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 and Education

795 F.Supp. 1457 (C.D.Cal. 1992)

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Plaintiffs are four individual performance artists ("individual plaintiffs") and the National Association of Artists' Organizations ("NAAO"). Individual plaintiffs allege that defendants the National Endowment for the Arts ("NEA") and John E. Frohnmayer ("Frohnmayer"), NEA chairperson, violated their constitutional and statutory rights by improperly denying their applications for NEA grants and by releasing to the public information from their application files. They seek declaratory and injunctive relief on their constitutional and statutory funding claims, and damages on the Privacy Act claim. In addition, all plaintiffs seek a declaration that the so-called "decency clause" of 20 U.S.C. 954(d), enacted several months after individual plaintiffs' applications were denied, is void for vagueness and violates the First Amendment on its face.

Before the court are two motions. The first is defendants' motion for judgment on the pleadings. Defendants content that: (1) the NEA's funding decisions are unreviewable because they are committed to agency discretion by law; (2) venue is improper as to the Privacy Act claim; and (3) plaintiffs lack standing to challenge the facial validity of the "decency clause" because they cannot establish the necessary injury. Plaintiffs, in turn, have moved for summary judgment on their facial challenge to the "decency clause."


Statutory framework
The NEA was created by Congress in 1965 as part of the National Foundation on the Arts and the Humanities (the "Foundation"). In establishing the Foundation, Congress found that "it is necessary and appropriate for the federal government to help create and sustain not only a climate encouraging freedom of thought, imagination and inquiry but also the material conditions facilitating the release of . . . creative talent." 20 U.S.C. 952(5) It was the intent of congress to encourage "free inquiry and expression," and to insure that "conformity for its own sake is not to be encouraged" and that "no undue preference should be given to any particular style or school of thought or expression." 111 Cong. Rec. 13, 108 (1965).

One of the three components of the Foundation, the NEA is authorized to administer a program of grants-in-aid to individuals of exceptional talent engaged in or concerned with the arts. 20 U.S.C. 954(c). the NEA acts through its Chairperson and a 26-member National Council on the Arts (the "council"), all of whom are appointed by the President, by and with the advice and consent of the Senate. 20 U.S.C. 954(b)(1) & 955(b). The Chairperson is the ultimate decision maker; however, the Chairperson is prohibited from approving or disapproving any grant application until he or she has received the recommendation of the Council on such application. 20 U.S.C. 955(f). The Council, in turn, is required to meet at the call of the Chairperson, and 14 members of the Council constitute a quorum. 20 U.S.C. 955(d). The Chairperson is also authorized to utilize panels of experts to review funding applications. 20 U.S.C. 959(a)(4).
On November 5, 1990, approximately four months after individual plaintiffs' applications were denied, in the 1990 Amendments, congress amended the NEA's governing statute in several respects. Among the changes was the addition of a provision requiring that "general standards of decency and respect for the diverse beliefs and values of the American public" be taken into consideration in making funding determinations. 1990 Amendments, Pub.L. No. 101-512, 103(b), 104 Stat. 1963, codified at 20 U.S.C. 954(d).

Political context of the denials

At least since 1989 and continuing through to the present, the NEA has been the target of congressional critics and private interest groups for funding works , inter alia, that express women's anger over male dominance in the realm of sexuality or which endorse equal legitimacy for homosexual and heterosexual practice. For example, in the Spring of 1989, congressional critics assailed the NEA for funding two controversial projects: a photography exhibit by Robert Mapplethorpe, which included homoerotic images, and an exhibit by Andres Serrano entitled "Piss Christ," which was criticized as sacrilegious. . . . These two exhibits were frequently cited by members of Congress in debates during the Summer of 1989 over budget allocations for the NEA. . . .

These funding debates were followed by a series of demands by certain members of congress for information on NEA-funded artists whose work addressed political and sexual issues. In one instance, a senator requested that the General Accounting Office investigate apparent violations of Sec. 304 of the FY 1990 NEA appropriations bill. [Court footnote: . . . The NEA's administration of Sec. 304 was struck down in Bella Lewitzky Dance Found. V. Frohnmayer. , 954 F.Supp. 774 (C.D.Cal. 1991)]The senator listed among such "apparent violations" three literature fellowships awarded to lesbian writers who address issues of sexuality in their work; two art exhibits, one of which incorporated images depicting homosexuality and the other of which included depictions of genital organs; and appearances by plaintiff Finley at two NEA-funded theaters.

