at the National Endowment for the Arts
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Filed May 1, 1997
Before: James R. Browning, Warren J. Ferguson, and Andrew J. Kleinfeld,
Circuit Judges.
Order; Dissent by Judge O'Scannlain
ORDER
A majority of the panel has voted to deny the petition for
rehearing and to reject the suggestion for rehearing en banc.
The full court has been advised of the suggestion for rehearing
en banc. An active judge requested a vote on whether to rehear
the matter en banc. The matter failed to receive a majority of
the votes of the nonrecused active judges in favor of en banc
consideration. Fed. R. App. P. 35.
The petition for rehearing is denied and the suggestion for rehearing
en banc is rejected.
O'SCANNLAIN, Circuit Judge, joined by KOZINSKI and KLEINFELD,
Circuit judges, dissenting from order rejecting suggestion for
rehearing en banc:
This case should be reheard en banc because our three judge panel
split decision conflicts with two other circuits, is wrong on
the merits, and turns the First Amendment on its head.
The plaintiffs are artists, who, along with 5,164 others, applied
for a Visual Arts Fellowship from the National Endowment for the
Arts ("NEA") in 1994. The plaintiffs weren't awarded
fellowships (although 88 others were) so they sued, claiming that
their First Amendment rights had been violated because Congress
required the NEA, in addition to judging applications by "artistic
excellence " and "artistic merit," to "tak[e]
into consideration general standards of decency and respect for
the diverse beliefs and values of the American public." 20
U.S.C. S 954(d). In ruling that the "decency and respect"
provision offends the First Amendment, our divided court commits
three grave errors.
First, the panel majority gave the NEA statute an implausible
construction. According to the panel, rather than merely take
"decency and respect" into consideration, as the statute
says, the NEA must use "decency and respect" as the
decisive criterion for awarding grants. Finley v. NEA,
100 F.3d 671, 680 (9th Cir. 1996). There simply is no warrant
for manufacturing such an imagined conflict with the First Amendment.
(1)
The panel's second error aggravates the first by applying the
"void for vagueness" doctrine where it does not belong,
and without regard for the purposes underlying it. A vague law
is not as dangerous when the government is handing out a prize
instead of meting out a punishment. The "decency and respect"
provision neither "trap[s] the innocent," nor "impermissibly
delegates basic policy matters to policemen, judges, and juries
for resolution on an ad hoc and subjective basis." Grayned
v. City of Rockford, 408 U.S. 104, 108-109 (1972).
As the panel majority would have it, however, simply because the
statute is vague and has something to do with speech, it must
offend the First Amendment. See Finley,
100 F.3d at 679. In my view, this is wrong: a law must actually
threaten or chill protected speech before we strike it down.
How does the "decency and respect" provision inhibit
First Amendment rights? Tellingly, the majority doesn't say. It
merely points to the heightened need for specific standards when
a statute's provisions "touch upon speech. " Finley,
100 F.3d at 679. The need "may be even greater when a statute
subsidizes speech and the risk that the provision on its face
will inhibit speech remains." Id. This confusing (and doubtful)
statement utterly fails to explain how First Amendment liberties
are threatened when the government awards a prize.
The majority might well have thought that a government award for
certain types of art will subtly coerce artists to produce art
of that type, thereby chilling creation of "other" art.
Or it could have thought that artists cannot be denied a government
benefit because they express themselves in a particular way, i.e.,
indecently. Neither theory fits here, however.
If the first argument were true, the government could never hand
out awards for any specific type of art without chilling other
artistic expression. Under such reasoning, it would be unconstitutional
for the government to award a prize for the best performance of
Mozart's "Magic Flute" because it might coerce opera
companies across the nation to perform that opera in preference
to another.
The second argument is equally problematic. The Supreme Court
has repeatedly instructed that the First Amendment is not violated
when Congress subsidizes some speech, but not all speech. Rust
v. Sullivan, 500 U.S. 173, 193 (1991); Regan v. Taxation
with Representation of Wash., 461 U.S. 540, 549 (1983); Harris
v. McRae, 448 U.S. 297, 317 n.19 (1980); Maher v. Roe,
432 U.S. 464, 475 (1977); Buckley v. Valeo, 424 U.S. 1
(1976). Moreover, Rosenberger v. Rector & Visitors
of the Univ. of Virginia, 115 S. Ct. 2510 (1995), cannot be
stretched to cover this case: the government benefit here is given
out to a select few artists on the basis of the content of their
expression. Rosenberger should not be read to apply to
prizes.
The panel's third error comes in its alternate holding: that the
statute is impermissible because it contains content-based and
viewpoint-based restrictions. The panel applies standard First
Amendment principles to a situation that the First Amendment doesn't
cover. When the government awards a special prize to a select
few artists, it necessarily will distinguish between the artists
on the basis of the content of their speech. Indeed, content-based
distinctions are the whole reason for NEA grants. Considerations
of viewpoint are also a necessary element of the decision of whether
art is "excellent" or meritorious. What art critic would
contend that the subject matter of a work of art is irrelevant
to deciding whether it is "excellent"? In any event,
the terms "artistic excellence" and "artistic merit"
are vague enough to allow an NEA official to consider an artist's
viewpoint, but that doesn't bother the majority. It shouldn't,
because the First Amendment does not prohibit that. Neither does
the Amendment prohibit "taking into consideration general
standards of decency and respect" when awarding a prize.
The majority's opinion does far more than give a hostile construction
to a Congressional enactment in order to create a conflict with
other circuits and Supreme Court precedent, and overturn a law.
It sows the seeds of an imprudent First Amendment jurisprudence
which will untangle and choke Congress' ability to control public
funds used to sponsor any sort of free expression.
Because this case should have been reheard en banc, I respectfully dissent from the court's order not to do so.
(1) The panel creates more than an imagined conflict with two of our sister circuits. See Piarowski v. Illinois Community College, 759 F.2d 625 (7th Cir. 1985); Advocates for the Arts v. Thomson, 532 F.2d 792 (1st Cir.). cert. denied, 429 U.S. 894 (1976). Return to text
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