'Decency' Can Be a Standard for Artists Seeking Federal Grants

Yesterday's decision says Congress's rules don't violate free-speech rights.

A decade-long, emotionally charged question over art and its expression ended with a whimper yesterday, as the US Supreme Court ruled that the National Endowment for the Arts can fund artists pretty much as it has been.

The high court, in a mild and moderate opinion written by Justice Sandra Day O'Connor, ruled that Congress can set decency standards for federal art grants bestowed by the NEA, and that such standards do not violate the free-speech rights of artists.

But considering that a sharp overturning of free-speech rights could have led to a dismantling of the NEA, the 8-to-1 ruling is perhaps a minor victory for artists - and a minor setback for conservatives who had hoped the high court would force the NEA to crack down further on what they see as indecent art.

"In this ruling, the NEA can take the position that it will continue to do what it is doing," argues Mark Tushnet of the Georgetown University Law School, "which really means there won't be much practical impact on what artists are likely to create."

Values clash

The issue of whether the NEA must strictly apply regulations called "decency standards" in handing out federal arts grants has underscored a hot culture clash between the family-values movement and defenders of the avante garde.

Yesterday's case was brought by four performance artists who oppose any restrictions on the free expression of art, whether funded by the government or not.

Justice O'Connor argued that "so long as legislation does not infringe on other constitutionally protected rights, Congress has wide latitude to set spending priorities." Yet in a clear nod to the arts community and the NEA, she also notes immediately that, "Throughout the NEA's history, only a handful of the agency's roughly 100,000 awards have generated formal complaints...."

Currently, the NEA chairman appoints grantmaking panel members who the chairman feels will have an implicit regard for community standards. Conservatives want a much more rigorous screening of art.

In an acerbic concurrence that reads almost like a dissent, conservative Justice Antonin Scalia says the NEA has "distorted" the meaning and intent of the decency standards as originally conceived by conservatives on Capitol Hill. "The operation was a success but the patient died," Justice Scalia wrote of the court's opinion, adding that the ruling "sustains the constitutionality of the law by gutting it."

Broadly, the arts battle was part of the simmering culture wars of the 1980s, as conservatives began to question whether Washington should fund art they considered grotesque, irreligious, or unpatriotic. The battle broke out full-scale during a 1989 touring exhibit of the late Robert Mapplethorpe's photographs. Included with dozens of noncontroversial pieces of art were several photos of naked children and homoerotic imagery.

For weeks, opinion pages and talk shows around the country resounded with debate. Renowned artists such as Arthur Miller and Jasper Johns fought in print with senators such as Jesse Helms (R) of North Carolina and Alfonse D'Amato (R) of New York.

Conservatives argued that artists could draw or paint or perform whatever they wanted in private, but that public money requires standards of decency - just as it does in TV or radio broadcasts.

Unfree expression?

The arts community saw the attack as another in a centuries-long attempt by moralists or the forces of orthodoxy to quash free expression. They pointed out that the famous "toilet" of Marcel Duchamp at a turn-of-the-century Paris exhibit, which is considered by many to herald the birth of modern art, received the same treatment.

To quell the troubled waters, Congress passed a 1990 law telling the NEA to adhere to "general standards of decency." After much Sturm und Drang, including the firing of NEA chief John Frohmeyer, these standards became NEA policy. But two lower courts threw out the requirement as "too vague."

One of the courts, the federal Ninth Circuit Court of Appeals based in San Francisco, said Congress's law constituted a broad form of discrimination whose standard was based on nothing more than one's own "viewpoint." Yesterday's opinion overturned the lower courts, stating, as the O'Connor opinion read, that the decency-standards law neither "interferes with First Amendment rights nor violates constitutional vagueness principles."

The major question leading up to the ruling was how broadly the court would view the case. In the end, it addressed the more narrow issue of Congress's role in overseeing federal spending on the arts, rather than boldly striking a new direction on the issue of censorship and free speech.

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