In addition, private special interest groups ran advertisements and circulated flyers condemning NEA funding of sexually-related works and in one case called for defunding of the NEA. In response to criticism by the American Family Association of one art exhibit, Frohnmayer wrote in April 1990 that its images 'were disgusting and offensive to me, and undoubtedly to a large majority of the population. I would hope that with the procedures I am implementing at the arts endowment, images such as these would not again be funded."

Denial of plaintiffs' applications and violations of the Privacy Act

In the midst of this political maelstrom, individual plaintiffs each applied for funding under the Performance Artists Program. These applications were among the 90 applications reviewed by the Performance Artists Program Peer Review Panel (the "Panel"). The Panel unanimously recommended that the individual plaintiffs' applications be funded, along with 14 others in that category.

In early May 1990, Frohnmayer asked the panel to reconsider three of its recommendations, those for plaintiffs Fleck, Hughes and Miller. He stated that reconsideration of Finley's application was unnecessary because two of his close friends had attended a Finley show and had reported to him that it was not obscene. He arranged for an extraordinary Panel meeting by teleconference, in which he personally participated. After reconsidering the three grants, the Panel again unanimously recommended them for funding.

Shortly before the Council met to review recommended NEA grants and fellowships, a syndicated column published in Washington, D.C., reported that plaintiff Finley had been recommended to receive a grant and criticized the content of her work. The article contained a quotation from Finley's funding application, which the NEA admittedly released to the press. The column also stated that Frohnmayer had been "advised" by "friends" of the NEA to veto several grants, including Finley's, to "ease President Bush's deepening troubles with conservatives on his suspect cultural agenda."

Although the council convened in May and acted on other categories of recommended grants, it deferred consideration of the performance Artists Program fellowships until its august meeting, pending receipt of further information. In June 1990, Frohnmayer polled members of the Council by individual telephone calls regarding the Performance Artists Program fellowships. On June 28, 1990, the NEA advised individual plaintiffs that their applications had been denied.

Subsequent to these denials, a number of newspaper articles published references to or direct quotations from plaintiffs' NEA application files. A number of these articles cite the NEA as the source of this information. None of the individual plaintiffs consented to any of these disclosures.

Plaintiffs' claims

Following notification that their applications had been denied, plaintiffs filed this action. Individual plaintiffs assert that defendants violated their First Amendment rights by denying their applications on impermissible political grounds and by failing to adhere to procedural safeguards mandated by the First Amendment. They also allege that defendants violated their statutory rights under the National Foundation on the Arts and the Humanities Act of 1965, as amended, 20 U.S.C. 954-55, by (a) basing the denials on criteria other than those set forth by statute, and (b) failing to follow the procedures mandated by statute. Individual plaintiffs also allege that defendants violated their rights under the Privacy Act, 5 U.S.C. 552a, by violating the confidentiality of their grant applications.

After Congress amended 20 U.S.C. 9549d) to require that "general standards of decency" be taken into account in evaluating funding applications, the NAAO joined individual plaintiffs in filing an amended complaint, challenging this new provision on Fifth Amendment vagueness and First Amendment grounds.


First Amendment claims

The amended complaint alleges that defendants injured plaintiffs' first Amendment interests by denying their applications because of the content of their past artistic expression and by failing to provide a written statement of reasons for the denial.

Content-based funding denial

Defendants argue that the denial of plaintiffs' grant applications does not constitute injury to plaintiffs' First Amendment interests because the denial is merely a refusal to subsidize plaintiffs' expressive activities - not a barrier to their exercise. However, it is well-established that even though a person has no "right" to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests - especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to "produce a result which [it] could not command directly." . . . such interference with constitutional rights is impermissible. Perry v. Sinderman. , 408 U.S. 593, 597 (1972) . . . .

The Supreme Court recently reaffirmed this rule in Rust v. Sullivan. . . . (1991). There the court stated that the government creates an "unconstitutional condition" when it

place[s] a condition on the recipient of the subsidy rather than on the particular program or service, thus effectively prohibiting the recipient from engaging in the protected conduct outside the scope of the federally funded program. . . .

