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The question in this case is whether the first amendment permits
the Governor and Council of New Hampshire to refuse a grant-in-aid
to a literary magazine because they regard a poem appearing in
a past issue of the magazine as an "item of filth."
The district court, treating the defendants' motion to dismiss
as a motion for summary judgment . . . and found no first amendment
violation. 397 F.Supp. 1048 (D.N.H. 1975). We agree.
In 1965 Congress established the National Foundation on the Arts
and the Humanities, . . . in order "to help create and sustain
not only a climate encouraging freedom of thought, imagination,
and inquiry but also the material conditions facilitating the
release of this creative talent. . . ." 20 U.S.C. 951(5).
Within this foundation Congress established a National Endowment
for the Arts with responsibility for awarding grants-in-aid, both
directly to those groups and individuals whose artistic endeavors
"have substantial artistic and cultural significance,"
20 U.S.C. 954(c)(1), or are otherwise worthy of public support,
20 U.S.C. 954(c)(2)-(5), and indirectly through state agencies
established to serve the same purposes, 20 U.S.C. 954(g).
Responding to the federal legislation, the Hew Hampshire legislature
established the New Hampshire Commission on the Arts (the Commission)
to administer the grant program in New Hampshire. . . . The legislature
declared that "all activities undertaken by the state in
carrying out [the program] shall be directed toward encouraging
and assisting rather than in any ways limiting the freedom of
artistic expression that is essential for the well-being of the
arts." . . . At first the legislature made no provision for
executive review of the Commission's funding decisions, but under
general provisions of the New Hampshire constitution and laws
calling for approval of treasury disbursements and department
expenditures . . . the practice evolved that Commission grants
of over $500.00 were submitted to the Governor and Council for
their approval before becoming final. On July 5, 1975, while this
litigation was before the district court, the legislature specifically
provided for such approval by amendment to [the state statutes].
Granite is a journal of poetry, fiction, translations and
letters that was first published in the spring of 1971. The first
three issues, appearing in 1971-1972, were privately funded. An
enlarged fourth issue, entitled Northern Lights, was supported
by a grant-in-aid voted by the Commission and approved by the
Governor and Council in mid-1972. The present controversy arose
when Granite's publishers applied for a second grant in
October 1973. On March 4, 1974, the Commission voted to award
a grant of $750.00. the Governor and Council at first determined
to approve this grant, at a meeting on May 1, 1974. After the
meeting was adjourned, however, the Governor and members of the
Council were shown a poem in the Northern Lights issue of Granite
entitled "Castrating the Cat." They then reconvened
the meeting and reversed their decision. At the time the governor
characterized the poem as "an item of filth," and in
a letter notifying the Commission of the decision not to approve
the Granite grant-in-aid explained that the magazine had
published "obscenities." [Footnote from the court: Defendants
do not contend, despite this characterization, that either the
poem or any prior issue of Granite is obscene in the constitutional
sense.]
The complaint in this suit was filed on April 15, 1975. The plaintiffs
are Granite publications, the nonprofit corporation that
publishes Granite; Advocates for the Arts, a national organization
concerned with promotion of the arts, with members in New Hampshire;
an individual member of Advocates of the Arts who resides in New
Hampshire; and two individuals whose work appeared in the Northern
Lights issue of Granite, one of whom is also a subscriber
to the magazine. The complaint alleged that the Governor and Council,
in disapproving the $750.00 grant-in-aid on the basis of their
own "personal adverse reaction" to a single poem had
violated the first and fourteenth amendments to the constitution,
as well as the federal and state statutes authorizing the program.
. . . Under 42 U.S.C. 1983 the plaintiffs sought declaratory and
injunctive relief.
The district court found that federal jurisdiction was proper
under 28 U.S.C. 1331 and that all of the plaintiffs had standing
to sue. 397 F.Supp. 1048, 1049-50. . . On the merits the court
sought to identify exactly what governmental conduct had aggrieved
the plaintiffs. It considered that "[t]he only action taken
by the defendants is their refusal to sanction the grant because,
in their judgment, they do not believe the magazine worthy of
state support." Id. at 1052. Regarding such a 'value
judgment as to . . . literary worth" as "intrinsic to
the benefit being sought," the court could find no first
amendment violation. Id. at 1052-53. Similarly, the court
held that nothing in 20 U.S.C. 954 prevented state executive review
of the funding decisions of a state agency established under that
provision, and that such review was not only permitted but required
by New Hampshire law. Id. At 1053-54.
In this appeal the plaintiffs have chosen not to pursue their
statutory claims and ask us only to review that part of the district
court's decision holding that their complaint alleged no first
amendment violation.
