Supreme Court scrutinizes decency in arts-funding fight

Wednesday, April 1, 1998

A year ago, the Supreme Court had little trouble striking down a decency standard imposed by Congress on Internet content.

But now, it appears that another congressionally imposed decency standard, this time on federally funded art, seems to have a better chance of surviving Supreme Court scrutiny.

Based on oral arguments Tuesday in National Endowment for the Arts v. Finley, it is clear that at least some justices see the decency standard as less constitutionally objectionable than the one they rejected in Reno v. ACLU last year.

The key difference, in the eyes of the justices and supporters of the NEA standard: whereas last year’s ban swept broadly to censor private speech on the Internet, the current standard only restricts expression the government is paying for with scarce funds.

“The government doesn’t have to buy Mapplethorpe,” said Justice Antonin Scalia at one point, referring to the late Robert Mapplethorpe. Government funding of an exhibit of Mapplethorpe’s homoerotic photographs triggered passage of the law in 1990.

“I can easily think of instances where it is obviously appropriate to take decency into account,” said Justice Stephen Breyer at another point in the oral argument.

These and other suggestions that the NEA decency standard might survive came most often during the presentation of David Cole of the Center for Constitutional Rights, lawyer for the artists.

Almost immediately Cole invoked the 1995 case Rosenberger v. Rectors of the University of Virginia, in which the justices said that the state-funded university could not discriminate against a Christian student group when handing out money for student activities. That ruling, Cole argued, means that “government subsidies must be viewpoint-neutral.”

But several justices knocked down the parallel between Rosenberger and the current case. “Rosenberger is quite different,” said Chief Justice William Rehnquist. The University of Virginia grants were meant to go to all student activities, he said. “Here, the government doesn’t say that everybody gets the money. There is some selectivity.”

Justice Ruth Bader Ginsburg added, “there is a difference between student activity funds and this highly selective [NEA] program.”

Cole countered that “scarcity is not a justification for viewpoint discrimination.” He also said the outcome in Rosenberger would not have been any different if the university only funded a few student activities. Scalia said he was not as sure as Cole about that result.

While the justices were critical of Cole’s arguments, they also seemed skeptical of some of the comments of Solicitor General Waxman, who defended the NEA rule. Waxman recalled that he had also argued in favor of the Internet ban, which he said was the result of hasty congressional action.

By contrast, he said, the NEA standard was the result of lengthy debate and compromise and was far less restrictive than other proposals that were debated.

The law, Waxman said, was a “fairly innocuous amendment” aimed only at adding decency to the mix of factors the agency could consider in giving out arts grants. The goal of the standard, he said, was met when the NEA added more diverse members of the community to the boards that reviewed arts applications.

“You’ll have a hard time convincing us the statute is meaningless,” said Justice John Paul Stevens. As an example, Stevens suggested it was likely that Andres Serrano, the controversial artist who depicted Christ on crucifix immersed in the artist’s urine, would have less of a chance of winning an NEA grant after the law passed than before.

Waxman denied there would be any difference, but Stevens seemed to remain dubious.

Justices Ginsburg and Anthony Kennedy also suggested the law had more meaning than its relatively benign words would indicate. “The message is, ‘don’t fund Serrano or Mapplethorpe,’” said Ginsburg.

Waxman was on safer ground when he suggested that the law was only adding a factor to an already subjective process. “This is an area where government decision-makers would be expected to make esthetic judgments,” he told the court.

The best hope of the opponents of the law may be that the case gets dismissed, which would leave intact two lower court rulings striking down the law.

Several justices saw procedural flaws in the case, including the fact that the artists challenged the law before their grant applications under it had been denied.

Some also seemed to think that the lower courts had based their rulings on an interpretation of the law that the government was not espousing.

In addition, though it did not come up in the arguments, the NEA has changed its funding programs. With few exceptions, it no longer gives grants to individual artists, working instead with state arts agencies and private arts organizations.

A decision in the case could come anytime before the end of the court term in late June or early July.