Freedom of Expression
at the National Endowment for the Arts
An interdisciplinary education project partially
funded by the American Bar Association, Commission on College
and University Legal Studies through the ABA Fund for Justice
754 F.Supp. 774 (C.D.California 1991)
ORDER GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT. Davis,
District Judge: . . . FACTS: The Parties: Plaintiff Bella
Lewitzky Dance Foundation ("Foundation") is a non-profit
corporation which does business as the Lewitzky Dance Company.
The Foundation was incorporated in California in 1968. It creates
and performs modern dance works throughout the United States and
foreign countries. Bella Lewitzky is the Artistic Director of
the company. She has been actively involved in modern dance for
over 50 years. The foundation has been a recipient of NEA grants
since 1972, and in that time has been awarded more than $1,400,000.
The grants, and funds provided by private donors, have been used
by the Foundation to support the Dance Company.
Plaintiff Newport Harbor Art Museum ("Museum") is a
nonprofit corporation founded in 1963 to promote the visual arts.
The Museum maintains a permanent collection and sponsors and presents
temporary exhibitions which are shown at its museum in Newport
Beach and also loaned to other museums around the country. Thomas
H. Neilsen is the President of the Museum and a member of its
board. During the past 18 years the Museum has received fifty
six NEA grants totaling $1,263,020.
Defendants are the National Endowment for the Arts ("NEA")
and its Chairperson, John E. Frohnmayer. The NEA is an independent
agency of the United States. . . . Congress created the NEA to
provide support for the arts. The Chairperson, with the advice
of the National Council on the Arts, is charged with establishing
and carrying out a program of financial support for specific programs,
projects, and productions. . . .
The Grant Process: At all times relevant to this litigation,
the procedure to obtain a grant from the NEA began by the filing
of an application. The application was generally submitted in
the fiscal year prior to the year in which the funding was required.
The applicant was required to describe the project or production
for which the funds would be used, summarize the estimated costs
of the project, specify the total amount requested from the NEA,
and provide data regarding the grantee's overall fiscal activity,
including information about private sources of funding and other
revenues. If approved for a grant, the applicant would then submit
a "Request for Advance or Reimbursement" in order to
obtain any of the proceeds of the award.
On October 23, 1989, Congress amended the statutory framework
within which the NEA operates by enacting Section 304 of the Department
of the Interior and Related Agencies Appropriation Act of 1990
. . . Sec. 304(a) of the Act provides:
None of the funds authorized to be appropriated for the National Endowment for the Arts . . . may be used to promote, disseminate, or produce materials which in the judgment of the National Endowment for the Arts . . . may be considered obscene, including but not limited to, depictions of sadomasochism, homoeroticism, the sexual exploitation of children, or individuals engaged in sex acts and which, when taken as a whole, do not have serious literary, artistic, political or scientific value.
To implement this Congressional directive, the NEA added a certification
requirement to the "Request for Advance or Reimbursement."
The new section of this form required recipients to certify to
compliance with certain "General Terms and Conditions for
Organizational Grant Recipients." Paragraph Two of the Terms
and Conditions contained language drawn directly from Sec. 304(a),
described above. Thus, for any of the grant funds to be released,
the grantee was required to certify in advance that none of the
funds awarded would be used "to promote, disseminate, or
produce materials which in the judgment of the NEA . . . may be
Plaintiffs' Experience With The Grant Process: On January
12, 1989, the Foundation applied to the NEA for a 1990-1991 grant.
The grant was requested for the purpose of providing partial salary
support to the Foundation, and thus assisting the Foundation in
developing new works, upgrading its repertoire, and aiding the
professional development of the Foundation's artists.
After enactment of Sec. 304, the NEA awarded the Foundation a grant of $72,000. The Foundation was notified of the award on January 4, 1990. Accompanying the award letter was a document setting forth terms and conditions applicable to NEA grant recipients ("Terms and Conditions"). As outlined above, this document included the condition derived from Sec. 304(a) in its Paragraph Two. Paragraph Five of the Terms and Conditions stated that "submission of a request for funds constitutes agreement to comply with all terms and conditions."
On May 15, 1990, the Foundation submitted to the NEA a "Request
for Advance or Reimbursement" for partial payment of $15,000.
As noted, the Request for Advance or Reimbursement required the
grantee to certify to compliance with all NEA terms and conditions.
Darlene Neel, the Foundation's company manager, completed the
certification, but crossed out and initialed Paragraph Two of
the Terms and Conditions, indicating the Foundation's refusal
to be bound by that condition.
