“Decency clause” still haunts the NEA Essay

Published: 2021-07-02 19:50:04
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We have been engaged over the last four years, since the emergence of Robert Mapplethorpe and Andres Serrano as apparent threats to the Republic, in an extended battle, both in the Congress and in the Executive Branch, over the development of standards designed to contain or scourge dangerous or subversive ideas from arts projects supported by the government. We are all aware of the repeated attempts by Senator Helms, the Robespierre of American cultural affairs, to impose content restrictions on federal funding in the arts.
By and large these restrictions have been beaten back in Congress, with the current exception of the so-called “decency clause,” passed in November 1990, which provided that grant applications to the National Endowment for the Arts are to be judged “taking in consideration general standards of decency and respect for the diverse beliefs and values of the American public.” That standard was challenged in a case involving Karen Finley, Holly Hughes, John Fleck and Tim Miller. The case had two major elements. The first, which has been recently settled, alleged that the NEA denied grants to these artists on political grounds, not on the grounds of artistic merit. And there has been some clear evidence of the fact that NEA chairman John Frohnmayer nixed these applications on political grounds, with the support of the President.
That part of the case recently was settled with a $250,000 payment by the government; $50,000 of that amount went to compensate the artists for their denied grants and invasion of their privacy.
Is it content or not?
The other part of the Finley case, which is still pending, involves the decency clause. Notwithstanding then-chairman Frohnmayer’s assertion that he was not going to enforce the decency clause, a federal district court in California proceeded to consider whether the clause on its face was consistent with the First Amendment. In a strong and stirring reaffirmation of our basic principles of free expression, the court said:
The right of artists to challenge conventional wisdom and values is a cornerstone of artistic and academic freedom… Therefore, the court holds that government funding of the arts is subject to the constraints of the First Amendment.
One can hope that the debate against content restrictions will be much more contained in the future. President Clinton came out strongly against content restrictions during his campaign. He has reaffirmed, in the current reauthorization cycle for the NEA, his opposition to content restrictions. Nevertheless, he is not asking Congress to delete the decency provision in the NEA statute, notwithstanding the fact that it has been declared unconstitutional by the District Court. This would have the obvious benefit of essentially mooting the decency debate. In an effort to scotch any further debate on content restrictions, to avoid a political battle, his people have said on the Hill that the decency restriction simply isn’t a content restriction, as implemented by the NEA.
What then is left on the constitutional front? Since the government is the patron, why can’t it promulgate the rules as to who is going to get the money? After all, no artist is being denied the right to produce controversial or blasphemous art. One simply can’t do it on a federal stipend. Art critic Hilton Kramer and his acolytes take that position.
This issue is now focused on the federal appellate courts in the Finley appeal. It has the most profound implications to the artistic community.
The central issue evolves from the Supreme Court’s decision in Rust vs. Sullivan, which was the “abortion gag rule” case. There, the Supreme Court held in a tight five-to-four decision that it was constitutional for the government, as part of its program to support family planning clinics, to insist that doctors not advise women about an abortion option. The theory of that decision was that the government could define a federal program in any way that it wants; here, it had established a program that would provide adoption advice or birth advice, but excluded abortion advice from the scope of the program.
The Supreme Court decision created havoc throughout the university, scientific, library, foundation, research, arts and humanities communities. It laid out a blueprint for those who want to use federal funding as a weapon to limit discussion of controversial issues.
The government is speaking
Thus, one could simply define a federal arts program as one that deals with non-blasphemous art, and determine that a proposal for a blasphemous picture–say, Christ with a needle in His arm–was outside the program and thus nonfundable.
One’s worst fears were realized in the Bush Administration. A senior Bush Justice Department official told Congress that when government funds are involved, “the government itself is speaking” and “may constitutionally determine what is to be said.”
Then, in the decency challenge in the Finley case described above, the Bush Justice Department advanced the Rust decision as a rationale to deny federal funding. It argued that since the federal government was funding the art, under Rust it could deny grant applications on political grounds, on decency grounds or any other grounds.
The District Court squarely rejected the Rust rationale.
So far so good. However, the government last year filed a notice of appeal to take Judge Tashima’s opinion up to the Court of Appeals. Enter President Clinton. Amazingly, the initial brief filed by the Clinton Justice Department echoed the rationale advanced by the Reagan and Bush Justice Departments. The brief, written by Bush holdovers, took the Rust rationale and applied it, without compromise, to arts funding. It said “a straightforward application of the general rule in Rust means that the government can limit its subsidies to art projects that are not indecent.”
If the position set forth in the initial Clinton Justice Department brief is right, then Far Right opponents of the NEA will be able to argue for every conceivable restriction–rejecting arts funding on grounds that art is un-American, blasphemous, anti-Christian or rejects family values.
A transition snafu
This appears, we fervently hope, just a transition snafu. This first brief was filed at a time when there were virtually no new appointees serving in the Justice Department and, amazingly, those that were there apparently had no sensitivity to the explosiveness to this issue–the Clinton Administration’s first statement on constitutional restrictions on the arts.
Not surprisingly, the entire arts community, as well as all of the other communities that would be affected by this decision, erupted. An amicus brief with more than 60 signatories–ranging from National Public Radio and PBS, to the Museum of Modern Art, to Actors’ Equity, the Association of American Publishers and Theatre Communications Group–recently urged the Court of Appeals to reject the Justice Department position.
I believe that the Administration found itself genuinely abashed that it was taking a position in the litigation that seems totally inconsistent with its stated opposition to content restrictions.
We have now seen the government’s reply brief in Finley, and it has some good news and some disappointing news.
First, we are disappointed that the government is continuing in its reply brief to press the position that the decency clause is constitutional. We think that this position is based on a misreading of congressional intent; the District Court was correct in evaluating the decency provision as a content standard and finding it unconstitutional.
As far as the Justice Department position on Rust v. Sullivan, one can be pleased that the department has attempted to clarify some quite troubling statements in its initial brief. The department says that it wants to make clear that it is not calling for an extension of the Rust decision to apply in the arts funding context here. Given that position, the potentially contradictory statements in the earlier brief should now be inoperative. We take the Justice Department at its word that it is not intended to extend Rust to this situation and we trust that will be their clear position at oral argument in this matter.
Although the government’s reply brief claims that the arts community “misunderstood” the thrust of its earlier brief, in fact there was no misunderstanding. That prior brief quite clearly said that the Rust doctrine would constitutionally shelter administrative decisions to limit NEA grants only to projects that are “decent.” There was no mistake at all. In fact, the Justice Department appears to have beat a strategic, and proper, retreat. However, the Lord loves a repentant sinner, whatever the rationale.

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