There is no question that this case is properly before us. The
plaintiffs' claim that the defendants' reversal of the grant awarded
to Granite by the Commission stifled free expression raises
a substantial federal question for which jurisdiction is plainly
afforded by 28 U.S.C. 1343(3) and 42 U.S.C. 1983. . . . Moreover,
the claim that as a result of the defendants' action Granite
was forced to curtail and delay further publishing endeavors was
enough to demonstrate that at least the publisher, Granite Publications,
had a "'personal stake in the outcome' such as to 'assure
that concrete adverseness which sharpens the presentation of issues
upon which the court so largely depends for illumination of difficult
constitutional question.'" . . . That Granite publications
is a corporation has no bearing on its standing to assert violations
of the first and fourteenth amendments under 42 U.S.C. 1983. .
. [W]e thus find a justiciable controversy between Granite Publications
and the defendants. . . .
Nor is there any question that if defendants violated the first
amendment, federal injunctive relief would be appropriate. The
defendants have advanced no administrative remedy that must be
exhausted before plaintiffs can assert their first amendment claim
in federal court. If refusal of aid to Granite restrained
freedom of speech, it would be no answer that Granite could
seek funds directly from the National Endowment for the Arts .
. . or that it could ask the National Endowment to cut off further
funding of the New Hampshire Commission under 20 U.S.C. 954(h),
even assuming that that provision were applicable to the alleged
violation. . . . Nor are the plaintiffs barred from equitable
relief by any adequate remedy at law. If the decisional process
leading to denial of funds to Granite violated the first
amendment, as plaintiffs allege, appropriate relief would include
an injunction ensuring that the violation does not recur, whether
or not Granite showed itself to be threatened by recurring
violations. . . .
We turn, then, to the merits of the plaintiffs' first amendment
claim. We do not, of course, understand plaintiffs to suggest
that public funding of the arts is unconstitutional. Such a broadside
attack would be undercut by the Supreme Court's interpretation
of the first amendment in Buckley v. Valeo, 424 U.S. 1
(1976). . . that the public financing of political campaigns "furthers,
not abridges, pertinent First Amendment values. . . ." .
. . The plaintiffs' claim is rather that a decision not to fund
a particular arts project such as Granite based on nothing
more than personal preferences constitutes a prior restraint of
free expression. While they would not, apparently, subject public
funding decisions to the full panoply of procedural safeguards
applicable to official actions regulating expression in public
places, . . . they urge that "narrow standards and guidelines"
are constitutionally required to ensure that funding decisions
be based on "literary or artistic merit" rather than
on the decision maker's "prejudices or his disagreement with
what is being said. . . . " While this argument has some
attraction, we find it ultimately unpersuasive.
The plaintiffs' reliance on the prior restraint doctrine is, in
our view, mistaken. The premise of that doctrine is that "government
has no power to restrict expression because of its message, its
ideas, its subject matter, or its content[,]" . . . at least
where the expression so restricted is protected 'speech"
within the first amendment. . . . it is to assure adherence to
this principle that courts have required discretionary official
action regulating expression to be accompanied by "rigorous
procedural safeguards," . . . including prompt judicial review.
. . . But public funding of the arts seeks "not to abridge,
restrict, or censor speech, but rather to use public money to
facilitate and enlarge" artistic expression. . . . A disappointed
grant applicant cannot complain that his work has been suppressed,
but only that another's has been promoted in its stead. The decision
to withhold support is unavoidably based in some part on the "subject
matter" or 'content" of expression, for the very assumption
of public funding of the arts is that decisions will be made according
to the literary or artistic worth of competing applicants. Given
this focus on the comparative merit of literary and artistic works
equally entitled to first amendment protection as "speech,"
courts have no particular institutional competence warranting
case-by-case participation in the allocation of funds. . . .