On May 29, 1990, the Foundation received the $15,000 it had requested.
However, on that same day the Foundation also received a letter
from Julianne Ross Davis, General Counsel to the NEA. This letter
informed the Foundation that none of the terms of the NEA grant
were optional, that the Foundation could not advise the NEA as
to which terms and conditions it did not agree to accept, and
that the Foundation was bound by all of the Terms and Conditions
as stated in the grant award letter if it wished to use the grant
funds awarded to it. In response to Ms. Davis' letter, the Foundation
segregated the $15,000 it had already received. Those funds remain
segregated and unspent. The balance of the Foundation's grant
also remains undistributed.
The Museum's experience in the grant process was substantially
similar. During the 1990 fiscal year, the Museum submitted grant
applications for four projects. The NEA subsequently approved
grants totaling $100,000 for all four projects. However, on May
24, 1990, when faced with the certification process described
above as a prerequisite to obtaining the grant proceeds, the Museum's
Board of Trustees resolved not to comply with Paragraph Two. Because
it refused to make the required certification, the Museum received
no portion of the grants for which it had been approved.
The NEA's Policy Statements: In July, 1990, the NEA issued
and sent to grantees a "Statement of Policy and Guidance
for the Implementation of Section 304." The policy statement
provided, inter alia, that the Terms and Conditions would
continue to contain the language of Sec. 304, and that the NEA
would essentially rely on the standard of Miller v. California
(413 U.S. 15, 1973), as a basis for making determinations regarding
The July, 1990 Statement of Policy also set out "Procedures
for Implementing Section 304." One such procedure provided
that once a grant has been approved, if the NEA had reason to
believe, through NEA sources or otherwise, that the grantee is
violating Sec. 304, the NEA would advise the grantee in writing.
The grantee would then have 30 days within which to submit "written
justifications" of its work, after which time the NEA would
determine whether the project violates Sec. 304. Further, the
Statement of Policy provided that if the NEA did determine that
the project violated Sec. 304, the NEA would recoup the grant
pursuant to its civil and administrative remedial powers. . .
In a Supplemental Statement of Policy, effective September 18, 1990, the NEA stated that "obscenity" for the purposes of Sec. 304 means "the sort of 'patently offensive representations or descriptions of that specific hard core sexual conduct given as examples in Miller v. California.'"
DISCUSSION: Standing: [The Court held that both the Foundation
and the Museum have suffered injury in fact, due to the loss of
grant funds, and that the injury was sufficient to establish that
both have standing to pursue this action.]. . .
Constitutional Violations: 1. Fifth Amendment Due Process
Claims: Plaintiffs contend that the certification they are
required to make contains provisions on the subject of obscenity
that are unconstitutionally vague, and thus violate the Fifth
Amendment Due Process Clause. . . . Plaintiffs argue that unconstitutional
vagueness arises because the determination of obscenity is in
the judgment of the National Endowment for the Arts. Plaintiffs
complain that they are left to speculate about how the NEA will
assess obscenity. In response, the NEA argues that it has taken
the policy position that it will rely on the well established
standard of Miller v. California . . ., when applying the
obscenity ban found in the certification requirement. Further
the NEA contends that the Miller definition cannot be vague
as a matter of law. However, the Court finds that the adoption
of the Miller standard by the NEA does not cure the vagueness
arising from the fact that the obscenity determination has been
left to the judgment of the National Endowment for the Arts.
The NEA's vow to rely on Miller cannot cure the vagueness for two essential reasons. First, the NEA policy statements promising to rely on Miller are not legally binding on the agency. . . . The NEA may change or modify its policy at will.
Second, the NEA cannot provide the procedural safeguards outlined in Miller. In upholding the authority of a state government to pursue prosecutions for disseminating obscene materials, the Supreme Court in Miller focused on three key procedural safeguards. First, there must be a statute specifically defining the sexual conduct the depiction or description of which is forbidden, so that a potential violator has "fair notice" of what he can and cannot do. . . . Second, there must be a full adversarial trial. . . . Third, there must be a jury of citizens applying community standards for obscenity. . . .
Even if the Court were to make the generous assumption that the NEA could satisfy the first two procedural prerequisites, the third safeguard is unobtainable by an administrative agency of the federal government. Simply stated, the NEA is a national-level agency that, by hypothesis, is incapable of applying varying community standards for obscenity. Accordingly, even when the NEA promises to apply Miller, how it will endeavor to do so in a grantee's particular local community is a matter about which grantees may only "speculate[e] at their peril." . . . The NEA has not even attempted, to date, to make any announcement which might suggest how they intend to address this "community standards" issue.
