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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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AND THE FIRST AMENDMENT Site Table of Contents |
The First Amendment protections of
freedom
of expression seem less sacrosanct to some when the expression is
financed
by the taxpayer. The use of grant money from NEA to create what some
consider
pornographic or blasphemous art became the subject of enormous
controversy
in the late 1980s. The precise applicability of the First Amendment
protections
in government-funded activities has been the source of much confusion
in
the public debate and the focus of extensive review in the courts.
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In the late 1980s, Congress passed controversial prohibitions on the funding of "obscene" art, triggering thunderous protests from both artists and civil libertarians. At the height of the controversy, then-President George Bush fired the NEA chairman John Frohnmayer.(1)
This phase of the controversy centered on obscenity, which is a recognized exception to First Amendment protection. In 1989 Congress used language from the Miller v. California decision in an amendment to the annual NEA appropriations act:
none of the funds . . . may be used to promote, disseminate, or produce materials which . . . may be considered obscene, including but not limited to, depictions of sadomasochism, homoeroticism, the sexual exploitation of children, or individuals engaged in sex acts and which, when taken as a whole, do not have serious literary artistic, political, or scientific value. (2)NEA required grant recipients to certify that they would not use grant funds "to promote, disseminate, or produce [obscene] materials." (3)
Many artists and arts organizations, including the late Joseph Papp, producer of the New York Shakespeare Festival and A Chorus Line (4), refused to accept NEA grants to protest the prohibitions on the content of their art. Some filed lawsuits challenging these restrictions on their exercise of free speech. Federal courts sided with the artists, striking down as unconstitutional the certification required by NEA. In a lawsuit brought against NEA by the Bella Lewitsky Dance Foundation, the court held that the requirement was unconstitutionally vague and that it violated the First Amendment protection of free speech. (5)
"Vagueness" violates the Fifth Amendment due process clause. People may not be subject to statutes which are so vague that ordinary people do not understand what they mean and thus could not avoid the conduct prohibited. As NEA applicants would not know how to meet this standard in the future, the clause is unconstitutional. The court concluded that NEA's promise to apply the Miller standard of obscenity did not cure the unconstitutional vagueness. The court also held that the NEA certification requirement violated the First Amendment protection of free speech, because it had an unconstitutional "chilling effect" on grant applicants.
Congress tried a different approach in the 1990 reauthorization of NEA, requiring that NEA take "into consideration general standards of decency and respect for the diverse beliefs and values of the American public." This provision was struck down as an unconstitutional violation of the Fifth and First Amendments in another lawsuit against NEA brought by four performance artists, Finley v. National Endowment for the Arts. (6) The court held that discretionary NEA grants are subject to First Amendment standards, using the analogy of academic freedom in American colleges and universities. The Justice Department filed an appeal to this decision. The NEA later settled with the artists (Karen Finley, John Fleck, Holly Hughes, and Tim Miller), in exchange for an agreement by the artists to drop their procedural claims.
In November 1996, the Ninth Circuit Court of Appeals issued its decision on the constitutional issues, Finley v. National Endowment for the Arts. By a 2-1 majority, this court agreed with the lower court that the "decency and respect" clause was unconstitutionally vague under the Fifth Amendment and an impermissible restriction on the First Amendment rights of the artists. (7) A petition for a rehearing was denied by the Ninth Circuit in May 1997. The published report of this denial includes a dissent by a judge who had not heard the previous appeal.
On August 29, 1997, the U.S. Department of Justice petitioned the U.S. Supreme Court to overturn the Ninth Circuit Decision. The petition argued that the Court should "recognize a protected First Amendment interest in artistic expression funded by the government," but that the "decency" clause should be found constitutional, as "public subsidization of art, like public funding of the press and university activities, demands government neutrality." On November 26, 1997, the Court announced that it would hear the case and oral arguments were held on March 31,1998. On June 25, 1998, the court announced its decision, upholding the so-called "decency" clause. (Check the introduction page for the most recent updates on briefs, transcripts, and related materials for this case.)