Defendants correctly argue that denial of a benefit imposes an unconstitutional condition only when the benefit is conditioned on the recipient's surrender of (or is imposed as a penalty for) constitutionally protected activity distinct. from that to be funded by the subsidy. . . . However, defendants' contention that the present case does not fall within this prescription is simply wrong.

The amended complaint alleges that plaintiffs applied for funding in a category designed to underwrite performers' professional growth and development, rather than to fund a specific work or project. Thus, the decision not to grant an application in this category cannot be categorized as a refusal to "subsidize" particular speech because the content of the expression generated through the grants cannot be known in advance. In addition, individual plaintiffs' allege that Frohnmayer requested that the Panel reconsider only three of the four applications, because "two of his close friends had attended a Karen Finley show and had reported to him that it was not obscene." This makes clear that plaintiffs complain that their applications were denies based on the content of their past performances, constituting in effect a penalty for past speech. As such, these allegations are sufficient to state a claim under the First Amendment. . . . Defendants are not entitled to judgment on the pleadings on this claim.

Procedural Safeguards

Individual plaintiffs assert that the procedure used to deny their applications violates the First Amendment because defendants failed to set forth in detail and in writing a statement of reasons for the denials.

In support of this claim, plaintiffs cite Southeastern Promotions, Ltd. V. Conrad. , 420 U.S. 546 (1975), in which the Court imposed a procedural requirement on the government where the government acts to impose a prior restraint. The Court there held that the government may impose a prior restraint on a speaker consistent with the first Amendment only if the government initiates and obtains prompt judicial review in which it bears the burden of establishing that the expression is unprotected. . . .

Southeastern Promotions does not provide support for the imposition of the procedural requirements requested by plaintiffs in this case. Because it is unsupported by any authority, plaintiffs' claim that defendants failed to provide them with a written statement of reasons for the denials does not state a claim under the First Amendment.

Statutory claims

In the Third and Fourth claims, individual plaintiffs allege that defendants violated the NEA's governing statutes and the Administrative Procedure Act ("APA") by (1) relying on political criteria not set forth in 20 U.S.C 954(c), and (2) by failing to comply with the statutory procedures mandated by 20 U.S.C. 955. Defendants move to dismiss these claims on the grounds that funding decisions are unreviewable as actions committed to agency discretion, and that the procedure alleged in the amended complaint complies with statutory requirements.


The APA provides for judicial review of final agency action. 5 U.S.C. 704. However, 704 does not apply where "agency action is committed to agency discretion by law." 5 U.S.C. 701(a)(2). . . The Supreme Court has held that 701(a)(2)

is a very narrow exception. The legislative history of the Administrative Procedure Act indicates that it is applicable in those rare instances where "statutes are drawn in such broad terms that in a given case there is no law to apply.". . .

In other words, "in order for 701(a)(2) to apply, the matter must be one that a court cannot review even to determine whether the agency, exceeding the scope of its broad power, acted unlawfully. .". . ..

The version of 20 U.S.C. 954(c) in effect at the time plaintiffs' applications were denied . . . are sufficient to constitute "law to apply" in this case. For example, it is clear that the NEA would exceed its statutory authority if it were to allocate funds based solely on financial need or the ethnicity of the applicant, with no regard to the criteria listed in the statute. Thus, although the statute does confer the NEA with discretion to select grant recipients, that discretion is not boundless. As the limitations of 954(c) constitute "law to be applied," the 701(a)(2) exemption for action "committed to agency discretion" is inapplicable. . . .

The amended complaint alleges that despite the Panel's unanimous recommendation that individual plaintiffs be awarded fellowships as "individuals of exceptional talent," Frohnmayer denied those fellowships for political reasons, i.e.. , to appease congressional critics. Political expediency is neither an expressed nor implied criterion under the statute for the denial of an NEA grant. Plaintiffs' allegations are sufficient to state a claim under 954(c) and the APA.

Procedural violation

Individual plaintiffs also allege that Frohnmayer's poll of individual Council members for their respective recommendations in the solo Performance theatre category violated the procedure mandated by the statute.