Therefore, the Court finds that the NEA certification requirement is unconstitutionally vague because it leaves the determination of obscenity in the hands of the NEA.
2. The First Amendment Claims: Plaintiffs contend that
the vagueness of the certification requirement, discussed above,
violates the First Amendment as well as the Fifth Amendment because
it creates a chilling effect on speech. . . . The chilling effect
on these two plaintiffs arising from the NEA's vague certification
requirement is unmistakably clear. The creative expression of
the plaintiff Dance Foundation would necessarily be tempered were
it to sign the certification and then take seriously its pledge
not to promote, disseminate, or produce anything that the NEA
in its judgment might find obscene. Similarly, in compiling works
for inclusion in the various exhibits for which it obtained NEA
grants, the plaintiff Museum would have to continually moderate
its selection decisions with a view toward steering clear of what
might strike the NEA as obscene. The court finds that because
the certification requirement includes unconstitutionally vague
provisions, it also violates grantees' First Amendment rights
by causing a chilling effect on their artistic expression.
In addition, the chilling effect caused by the certification provisions is exacerbated by the practical realities of funding in the artistic community. Plainly stated, the NEA occupies a dominant and influential role in the financial affairs of the art world in the United States. Because the NEA provides much of its support with conditions that require matching or co-funding from private sources, the NEA's funding involvement in a project necessarily has a multiplier effect in the competitive market for funding of artistic endeavors. Amicus Theatre Communications Group points out that, "most non-federal funding sources regard the NEA award as an imprimatur that signifies the recipient's artistic merit and value. NEA grants lend prestige and legitimacy to projects and are therefore critical to the ability of artists and companies to attract non-federal funding sources." Grant applicants rely on the NEA well beyond the dollar value of any particular grant. As the NEA has made no showing to the contrary, the Court is inclined to agree. . . .
3. The Subsidy Decision Defense Defendants attempt to supersede
all of the above analysis by arguing that the obscenity ban in
the certification requirement does not violate the First or Fifth
Amendments because "it is nothing more than a governmental
decision not to subsidize the exercise of particular protected
expression." . . . Defendants argue that this case should
be analyzed in accordance with the line of cases which holds that
the government has no constitutional obligation to subsidize an
activity merely because it is constitutionally protected. . .
. In response, the plaintiffs would characterize these cases as
properly analyzed under the line of cases which holds that the
government may not impose an unconstitutional condition on the
exercise of a fundamental right. . . . But the outcome is the
same [under either analysis]. . . . In simple terms, the government
may well be able to put restrictions on who it subsidizes, and
how it subsidizes, but once the government moves to subsidize,
it cannot do so in a manner that carries with it a level of vagueness
that violates the First and Fifth Amendments. . . .
Plaintiffs cannot, and do not, claim any "right" to
an NEA grant. But once the plaintiffs were chosen for grants,
on the basis of artistic merit, the government may not place restrictions
on disbursement of those grants that require grantees to certify
to obscenity provisions that are vague in violation of the Fifth
Amendment, and which correspondingly cause a chilling effect in
violation of the First Amendment. The facts before the Court go
well beyond a simple decision not to subsidize obscene speech.
. . . [T]he Court finds that the certification requirement does,
contrary to the NEA's statements, place an obstacle in the grant
recipient's path to exercise of his constitutional speech rights.
As noted above, the uncontested evidence is that the NEA plays
an extensive role in the financing of the arts. As noted, the
NEA often marks a project or production as worthy of support,
including private support, by its decision to award a grant. Accordingly,
it is evident that certain private funding follows NEA grants.
Therefore, because of the NEA's influential role in funding the
arts in the United States, an artist cannot, as defendants claim,
ignore the vague certification requirement and be no worse off
than if the NEA had not entered the funding business at all. The
NEA's role and influence may mean that if an artist chooses not
to be bound by the NEA's obscenity restriction, he will not be
able to obtain private funding, and therefore, will be worse off
than if he had not applied for an NEA grant at all. This is the
type of obstacle in the path of the exercise of fundamental speech
rights that the constitution will not tolerate.
THEREFORE, for all of the foregoing reasons, the Court GRANTS
summary judgment in favor of the plaintiffs in each action, and
DENIES the defendants' motions for summary judgment. In sum, no
factual matters remain in dispute, plaintiffs have established
constitutional violations on the two substantive grounds discussed,
and the government's defense, that its certification requirement
is merely part of a subsidy decision, is unavailing.
IT IS SO ORDERED.
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Last updated: June 28, 1998