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National Endowment for the Arts V. Finley
In National Endowment for the Arts v. Finley, 524 U.S. 569 (1998), the Supreme Court of the United States ruled that the National Foundation on the Arts and Humanities Act, as amended in 1990, ( (d)(1)), which required the Chairperson of the National Endowment for the Arts (NEA) to ensure that "artistic excellence and artistic merit are the criteria by which [grant] applications are judged, taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public" was facially valid, as it neither inherently interfered with First Amendment rights nor violated constitutional vagueness principles. Justice O'Connor delivered the opinion of the Court.

Background
Congress established the National Endowment for the Arts in 1965 as an independent agency of the federal government. To date, the NEA has awarded more than $4 billion to support artistic excellence, creativity, and innovation for the benefit of individuals and communities.

Since its establishment, the NEA has funded thousands of individual artists and arts organizations. In 1989, two controversial works that were partially or fully funded with grants from the NEA. The Institute of Contemporary Art at the University of Pennsylvania used $30,000 of a visual arts grant from the NEA to fund a retrospective of Robert Mapplethorpe’s work. The exhibit, titled The Perfect Moment, included homoerotic photographs, which Members of Congress deemed to be pornographic. Members of Congress also criticized Serrano’s work, Piss Christ, a photograph of a crucifix submerged in urine. The Southeast Center for Contemporary Arts, who also received funding from the NEA, awarded Serrano a $15,000 grant.

In response to the use of NEA grants to funding these projects, Congress created an Independent Commission of constitutional law scholars to review the NEAs grant-making process and make recommendations. Ultimately, Congress adopted the Williams/Coleman Amendment. The Amendment became §954(d)(1), which directs the Chairperson of the NEA, in establishing procedures to judge the artistic merit of grant applications, to “take into consideration general standards of decency and respect for the diverse beliefs and values of the American public.”

Plaintiffs in this case, are four individual performance artists (Individual Artists - Karen Finley, John Fleck, Holy Houghes, and Tim Miller) and the National Association of Artists' Organizations (NAAO). Individual plaintiffs allege that the defendants, the National Endowment for the Arts (NEA) and John E. Frohnmayer (Frohnmayer) NEA chairperson, violated their constitutional rights by wrongly turning down their applications for NEA grants. They sought declaratory and injunctive relief on their constitutional and statutory funding claims, and damages on the Privacy Act claim. In addition, all plaintiffs seek a declaration that the so-called "decency clause" of 20 U.S.C. 954(d), enacted several months after individual plaintiffs' applications were denied, is void for vagueness and violates the First Amendment on its face.

The Supreme Court heard two motions. The first is the defendants' motion for judgment on the pleadings. Defendants challenged that: (1) the NEA's funding decisions are unreviewable because they are committed to agency discretion by law; (2) venue is improper as to the Privacy Act claim; and (3) plaintiffs lack standing to challenge the facial validity of the "decency clause" because they cannot establish the necessary injury. Plaintiffs, in turn, have moved for summary judgment on their facial challenge to the "decency clause."

District Court
The District Court found that the decency clause debased the First Amendment on its face by deceitfully preventing some forms of protected speech and that the clause was vague under the Fifth Amendment. The District Court rejected the NEA’s argument that “decency” and “respect” were implicit and voluntary standards in funding evaluations. Instead, the court stated that the clause represented criteria to determine eligibility for the NEA grants and that an overbroad statute would restrict protected and unprotected speech. The court held that while the government may constitutionally regulate “obscene” speech, the decency clause might repress indecent speech, a form of expression immune from substantial governmental obstruction.

The court also argued that in certain protected areas, such as public education funding, government grants “may not be used to suppress unpopular expression.” Since both academic expression and artistic expression reached the core of a democratic society’s cultural and political vitality, the court found that, similar to education funding, art funding enhanced education neutrality.

US Courts of Appeal
The Ninth Circuit Court of Appeals confirmed the district court’s finding and ruled in Finley’s favor.

Supreme Court Decision
The Supreme Court Overturned the Court of Appeals decision. The Court found that decency does not certainly interfere with the First Amendment right to free expression and it does not violate the Fifth Amendment’s void for vagueness provision. The court found that 20.U.S.C. § 954(d)(1) merely adds factors to the grant-making process. It does not state that all grants should be denied to applications involving indecent or disrespectful artworks. Although the statute does not state how much weight the Advisory Commission should give these factors, the NEA has wide discretion in considering this provision.

Also, the Court stated that in order to succeed, Finley carries the burden of demonstrating that there is a substantial risk that the application of the decency clause will lead to the suppression of speech. However, the Court found that the provision on its face was very clear in that the decency and respect provision is only a consideration; it is not a provision that compels the Chairperson to require decency and respect in every application. Because the very nature of the subject matter is open to different interpretations, the Court determined that in the context of selected artistic subsidies it is not possible at all times for Congress to legislate with clarity and it is difficult to establish a precise criterion when granting subsidies.

Majority Opinion and Dissent
Justice O’Connor wrote the majority opinion, joined by Chief Justice Rehnquist and Justices Stevens, Kennedy, Ginsburg, and Breyer. The meaning of the section 954(d) obligation to take into consideration decency and respect for diverse beliefs and values had been debated throughout the litigation. From the outset, the NEA had argued that it could discharge this obligation simply by ensuring that the membership on the review panels reflected national diversity. Both the district court and the court of appeals, however, decisively rejected this reading. Like the lower courts, Justice Souter’s dissent readily disposed of this reading as inconsistent with the text and legislative history, as well as redundant because another statutory provision already required the Chairperson to consider diversity in selecting the panels. The majority dodged the issue by noting that it need not evaluate the NEA’s interpretation because the statute was constitutional on its face even if construed more broadly.

The majority opinion is remarkably vague with regard to what exactly the statutory language entails. It seems that a panel and the Chairperson could find a particular project indecent and void of respect for diverse beliefs and values and yet still award the grant on the basis of the project’s artistic excellence. The construction would seem to be the most natural reading of the phrase “take into consideration.” As Justice O’Connor noted, “when Congress has in fact intended to affirmatively constrain the NEA’s grant-making authority, it has done so in no uncertain terms”—for example, the prohibition against awarding grants for obscene works. Neither Justice Scalia nor Justice Souter necessarily rejected the Court’s interpretation of the statute. Justice Scalia began his opinion with the comment that “’the operation was a success, but the patient died.’ What such a procedure is to medicine, the Court’s opinion in this case is to the law. It sustains the constitutionality of 20 U.S.C. 954(d)(1) by gutting it.”

From the easily supportable conclusion that “consideration” is not equivalent to per se prohibition, the Court reasoned that the factors to be taken into consideration—“decency” and “respect” for diverse beliefs and values—are not intended to “disallow any particular viewpoints.” The Court noted that the legislation was bipartisan in nature, a compromise position designed to counter proposals to abolish the NEA and seemingly influenced by the Independent Commission’s cautions regarding the use of independently preclusive criteria. Perhaps the Court simply continued the argument that decency and respect are merely two factors in the mix that deserve some consideration.