Under 20 U.S.C. 955(f), the Chairperson may not award or deny a grant "until the chairperson has received the recommendation of the Council on such application." In addition, 20 U.S.C. 955(d) provides that, "The Council shall meet at the call of the Chairperson but not less often than twice during each calendar year. Fourteen members of the Council shall constitute a quorum."

Plaintiffs contend that these two provisions, read together, clearly indicate that Congress intended that the Council should act as a collegial body in making recommendations to the Chairperson. In response, defendants argue that the statute contains no requirement "that council members be collected in a single room or on a single telephone conference call when they convey their recommendation" . . .

In this case, congressional intent is clear from the statute itself. First, the use of the words "the Council" rather than "Council members. " indicates that Congress intended the council to act as a body, not an aggregation of individuals, when making recommendations to the Chairperson. Second, the statute provides that the Chairperson may not act on applications until he or she "has received the recommendation of the council." (Emphasis added) The use of the definite article "the," together with the singular noun "recommendation," indicate an intent that the Council will arrive at a single, collective recommendation. A contrary intent would be expressed with language such as "the recommendations of Council members."

Further, if Congress intended that Council members act individually, and not collegially, in fulfilling their obligation, there would have been no need to establish the quorum requirement of 955(d). Defendants' construction of the statute renders the quorum requirement superfluous.

Because congressional intent is clear, the court need not (indeed may not) reach the second question of whether the NEA's construction is permissible.

The APA authorizes the court to set aside agency action taken in violation of statutory procedures. 5 U.S.C. 706(2)(D). Thus, these allegations are sufficient to state a claim upon which relief may be granted.

Privacy Act claim

Individual plaintiffs also allege that the NEA staff released information to the public from their application files in violation of the Privacy Act, 5 U.S.C. 552a. Defendants acknowledge that the NEA was the source of these "leaks," but challenge this claim on the grounds that (1) venue is defective as to two plaintiffs, (2) the Freedom of Information Act ("FOIA") required disclosure of the subject information and therefore immunizes defendants against liability under the Privacy Act, and (3) the information disclosed was already a matter of public record and therefore is not protected by the Privacy Act.


. . . The court holds that in a multi-plaintiff Privacy Act action, if any plaintiff satisfies the venue requirement of 5 U.S.C. 552a(g)(5), the venue requirement is satisfied as to the remaining plaintiffs. Because the statutory venue requirement is satisfied as to the Privacy Act claims of two plaintiffs, venue is proper as to all four individual plaintiffs.

The FOIA defense

Next, defendants argue that the release of information from individual plaintiffs' files is not actionable under the Privacy Act because release is required by FOIA. . . . FOIA . . . contains an internal privacy act of sorts that exempts "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy" from its disclosure requirements. . . . The Supreme Court has construed the . . . exemption broadly to "cover detailed Government records on an individual which can be identified as applying to that individual." . . .
The amended complaint alleges that the NEA released information from individual plaintiffs' application files. Such information clearly "applies to [each of the] particular individual[s]" to which it corresponds, and thus may not be released under FOIA without consideration of the competing interests in personal privacy and public benefit.

Publicly available information

Finally, defendants argue that the information released was already publicly available; therefore, that disclosure cannot violate the Privacy Act. . . . However, case law in this Circuit is contra. . . . Thus, even if it were clear from the face of the amended complaint that the information released was already a matter of public record, in this Circuit, the allegations state a claim for relief under the Privacy.


All plaintiffs move for summary judgment on the Sixth Claim, which alleges that the "decency clause" is impermissibly vague under the Fifth Amendment Due Process Clause and violates the First Amendment on its face. In opposition, defendants argue that (1) all plaintiffs lack standing to challenge this provision; (2) the vagueness challenge fails on the merits because the NEA has implemented a limiting construction of the clause that cures any ambiguity; and (3) as construed by the agency, the provision does not injure any artist's First Amendment interests.


Defendants first argue that plaintiffs do not have standing to challenge 954(d) because (1) allegations of "chill alone" cannot support standing and (2) plaintiffs cannot demonstrate any threatened or actual injury from the challenged provision.

