On June 25, 1998, the U.S. Supreme Court ruled in a near-unanimous decision that Congress can require the National Endowment for the Arts (NEA) to take "decency and respect"¹ into consideration when distributing its grant money. The decision in the case National Endowment for the Arts v. Karen Finley reverses two lower court rulings in California, which held that "government funding does not invariably justify government control of the content of speech."² The lower courts ruled that denying funds for works of art deemed "indecent" by the NEA would be unconstitutional, and specifically violating the First and Fifth Amendments. However, as Justice Sandra Day O’Connor writes in the majority opinion, the reversal of the lower court rulings is valid because content-based restriction on government grants "neither inherently interferes with First Amendment rights nor violates constitutional vagueness principles."³ The law in question, passed in 1990, directed the NEA Chairperson to use considerable discretion in distributing financial grants to promote the arts, and:

At the core of this case is the question of whether the federal government has the freedom to direct the NEA to use limited resources in a subjective manner via a "decency" test.

Republican Senator Jesse Helms (North Carolina) led the effort in passing the 1990 law after criticizing several projects funded by the NEA. In particular, Robert Mapplethorpe’s homoerotic photography and Andres Serrano’s "Piss Christ," a photograph of a crucifix dipped in the artist’s own urine, received staunch criticism from members of Congress. When four performance artists, Karen Finley, John Fleck, Holly Hughes, and Tim Miller, were denied funding under the 1990 law, they sued to have it overturned, and the issue of the constitutionality of the "decency" test arose. The attorney for Karen Finley argued that "what the plaintiffs are claiming is they have the right to be considered fairly for a federal grant and not disadvantaged because of the viewpoint they express with their art."⁵

This article examines the constitutionality of considering decency in subsidizing the arts by referring to Supreme Court precedents, in particular those dealing with restrictions on government funding.

While the Constitution is mainly concerned with preventing the government from restricting certain individual liberties, it does not usually require the government to grant specific entitlements for individuals. This is the idea of negative freedoms and positive liberties, as presented in Isaiah Berlin’s Four Essays on Liberty. The notion of a negative freedom is the "area within which a man can act unobstructed by others,"⁶ meaning the government cannot abridge certain individual freedoms, such as those guaranteed by the First Amendment. Positive liberty is concerned with the question: "Who, or what, is the source of control or interference" if resources necessary to exercise a negative freedom are unavailable.⁷ The Constitution is primarily a charter of negative rather than positive liberties and thus, while the government has relatively little power to restrict freedoms, it has much greater power to deny benefits or entitlements.⁸ Therefore, the Supreme Court has allowed the government in National Endowment for the Arts v. Finley to restrict positive freedoms in making government subsidies based on commonly-held values such as "decency."

The government generally has had substantial discretion in deciding how to distribute subsidies provided by taxpayers. The Supreme Court in 1983 ruled unanimously in Regan v. Taxation With Representation that Congress is not required by the First Amendment to make tax-deductible contributions to a nonprofit organization engaged in tax-deductible lobbying activities.⁹ The Court held that the Internal Revenue Service’s condition of not granting lobbying organizations tax-deductible status passed constitutional muster because it was "content neutral" and did not "discriminate invidiously" against certain viewpoints.¹⁰ In 1988, in Lyng v. International Union, the Court upheld the constitutionality of funding restrictions by denying food stamps to striking workers. "Congress’s judgment not to provide financial support to strikers," the Court argued, does not violate the First Amendment right of free speech nor does it force workers to choose between receiving food stamps or striking.¹¹

Moreover, the Supreme Court, in the 1991 case of Rust v. Sullivan, ruled in a close 5-4 decision that Congress may decide to fund certain programs in the public interest while denying programs not explicitly in the public’s interest.¹² In this case, the Court upheld the constitutionality of a fund that regulated the dissemination of information about abortion as a family planning method through federally funded clinics. The Supreme Court has since maintained its stance that the "First Amendment permits selective financing of those activities the Government ‘believes should be encouraged in the broader public interest.’"¹³

Although the Supreme Court ruled in Regan v. Taxation With Representation, Lyng v. International Union, and Rust v. Sullivan, that the government would not be in violation of the Constitution by restricting subsidies for purposes against a broad public interest, the Court has also ruled in several key decisions that it would be unconstitutional for government to deny funding if such a denial was based on a "desire to curtail expression of a particular point of view."¹⁴ For instance, in the 1987 case Arkansas Writers’ Project, Inc. v. Ragland, the Supreme Court ruled unconstitutional a state law that taxed magazines described as "general-interest", while leaving untouched certain newspapers as well as sports, business, and religious magazines, because it infringed upon the First Amendment by placing tax burdens based on the content of a journal.¹⁵

In addition, the Supreme Court reversed the Circuit Court ruling in Rosenberger v. Rector (1995) that held the University of Virginia had a compelling interest in keeping the separation of church and state by denying student funds to a Christian student newspaper entitled "Wide Awake Productions" (WAP), whose purpose was to offer "a Christian perspective on both personal and community issues especially those relevant to college students at the University of Virginia."¹⁶ The Court overruled this lower court decision, stating such an action by the University was a "denial of the right of free speech and would risk fostering a pervasive bias or hostility to religion, which could undermine the very neutrality the Establishment Clause requires."¹⁷ The ruling assumes the University’s regulation was based solely on a speech-based restriction, specifically Christian speech. As Justice Kennedy noted in the majority opinion of the Court: "The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction."¹⁸ The Supreme Court has attempted to distinguish between restricting funding on the basis of non-majority interest, which the Court generally has ruled constitutional, and on the basis of specific content, which the Court generally has ruled unconstitutional.

