Artists ask Supreme Court to throw out decency standard

Tuesday, March 31, 1998

Karen Finley...
Karen Finley

Performance artist Karen Finley says she will be wearing brown today when her battle against arts censorship goes before the Supreme Court.

But it will be a brown dress, she says reassuringly, not the chocolate body covering that first drew attention to her provocative brand of artistry, laced with anger, nudity and profanity, more than a decade ago.

Joined by legions of arts and civil-liberties organizations, Finley and three other controversial artists are challenging a 1990 law that requires the National Endowment for the Arts to consider “standards of decency” when it gives money to artists.

“I can’t believe the Supreme Court is willing to have speech become the propaganda of the state,” says Finley. “That’s what they do in China.”

Just how the Supreme Court will rule in the case is uncertain. The justices generally embrace an expansive view of the First Amendment’s guarantee of freedom of speech. After Congress set another decency standard in 1996—this one barring indecent material from the Internet—the court had little trouble striking it down last year.

But the NEA rule is different in important ways that make it less vulnerable to constitutional attack. The court has been more tolerant of government restrictions on speech when, as with the NEA funding, government is footing the bill for the speech.

“Artists are free to produce whatever works they desire,” says Jay Sekulow of the American Center for Law and Justice, a group affiliated with the Christian right. “But the NEA has the right to pay only for art that reflects its own tastes.”

The dispute has its origins in the public clamor a decade ago over NEA funding for exhibits that included Robert Mapplethorpe’s homoerotic photographs and Andres Serrano’s “Piss Christ,” a photo depicting a crucifix immersed in Serrano’s urine.

“It is an issue of soaking the taxpayer for funding the homosexual pornography of Robert Mapplethorpe,” said conservative Sen. Jesse Helms, R-N.C., in 1989. He also accused Serrano of government-funded “blasphemy.” Congress enacted the decency language as well as a requirement that the NEA consider whether the arts applicant shows “respect for the diverse beliefs and values of the American public.”

Finley and the other artists challenged the law when their applications for NEA funding were turned down. Their lawyer, David Cole of the Center for Constitutional Rights, says the “decency and respect” law had “immediate and widespread chilling effects on the art community.”

Though the NEA’s total grant money is small, it has a “multiplier effect,” Cole says. In 1993, he says, NEA grants of $120 million generated more than $1 billion in matching funds from foundations or private sources. An NEA grant gives something of an imprimatur to an artist that helps generate other income.

“You can’t get away from government support in this country,” says Finley. Once the NEA grant was denied, “I felt blacklisted.” Appearances got canceled and other grant money dried up.

In spite of her renown, Finley still lives frugally with her mother and daughter in Nyack, N.Y. She just began a 900 number, which offers a rambling, bawdy “performance” that changes daily. One recent evening she offered a running commentary on the television channels she surfed through in a Minneapolis motel.

Two lower federal courts struck down the requirement, ruling that it was too vague to enforce and that government may not restrict speech on the basis of its content or viewpoint.

But the Supreme Court has not ruled that definitively in the area of government-funded speech. In 1991′s Rust v. Sullivan, the court said the government could restrict physicians’ speech about abortion in clinics that are federally funded.

But in 1995′s Rosenberger v. Rectors of the University of Virginia–in a case involving a Christian student publication at the state-run university–the court said that government may not exclude particular viewpoints when it is handing out money to a range of other expressions.

Critics of the NEA standard play up the University of Virginia case, because it seems to limit government’s ability to prefer one kind of private speech over another through funding.

Supporters, however, point to the abortion clinic case, arguing that as with the federally funded clinics, government should be entitled to encourage some kinds of speech and discourage others. Noting that the government hands out grants to foster democracy around the world, they argue that it should not also be forced to fund programs promoting fascism or communism.

“If the government could not employ selection criteria that take account of such considerations, it might have little choice but to fund art based on random selection,” says Seth Waxman, the Justice Department’s top lawyer before the court.

The Clinton administration is defending the NEA standard, even though doing so places it at odds with its traditional allies in the arts community. The Justice Department argues that the law does not impose a decency requirement but rather adds decency to the list of “non-dispositive” factors that have to be weighed.

That position is “part of what is so disappointing about this administration’s record on the First Amendment,” says Marjorie Heins of the American Civil Liberties Union. “The government is trying to obscure the law’s plainly ideological thrust.”

The dispute is academic in some ways. In 1996 the NEA was restructured by then-chairwoman Jane Alexander, and, with few exceptions, no longer gives grants to individual artists. It works instead with arts organizations and state arts agencies.

But First Amendment advocates say the battle is still worth fighting because of what might happen if the Supreme Court revives the decency standard.

A brief filed with the Supreme Court by artists and writers including Claes Oldenburg, Jasper Johns, E.L. Doctorow and Arthur Miller offers reproductions of classic art works that might run afoul of a modern-day decency standard, from Michelangelo’s “David” to Rodin’s “The Kiss.” It also includes “America’s Most Wanted Painting,” drawn by artists Vitaly Komar and Alexander Melamid based on a poll of Americans’ art preferences. It is a bland landscape with wild animals and even George Washington thrown in.

“To be eligible for an NEA grant,” says the artists’ lawyer Gloria Phares, “artists would be compelled to make artworks that satisfied some notion of political correctness, instead of simply the best art they can create.”

The case is NEA v. Finley, 97-371.