Although not the principal focus of the court decisions, it should be noted that Congress' 1965 endorsement of freedom of expression was also compromised with new language in the authorizing legislation:
[T]he government must be sensitive to the nature of public sponsorship. Public funding of the arts . . . should contribute to public support and confidence in the use of taxpayer funds. Public funds provided by the Federal Government must ultimately serve public purposes the Congress defines. (8)Freedom of expression has never been exactly the same in the context of Federally funded activities as it is in the private sector. The difference between discretionary grants (such as NEA's) and "entitlements" (such as Social Security) is important in understanding the complexity of First Amendment rights in the context of NEA funding. Over the years, the courts have established several principles, although not without continued debate and controversy.
No one has a constitutional right to a grant from the NEA.
NEA grants are "discretionary" grants, not "entitlements." The pool of funds available each year is limited. Meeting the eligibility criteria does not entitle an applicant to funds, but only to the right to compete for funds. A denial for fiscal reasons, in and of itself, does not constitute a denial of the right of freedom of expression.(9)
A right under the U.S. Constitution does not necessarily include a right to a subsidy to exercise that right.
Even though an artist has a right of artistic expression as a citizen, the artist does not thereby have a right to receive a grant from the NEA to finance the exercise of that right of artistic expression. (10)
In Advocates for Arts v. Thomson, (11) a literary journal was denied funding by the New Hampshire Commission on the Arts on artistic grounds. (The Commission was spending Federal funds awarded to state arts councils by the NEA, under authority of the NEA enabling legislation, which governed the state grants.) The court made clear that denial of the grant did not constitute "suppression" of the work. "A disappointed grant applicant cannot complain that his work has been suppressed, but only that another's has been promoted in its stead."(12)
The government may impose some restrictions on government-subsidized activities.
The right to exercise free speech in the context of a government-subsidized activity is not absolute.(13)
In accepting funds from the government, the recipient does not thereby forfeit all constitutional rights.
State university professors paid with government funds retain rights of freedom of expression, for example.(14)
In determining whether someone should get a grant from the NEA, the government cannot penalize the applicant for the exercise of the constitutional right of free speech prior to the grant.
NEA argued that the artists were free to exercise their First Amendment rights independently of the NEA funding and that the non-obscenity certification requirement did not place any obstacles to such exercise. But the Lewitsky court noted NEA's "extensive role in the financing of the arts" and the frequency with which private funding decisions were made based upon NEA's decision to fund an applicant.(15) The Finley court noted that, by law, NEA could fund no more than 50% of a project activity. A restriction on NEA funds thus would penalize the activity supported with non-Federal funds.(16)
The review process used by NEA in deciding future grants also resulted in an unconstitutional penalty for an applicant's exercise of free speech prior to the grant. The applications of the four performance artists in Finley were rejected because of their previous work as artists, work which the Chairperson and National Council found objectionable on "decency" grounds, even though their overall work had been rated high on artistic standards. (17)
To make clear the fine distinction being drawn here, imagine that someone had submitted a proposal for a documentary film on political movements in this country and a review panel had given the proposal its highest ratings for artistic excellence. If the National Council and the Chairperson then decided to reject the proposal specifically because the film maker previously had made a speech criticizing the current administration, this rejection of the proposal would constitute a penalty for the previous exercise of free speech. Thus, the rejection of the proposal would be a violation of the First Amendment protection of free speech.
Discussion questions
The U.S. Supreme Court, in its 1998 decision, NEA
v. Finley, upheld the constitutionality of the Congressional
requirement
that NEA take "into consideration general standards of decency" in
deciding
whether to fund an application. How should we define "decency"? What
are
examples of art which could be considered "decent"? what are examples
which
should be considered "indecent"?