Another criterion the Court has used is that if a funding restriction violates a specific freedom held by an individual, the restriction is unconstitutional. For example, in the 1963 landmark decision in Gideon v. Wainwright, the Supreme Court held that an individual’s right to representation by counsel under the Sixth Amendment is infringed upon if an indigent person is to present a defense. As the Court asserted in Gideon:

As a result, all persons accused of a crime who cannot afford adequate representation are provided with one by the government. However, the majority of the Court perceived a distinction between National Endowment for the Arts v. Finley and Gideon, Rosenberger v. Rector, and Arkansas Writers’ Project, Inc. v. Ragland.

The Supreme Court decided 8-1 against Finley; the only dissenting vote came from Justice Souter. Finley’s attorney argued that requiring the NEA to consider decency standards to dictate the allocation of funds "is a paradigmatic example of viewpoint discrimination because it rejects any artistic speech that either fails to respect mainstream values or offends standards of decency."²⁰ Moreover, her attorney asserts that such a restriction would lead to the suppression of free expression, a violation of the First Amendment, because it limits NEA’s ability to grant funds to certain forms of artistic expression.

But as Justice O’Connor writes in the majority opinion, the decency test provision "simply adds ‘considerations’ to the grant-making process; it does not preclude awards to projects that might be deemed ‘indecent’ or ‘disrespectful’… Given the varied interpretations of the ‘decency and respect criteria urged by the parties… it seems unlikely that [the decency test] will significantly compromise First Amendment values."²¹ In other words, Justice O’Connor feels the 1990 provision cannot be compared to Gideon v. Wainwright because the former does not infringe upon the First Amendment as the denial of counsel infringed upon the Sixth Amendment.

Furthermore, Rosenberger v. Rector does not provide an analog to Finley because, while the decision to fund certain works of art is based on competition, the decision to subsidize all student groups except those groups that emphasize religion is blatant discrimination. As the Court argues in Finley, "The NEA’s mandate is to make aesthetic judgments, and the inherently content-based ‘excellence’ threshold for NEA support sets it apart from the subsidy at issue in Rosenberger — which was available to all student organizations that were ‘related to the educational purpose of the University.’"²³ The key point in this argument is that the NEA has a limited amount of resources and already denies the majority of the grant applications it receives, even those that are considered as demonstrating high artistic quality and creativity. In the Court’s opinion, this is no different from denying a high school student a place in the freshman class of a prestigious, highly competitive college that selects its students based on academic merit simply because the number of applicants is higher than the number of available spaces. Only if the college denied a student a place in their school due to religious preference, for example, would that constitute an unconstitutional restriction.

Finley’s attorney also argued that the "decency" test is unconstitutionally vague as set by the First and Fifth Amendments, which protect from arbitrary and discriminatory enforcement of vague standards.²⁴ This is a stronger argument, as the Court admits that "decency" test is vague, acknowledging that if the issue were raised in a criminal statute, it "could raise substantial vagueness concerns."²⁵ However, the Court is confident that:

This suggestion, however, seems contradictory to the mission of NEA. Conforming art to what the NEA deems ‘decent,’ derived mainly from popular opinion, could constitute an attack on the artist and his or her creativity. In this sense, the decency test would discriminate against a specific group of people: artists who are non-conformists. The majority opinion argues that requiring the NEA to consider "decency" standards "merely adds some imprecise considerations to an already subjective selection process."²⁷ The Court’s reasons that since this is an issue of a positive right, where government is acting as a patron, rather than an issue of a negative freedom, in which government acts as a sovereign, "the consequences of imprecision are not constitutionally severe" and thus, the government should have substantial discretion in determining the allocation of funding the arts.²⁸

The High Court’s decision in National Endowment for the Arts v. Finley therefore establishes several precedents, yet still leaves certain questions unanswered. First, this decision reaffirms Rust v. Sullivan by ruling that the government may consider the public’s interest in providing funds for a specific program while denying programs not believed to be in the public interest. As Justice Scalia comments in a concurring opinion, although "general standards of decency and respect for Americans’ beliefs and values must be taken into account… this does not mean that those factors must always be dispositive, but it does mean that they have to be considered."²⁹ Again, the Court is emphasizing that it is only requiring the NEA to consider the standards of decency, but not completely dictating what types of art should be subsidized. Second, this decision reestablishes the Court’s earlier ruling against denying funding based on content or a specific viewpoint as in Rosenberger v. Rector.

The Court leaves the question of "decency" unanswered, however, and it recognizes the vagueness of the law while tolerating it. The real question of "decency" will be determined by those who serve on the council of the National Endowment for the Arts. While this passes constitutional muster, it leaves artists whose works are deemed "indecent" to seek private funding, hope that the NEA will look upon their works without a discriminatory eye or wait until public opinion on the decency of art changes.