This case brought into focus the constitutional problem of government funding for private speech. The National Endowment for the Arts (NEA) was created in 1965 to disburse government grants in support of a climate of freedom of thought, artistic excellence, and public appreciation for the arts. In 1989, two exhibitions that were indirectly supported by NEA grants led to public outcry: Andres Serrano’s photograph ‘‘Piss Christ,’’ which depicted a crucifix immersed in urine, and Robert Mapplethorpe’s exhibition ‘‘The Perfect Moment,’’ which included many homoerotic photographs. Congress reacted with U.S.C. Section 954(d)(1), requiring the chair of the NEA to ‘‘take into consideration general standards of decency and respect for the diverse beliefs and values of the American people.’’ Finley was one of four artists who had been judged worthy of a grant by the NEA’s initial review panels, but who were later rejected during the political controversy over objectionable art but prior to the enactment of Section 954(d)(1). The artists objected to Section 954(d)(1) on its face, alleging (1) that it introduced viewpoint-based discrimination into the grant-making process, in violation of the First Amendment, and (2) that it was void for vagueness. The Supreme Court held that Section 954(d)(1) was constitutional.
Writing for the majority, Justice O’Connor found the artists’ argument inadequate to overturn the statute on its face. She noted that the facial challenge was traditionally ‘‘strong medicine,’’ reserved for extreme cases of congressional misstep. Ordinarily, the Court refrains from overturning a statute without an objection to the statute as applied to a specific case. She found that part of the NEA’s mission is to educate the public, and that questions of ‘‘educational suitability’’ are a legitimate reason to consider decency in making government grants (citing Board of Education, Island Trees Union Free School District No. 26 v. Pico ). Furthermore, she found that Section 954(d)(1), by itself, was unlikely to introduce viewpoint- based discrimination to the grant-making process because such discrimination could just as easily be veiled under the guise of ‘‘artistic excellence.’’ Furthermore, she noted that Section 954(d)(1) did not require the NEA to deny grants based on standards of decency, only exhorted the chair to take decency into consideration.
The artists cited Rosenberger v. Rector and Visitors of University of Virginia (1995), where the Court held that by creating a Student Activities Fund, a university had created a ‘‘limited public forum,’’ from which it could not exclude students based on viewpoint. Thus, it was impermissible for the university to deny students access to the Student Activities Fund to aid them in creating a Christian student newspaper. The artists argued that the government had created a limited public forum by establishing the NEA and could not exclude based on viewpoint. However, O’Connor distinguished this case from Rosenberger by noting the competitive nature of NEA grants.
Justice O’Connor concluded by noting that if the NEA actually used Section 954(d)(1), in practice, to engage in viewpoint-based discrimination, that the outcome might well have been different. She noted that the First Amendment does have an effect on the government as a patron of speech, but its force was considerably less than when the government acted as a regulator of speech.
Justice Scalia, joined by Justice Thomas, concurred with the result but faulted the majority for wishywashiness on the issue of whether 954(d)(1) was constitutional. In Scalia’s view, the government can discriminate all it wants in disbursing funds, because by patronizing one view over another the government is not ‘‘abridging’’ speech. In dissent, Justice Ginsburg found that the constitutional question was whether ‘‘the government has adopted a regulation of speech because of disagreement with the message it conveys’’ (citing Ward v. Rock Against Racism ). In this case, he found that government was motivated to discourage speech that was not respectful of common standards of decency, which was a perfect example of viewpointbased discrimination. Ginsburg believed that the fact that ‘‘standards of decency’’ is just a consideration is not redemptive. If the statute said, ‘‘taking into account whether the artist is a communist,’’ she believed the Court would have ruled differently.
It is interesting that both Scalia and Ginsburg agreed that the purpose of the statute was to disfavor art like Serrano’s and Mapplethorpe’s, but that Scalia thought that was perfectly fine while Ginsburg did not.
CHRISTOPHER D. KING
References and Further Reading
Cases and Statutes Cited
See also Book Banning and Book Removals; Content- Based Regulation of Speech; Content-Neutral Regulation of Speech; Dworkin, Andrea; Freedom of Speech: Modern Period (1917–Present); Government Funding of Speech; Museums and Expression; Obscenity; Symbolic Speech; Traditional Public Forums