To establish standing, a plaintiff must show that (1) "he personally has suffered some actual or threatened injury" as a result of defendants' actions; (2) the injury "fairly can be traced to the challenged action"; and (3) the injury is "likely to be redressed by a favorable decision." . . .

. . . [D]efendants contend that plaintiffs' allegation of a "chilling effect" is insufficient to establish the required "actual or threatened injury" . . . Individual plaintiffs argue that . . . all individual plaintiffs here have, in the past, been denied grants based on the controversial content of their expression. Also, individual plaintiffs Hughes and Miller applied for and were awarded NEA grants in 1991 under the new standard. Hughes claims that, as a result of the "decency" standard, she believed it necessary to defend her work against charges of indecency and addressed this issue in her funding application rather than elaborating on her work and its goals. Both Hughes and Miller claim that the existence of the "decency" provision circumscribes their artistic freedom because they fear stepping across an invisible line of "decency" which would result in forfeiture of some or all of their 1991 grants and disqualification for future grants.

. . . At a minimum, plaintiffs Hughes and Miller, who have applied for and received funding under the new statute, have standing because they risk forfeiting their grants if they engage in behavior determined by the NEA to be in contravention of the decency provision. These plaintiffs face threatened and actual harm because, in order to retain their grants and to ensure that they are considered for future grants, they must now restrict their expressive conduct, which is otherwise protected by the First Amendment.

The standing of individual plaintiffs Finley and Fleck, who did not apply for grants, is less clear because they allege only that they have forgone their application opportunity out of "fear" that they would be denied funding. However, as Hughes and Miller have met the "injury" prong, it is unnecessary to the resolution of the substantive claim that the court determine the standing of the remaining individual plaintiffs. . . .

In addition, the NAAO has standing both on its own behalf and as a representative of its members who have applied for grants. First, NAAO's expenditure of resources to advocate against the decency standard and to assist its members in responding to the standard creates a cognizable injury to that organization. . . .

Moreover, NAAO satisfies the requirements for representative standing based on injury to its members. Fist, the director of the NAAO reports that, like Hughes and Miller, some members have received NEA grants under the new standards, but are 'chilled" in the scope of their work and their applications by uncertainty as to how to comply with the decency clause. Second, this suit seeks to protect freedom of artistic expression, an interest germane to NAAO's organizational purpose. Lastly, neither this claim nor the requested relief requires the individual participation of NAAO members. . . .

Statutory Construction

Because the court must avoid deciding a constitutional issue if possible, it is first necessary to determine whether 954(d)(1), as amended, can be construed to avoid conflict with constitutional proscriptions. Defendants advance two possible constructions of the statute which they content avoid constitutional infirmity. Defendants contend (1) that the decency provision does "not impose content restrictions on NEA grant decisions," but "merely implements a method for selecting review panel members" and, alternatively, (2) that "decency" and "respect . . . are factors only to the extent that they are implicit in the assessment of artistic merit."

. . . the initial question is whether congressional intent on the issue is clear. Section 954(d), as amended in 1990, provides that

artistic excellence and artistic merit are the criteria by which applications are judged, taking into consideration. general standards of decency and respect for the diverse beliefs and values of the American public.

20 U.S.C. 954(d)(1) (emphasis added). The plain language of the statute requires that "general standards of decency and respect for the diverse beliefs and values of the American public" be "tak[en] into consideration" in judgment applications.

Thus, it is clear from the language of the statute that "decency" and "respect" for diverse beliefs are factors to be considered in determining "artistic merit," and therefore eligibility for funding.

Even had the statute itself not been clear, neither of defendants' constructions is entitled to deference because both are "manifestly contrary to congressional intent." . . . First, a construction that this clause "merely implements a method for selecting review panel members" cannot be given effect for it would render 20 U.S.C. 959(c), as amended by the same act that added the "decency" provision superfluous. . . . Because 959(c) requires that the composition of Peer Review Panels reflect "wide geographic, ethnic, and minority representation as well as . . . diverse artistic and cultural points of view," a construction of the decency provision as requiring only the diversification of panel membership would render the "decency" clause of 954(d) without legal content.

