action; (3) which injury is likely to be redressed
by a favorable judicial decision. . . .The injury in fact required
for standing must be immediate, objective, and concrete, rather
than speculative or abstract. . . . Moreover, the Supreme Court
has specifically noted that merely asserting spiritual injury
under the establishment clause is insufficient to support standing
to sue as a citizen. . . .
In their Complaint, plaintiffs claim only that they have suffered
a spiritual injury and that the exhibition caused offense to their
religious sensibilities. Plaintiffs do not, however, allege that
they had to confront the exhibition daily, that the exhibition
was visible in the course of their normal routine, or that their
usual driving or walking routes took them through or past the
exhibition. . . . In fact, plaintiffs do not even allege that
they have either seen the exhibition or studied the catalogue.
. . . [P]laintiffs have failed to show that they have endured
any special burdens that justify their standing to sue as citizens.
Plaintiffs also assert that they have standing to pursue this
action under a narrow "exception" to the general rule
that "taxpayers do not have standing to challenge how the
federal government spends tax revenue.". . . Again, plaintiffs'
argument is unavailing.
In Flast v. Cohen, 392 U.S. 83, 101-06 (1968), the Supreme
Court determined that taxpayers may have standing to attack congressional
actions taken pursuant to Congress' taxing and spending power
under Article I, Section 8 of the Constitution. Flast,
however, is a limited holding. Flast and its progeny countenance
taxpayer challenges to executive branch action where "Congress
. . . decided how the . . . funds were to be spent, and the executive
branch, in administering the statute, was merely carrying out
Congress' scheme." . . . Consequently, the Supreme Court
rejected the argument for taxpayer standing in [another decision]
where the nexus between the taxpayer and the congressional action
was substantially attenuated. As the court there explained, "Unlike
the plaintiffs in Flast . . . the source of their complaint
is not a congressional action, but a decision by HEW to transfer
a parcel of federal property." . . .
In the instant action, the crux of plaintiffs' complaint lies
with the NEA. Although plaintiffs claim in their opposition that
they are attacking Congress' exercise of its taxing and spending
power under Article I, Section 8 of the Constitution, they cannot
contend that there was any congressional involvement in the decision
to provide partial funding to the exhibition, that Congress participates
in the decision to grant or deny applications for federal funding,
or that the NEA merely administers a congressional directive.
Rather, Congress authorized the chairperson of the NEA and the
NEA to establish and administer a program of contracts, grants-in-aid,
and loans with groups or individuals of exceptional talent concerned
with the arts; to make the necessary artistic judgments for the
grants; and to determine the level of funding for grantees. See
20 U.S.C. Sections 924(b), 954(c). Here, plaintiffs are challenging
a decision made solely by an agency of the executive branch. As
their complaint unequivocally states, "This is an action
against an agency of the federal government for its violation
of the Establishment Clause . . . . specifically, the defendants,
by authorizing the expenditure of federal funds for the creation
and exhibition of a work entitled "tongues of flame"
. . . have unconstitutionally sponsored and endorsed a religion.
. . ." Because the nexus between plaintiffs' allegations
and Congress' exercise of its taxing and spending power is so
attenuated, plaintiffs cannot assert standing based on their status
as taxpayers.
For the reasons expressed above, it is hereby ORDERED that defendants' motion to dismiss is granted. IT IS SO ORDERED.
[Notes omitted]
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Last updated: June 28, 1998