There is, to be sure, a close resemblance between a governmental
program directly subsidizing artistic projects and productions,
and a governmental plan to construct and maintain an auditorium
with public funds and to schedule dramatic and other artistic
performances therein. And the Supreme Court has held that a municipal
decision refusing to schedule a particular production in its auditorium
on grounds of obscenity was a prior restraint of expression subject
to the traditional procedural safeguards. Southeastern Promotions,
Ltd. V. Conrad, 420 U.S. 546 (1975) But we think there are
significant differences between the two cases. First, the court
in Southeastern chose to view a public auditorium "as if
it were the same as a city park or street. . . ." . . . such
an approach finds justification in the tradition of freedom from
government interference with expression in public places in our
society. . . . But there is no similar tradition of absolute neutrality
in public subsidization of activities involving speech. As the
Supreme Court has observed "Our statute books are replete
with laws providing financial assistance to the exercise of free
speech, such as aid to public broadcasting and other forms of
educational media, . . . and preferential postal rates and antitrust
exemptions for newspapers. . . . "
Second, while it may be feasible to allocate space in an auditorium
without consideration of the expressive content of competing applicants'
productions, such neutrality in a program for public funding of
the arts is inconceivable. The purpose of such a program is to
promote "art", the very definition of which requires
an exercise of judgment from case to case. Moreover, money is
a flexible instrument than a public building: an applicant may
receive varying amounts depending upon his needs and the promise
of his work; similarly, the quantity of available funds may vary.
Solutions that may work for an auditorium, such as scheduling
on a first-come-first-served basis or upon a prescribed showing
of likely box-office success (if that is a solution) are simply
not available to a program for funding the arts. If such a program
is to fulfill its purpose, the exercise of editorial judgment
by those administering it is inescapable.
Plaintiffs contend nonetheless that while some consideration of
content may be necessary, particular decisions should be required
to follow "narrow standards and guidelines" that will
insulate the result from the prejudices of the decision-maker.
. . . Presumably these standards and guidelines would elaborate
the statutory standard of artistic and cultural significance,
although just how they would further refine that standard is unclear.
But however the standards are phrased we think it would be unwise
to require an objective measure of artistic merit as a matter
of constitutional law. The Supreme Court has said that "[e]ach
medium of expression . . . must be assessed for First Amendment
purposes by standards suited to it, for each may present its own
problems. . . ." and it might be added that each form of
governmental involvement in free expression must be similarly
assessed. Attitudes toward art change, and even at one time, "it
is . . .often true that one man's vulgarity is another's lyric.
. . . " In the absence of ascertainable principles by which
to define artistic merit, we see no reason to demand that official
discretion in this area be hedged by "narrow, objective and
definite standards.' . . . This is not to say that the standard
of artistic merit is not an important goal . . . but only that
it and guidelines elaborating it do not lend themselves to translation
into first amendment standards.
What is perhaps most troubling about this case is not that Granite
should be denied public support, but that the denial should be
based on a reading of just one poem in a back issue, without consideration
of the overall quality of the publication either alone or as compared
to competing grant applicants. But we doubt that this problem
has a constitutional solution. Granite's claim of arbitrary
treatment at the hands of the Governor and Council is essentially
a claim of denial of due process. Yet in the absence of any right
to public support of private expression, it seems unlikely that
Granite has a sufficient "liberty" or "property"
interest in a favorable decision to be able to claim a right to
procedural regularity under the fourteenth amendment. . . . .
and even if this hurdle were surmountable, it is difficult to
say what process would be appropriate in this context. Given the
ultimate necessity of subjective judgment, we doubt that the advantages
of a hearing or statement of reasons would justify the cost, or
that an explicit finding of insufficient artistic merit would
have any more than cosmetic significance. In short, if the consideration
Granite received was inadequate, it must look elsewhere
than to the Constitution for relief.
A claim of discrimination would be another matter. The real danger in the injection of government money into the marketplace of ideas is that the market will be distorted by the promotion of certain messages but not others. To some extent this danger is tolerable because counterbalanced by the hope that public funds will broaden the range of ideas expressed. . . . but if the danger of distortion were to be evidenced by a pattern of discrimination impinging on the basic first amendment right to free and full debate on matters of public interest, . . . a constitutional remedy would surely be appropriate. On where to draw the line, reasonable minds may differ. But in our view the refusal here to promote a magazine on the ground that it has published a poem entitled "Castrating the Cat", which contains language and imagery that some may find offensive, falls short of the kind of discrimination that justifies judicial intervention in the name of the Constitution. . . . Affirmed.
-It is better to marry than to burn - St. Paul
you may keep both balls preserved in a jar
on the mantle piece
he will be tamer more loving
to his keepers
he sill not stray after cat cunt
and his urine will not smell
should he spray the mattress
--a simple swipe of scapel [sic]
along the scrotum
and it is done-
do not let the image of your own hulk
drawn down a banister of razor blades
finger the inside of your sac
think of him as a tenor in the choir
--and it is done
the nurse washes her hands of him
yes she smiles we clipped his wings-
as above the errors flesh is heir to
like St. Simeon on his desert pole
unwashed in rags
who picked up each worm that fell
from his arm bid it eat and put it back
Notes omitted from the report of the opinion.
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Last updated: June 28, 1998