Statements by the Artists/Respondents

after Oral Arguments March 31, 1998

National Endowment for the Arts v. Finley

Docket Number: 97-371

Tim Miller



I am back from my day in court, the SUPREME COURT that is. It was a crazy journey to fly from LA to DC for only two days to be at the oral argument for the last driblets of the NEA 4 case, but I am glad that I made the effort and schlepped to see the spectacle of the Supremes finally taking on the Culture War. It has been almost eight years since President Bush made sure that his lackey at the NEA John Frohnmayer overturned the unanimously recommended solo performer grants to me, Karen Finley, John Fleck and Holly Hughes because of the content of our work. And guess what? Three of the four of us were queer! What a surprise! The government had settled most of our case long ago and given us the amount of our grants in damages because they knew they would lose in court. However, a cool 9th Federal Circuit Judge named Tashima had thrown out the notion of "standards of decency" as unconstitutional. This was what the Clinton Administration was now appealing. Thanks a lot, Bill!

I took a late flight to DC, spent the night at my brother's house in McLean, VA around the corner from Ken Starr's house, and was woken up the next morning at 6:30 AM by my two fabulous nephews bouncing up and down on my bed saying "Uncle Tim! Uncle Tim!" (Interesting to have my adventure at the Supreme Court as a queer artist begin in the lap of the heterosexual family unit! So noisy! So early! So cute my nephews are!) This was the equivalent of 3:30 AM LA time, so I was not at my prettiest as the boys pummeled me with pillows and begged me to play Star Wars with them. I managed to coffee up without doing my Darth Vader impression and make the morning commute with my brother to Arlington where I hopped on the Metro. For once in my life I am early for something! I meet my great friend photographer Dona McAdams at Union Station and we stroll down to the court. The camera piranhas are already gathered looking for blood in the water. As if we are going top a trendy new club we skirt the long line because I know we are on a list with the US Marshall. I walk up the long steep marble stairs of the Supreme Court and all at once I feel like I am in a "Sword and Sandals" epic movie from the 50's! Dona and I go through many layers of security as we run into Karen Finley and Holly Hughes and her cute girlfriend Esther Newton who are also waiting in line. Other familiar faces from the last years of this controversy: ACLU lawyers, journalists. Willem Dafoe and other Wooster Group folk. For a moment it feels strangely like a High School reunion to me.

Finally we get in and take our seats. I am sitting next to a woman from the NEA who seems to think we should be buddies even though we are on opposite sides in this case and in spite of the fact that I happen to believe it is shameful that not a single one of these NEA bureaucrats ever resigned in protest. Dona is on my right and Karen next to her; Holly and Esther further down. The room is high and pillared with big faggy swags of bordello-red fabric between. (Justice Souter's decorating tips, I imagine!) The tall ceiling is covered with the usual marble bas-reliefs of humpy workers and wise men passing judgement in the most heroic possible manner. Directly above where the Supreme Court Justices sit is a marble carving of two men with really impressive abdominals sitting in thrones side by side. One is bearded (Steve Reeves as Hercules) the other smooth shaven, boyish but built (Rod Jackson before the divorce). These carvings will be the perfect backdrop for the day in that not too distant (I hope) future when this Court will finally pass judgment on Lesbian and Gay marriage. I would like to be there on that day! Maybe they'll carve some new figures of a couple of dykes tying the knot!

Oyez! Oyez! Oyez! The Marshall calls out as the judges come in. The Big Daddies (even though two are women) swoosh through the curtains and dramatically enter the court. Every disciplinary visit I ever made to the Principal's office in elementary school comes back to me as the Justices take their seats. Once in 4th Grade Principal Lambas made me fill a Dixie cup up with my own spit in his office after I had spit on another boy in my class. This was Principal Lambas' idea of a just punishment. It takes a very long time to fill a big Dixie cup with your own saliva. This was what I remembered at the Supreme Court took their seats.

The oral (was this why I remembered that afternoon in Principal Lambas' office?) arguments begin. They earlier had distributed to each of us a pamphlet which instructs us "How to Behave at an Oral Argument" so I now knew that under no circumstances should I stand up, drop my trousers, and show the Supreme Court my ass. The proceedings begin. The Justices, who rock a lot in their comfy recliner chairs, seem to me to be quite surly with the Solicitor General (Seth Waxman) presenting the Government's case. I start to think the Court is leaning our way. The Solicitor General tries to pitch that the "standards of decency" language is not really censoring speech. "We don't think there is a any constitutional problem here". Justice Kennedy seemed to reject this and sensibly responds that all art inevitable carries with it "viewpoint" and is by nature vulnerable to such curtailment by vague notions of "decency". Clarence Thomas, as usual, says nothing throughout all the proceedings.