Should
a government agency fund these projects? Consider both the pros and
cons
of government funding:
The
directors of a publicly owned and operated theater in Chattanooga
denied
the use of the facility to a private promoter for showing the rock
musical
Hair.
The theater directors said that "it would not be in the best interest
of
the community" to show Hair at the theater and might violate
city
and state laws prohibiting public nudity. The U.S. Supreme Court held
for
the promoters of Hair, arguing that the theater was a "public
forum"
and thus that expression at the theater was protected by the First
Amendment.
The Court also said that concerns about future violations of public
nudity
laws were not sufficient to ban the performance. If laws against nudity
were broken, they could be prosecuted in the normal manner after the
fact.
(Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 545 [1975])
NOTES
1. See Frohnmayer's account of this widely reported firing in his Leaving Town Alive, op. cit., pp. 323-4, 331). Return to text
2. The language was added by Senator Jesse Helms to the appropriations bill for the National Endowment for the Arts. Department of the Interior and Related Agencies Appropriation Act of 1990 (Pub.L. 101-121, Title III, 304(a), 103 Stat. 741). Return to text
3. Bella Lewitsky Dance Foundation v. Frohnmayer, 754 F.Supp. 774, 776 (C.D.Cal. 1991). Return to text
4. Frohnmayer, Leaving Town Alive, op. cit., pp. 130, 134-5, 297, "Arts Leaders Honored," Los Angeles Times, April 30, 1993, p. F2. Return to text
5. Bella Lewitsky Dance Foundation v. Frohnmayer, 754 F. Supp. 774. Return to text
6. Finley v. National Endowment for the Arts, 795 F.Supp. 1457 (C.D. Cal. 1992). Return to text
7. "National Endowment for the Arts settles lawsuit brought by performance artists," Entertainment Law Reporter XV (August 1993), p. 28; "NEA to Settle With Artists for Rejected Grants," Los Angeles Times, June 5, 1993, p. A10; "Artists Claim $252,000 Settlement is a Victory," Los Angeles Times, June 6, 1993, p. B6. Return to text
8. Added in Pub.L. 101-512 Sec. 101 (1990), codified as 20 U.S.C. 951(5). Return to text
9. This reason was made clear in a 1991 lawsuit against the NEA by a rejected grant applicant. the court noted, "Plaintiff's desire for funding, without more, does not rise to the level of a constitutionally protected interest," as no one has a "legitimate claim of entitlement" to funds from NEA. Frasier v. U.S. Department of Health and Human Services and National Endowment for the Arts, 779 F.Supp. 213, 222 (N.D.N.Y. 1991). Return to text
10. This principle appears in a long line of court decisions and is discussed in Bella Lewitsky Dance Foundation v. Frohnmayer, 754 F.Supp. at 784. Return to text
11. 532 F.2d 792 (1st Cir., 1976), affirming 397 F.Supp. 1048 (D.N.H. 1975). Return to text
12. 532 F.2d at 795. Return to text
13. In a controversial decision in 1991, Rust v. Sullivan, 500 U.S. 173, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991), the U.S. Supreme Court held that it was not unconstitutional for the Bush administration to prohibit doctors from discussing abortion with patients in family planning clinics which had been supported with Federal grant money. In this case, however, the restriction was placed on the overall program, not on particular recipients of subsidies. This distinction is emphasized in Finley v. National Endowment for the Arts, 795 F.Supp. at 1463. Return to text
14. An important case supporting this academic freedom is Keynishian v. Board of Regents, in which the court said, "Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the first Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom." 385 U.S. 589, 603, 87 S.Ct. 675, 683, 17 L.Ed.2d 629, 640 (1967). Return to text
15. Bella Lewitsky Dance Foundation v. Frohnmayer, 754 F.Supp. at 785. Return to text
16. Finley v. National Endowment for the Arts, 795 F.Supp. at 1472, n. 18. Return to text
17. Id. at 1463-4. Return to text
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Last updated: July 4, 2005