Our lawyer David Cole gets up and I think does very well, though the Justices are on his butt too and will hardly let him finish a sentence. The Court seems annoyed that they have to deal with this matter. David boldly spins the argument that the speech of artists needs to be protected by the same standard of freedom of speech even when the government has supported it with a grant. The decency rule "singles out art which has a nonconforming or disrespectful viewpoint. Government can't impose an ideological screen " without abridging the 1st Amendment, David said. The Justices seemed skeptical of this notion or that any "Chilling Effect" had really happened on account of this language. (You'll have to read the stuff in the papers for more details.)

Time's up! Suddenly the oral argument is argumentative no more and is done! It had taken an hour. After eight years of drama and hate mail and blabbing and death threats and demonstrations it all ended up with the Supreme Court spending an hour on this subject. I felt quite dazed. We were ushered out and the next case was already on. Walking back down the marble stairs, which now felt a little more like I was leaving Principal Lambas' office than the Forum in Rome in the movie Ben-Hur, Holly, Karen and I made our way to a garden of microphones for the press conference. I was dreading having to say something. The part of me that is Mr. Sound Bite was nowhere to be found. It all felt too overwhelming and on the spot.

We lined up. Lawyer David Cole was articulate and upbeat. Karen said she felt like she had been in an abusive relationship with Jesse Helms and that he had been sexually harassing her at her workplace. Holly made the crucial point that the reason we even were at the Supreme Court was because of yet another betrayal by Clinton who could have let the lower court decision stand when it determined that "general standards of decency" was an unconstitutional criterion for the funding of the arts. I tried to make the point that younger artists all over the country have received the signal loud and clear that work about sexuality, politics or gender gets in a mess of trouble. I brought up my students at Cal State L.A. who struggle through all this censoring shit to try to claim their expression. I wanted to remember that it is the emerging artists that are especially getting fucked with by this "chilling" limiting of creative speech. That felt like a sensible message to speak to the cameras in front of the Court. The moment I finished talking I wished that I had been more eloquent or quotable, but it was the best I could manage amid my jet lag and not-strong-enough morning coffee.

We walked across the street for a little reception and post-game huddle. I felt really tired. My usual excitement about Democracy in Action (Civics class had been one of my favorites!) was pretty depleted at this point. Fittingly, as the reception wound down, a bunch of us went and had lunch at the restaurant "America" in Union Station to debrief the day's events. I ate my undercooked turkey burger surrounded by hip retro murals of the space program from the 60's. General thoughts amid the astronauts doing their Gemini program space walks: I think the court will probably kick the case out and not make decision. I am pissed off that Clinton chose to betray the lesbian and gay community yet again by challenging the Ninth Circuit's decision. I am convinced that though this business with the Supreme Court is a big battle, there are a zillion little struggles that are really where my work needs to be done:

I will continue to dismantle that censor in my head that got put in there through a thousand experiences in my life...including that time when Principal Lambas made me fill up a Dixie cup with my own spit. Clearly Principal Lambas had the imagination of a performance artist! I will make sure we keep Highways Performance Space (the arts center in LA that I am Artistic Director of and the most attacked cultural organization in all this fuss) open and thriving and training a bunch of new and fierce dyke and fag artists. This goes for all the other arts centers in the country that have been hassled, especially Out North in Anchorage who are currently under the gun in Alaska. I will keep encouraging my students at Cal State LA (and everywhere else I teach) to do our wildest and most truthful work including the ensemble piece I have made with my students called I AM NOT YOU which we showed at Highways the night before I flew to DC. I saw my gang of students sift through their own issues of identity and come up with powerful and specific statements of self. Their naked skin and their history and their voices alive in the room! I will continue to dig deep into my life as a gay citizen and try to figure out what the stories are that I need to bring forward as an artist for myself and for my queerest of communities.

Your Humble Court Reporter signing off,

Tim Miller

Tim Miller is a solo performer whose full-evening theater works have been presented all over the world. He is Artistic Director of Highways Performance Space in Santa Monica and teaches at Cal State LA in the Department of Theater Arts and Dance. His book Shirts & Skin is currently available from Alyson Publications.

Copyright 1998 Tim Miller

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Last updated: April 17, 1998