Second, defendants' alternative construction (i.e., that "decency" and "respect" are factors only to the extent that they are implicit in the assessment of artistic merit) is also manifestly contrary to congressional intent. It defies logic to argue that explicit additions to the "artistic merit" standard are merely implicit in the assessment of artistic merit. Had congress believed that "decency" and "respect for diverse views" were naturally embedded in the concept of "artistic merit," there would be no need to elaborate on that standard.


The Fifth Amendment due process clause requires that a statute be sufficiently clearly defined so as not to cause persons "of common intelligence - necessarily [to] guess at its meaning and [to] differ as to its application." . . . In the area of expressive conduct, vague laws offend several important values: (1) they may trap the innocent by failure to provide fair warning; (2) they may fail to provide explicit and objective standards and therefore permit arbitrary and discriminatory enforcement; and (3) they may inhibit First Amendment freedoms by forcing individuals to "steer far wider of the unlawful zone . . . than if the boundaries of the forbidden areas were clearly marked."

Plaintiffs and amici argue, at length, that the decency provision is vague and should be refused effect under both the First and Fifth Amendments. Citing a number of Supreme Court opinions, they contend that words such as "decency" and "respect" are inherently subjective. . . In addition, they point out that such words as "decency" and "respect" are contentless in the context of American society: the very nature of our pluralistic society is that there are an infinite number of values and beliefs, and correlatively, there may be no national "general standards of decency." . . .

There is no question that persons "of common intelligence must necessarily guest at [the] meaning and differ as to [the] application of 954(d). . . . further, this provision clearly gives rise to . . . three evils . . .: (1) it creates a trap for the unwary applicant who may engage in expression she or he believes to comport with the standard, only to learn upon receiving notice that her or his grant has been withdrawn or a new application denied because she or he has offended someone's subjective understanding of the standard; (2) panelists, the Council, and the Chairperson are given no guidance in administering the standard; each apparently is expected to draw on her or his own personal views of decency or some ephemeral "general American standard of decency;" and (3) it necessarily causes the imposition of self-censorship wider than the line drawn by the statute because the line is, in effect, imperceptible. . . .

As the decency provision fails adequately to notify applicants of what is required of them or to circumscribe NEA discretion, it cannot be given effect consistent with the Fifth Amendment's due process requirement.

First Amendment

Plaintiffs also contend that the "decency" clause violates the First Amendment on two grounds. First, they contend that the decency clause constitutes an unconstitutional condition. They argue that because the NEA reviews all of an applicant's prior work in determining whether the application meets that standard. Alternatively, plaintiffs content that, even if the reach of the decency clause is limited to work funded by the NEA, public funding of the arts (like public funding in the context of a university or the press) requires government neutrality, a requirement violated by the decency clause.

The unconstitutional condition theory is easily disposed of for two reasons. First, this theory rests on allegations that NEA appraisal of funding applications includes an evaluation of each applicant's entire body of work - whether NEA-funded or otherwise. However, this is a facial challenge to the statute. On such a challenge, it is inappropriate to consider the manner in which the agency has interpreted and applied the statute.

Second, in support of this claim, plaintiffs have submitted evidence that the NEA grant-making process includes review of non-NEA funded works in more than one category within the NEA's Theater program. In response, defendants have adduced evidence that an applicant's past work is considered only in a few limited categories, and even then review is confined to consideration of the titles and dates of the performances. As defendants' evidence-creates a material factual dispute, resolution of this issue on summary judgment would be foreclosed even if agency practice were a permissible consideration in this context.

First Amendment interest in artistic expression funded by the government

As an alternative theory of First Amendment violation, plaintiffs contend that public subsidization of art, like public funding of the press and university activities, demands government neutrality. In effect, plaintiffs ask the court to recognize a protected First Amendment interest in artistic expression funded by the government.

Plaintiffs point out that the Court in Rust v. Sullivan. cautioned that "funding by the government, even when coupled with the freedom of the fund recipients to speak outside the scope of the government-funded project,. is [not] invariably sufficient to justify government control over the content of expression." . . . The Court cited universities and public fora as two settings in which First Amendment values demand government neutrality notwithstanding that in both contexts the government is merely declining to support speech rather than prohibiting it altogether. The court observed that its prior decisions recognized that .

the university is a traditional sphere of free expression so fundamental to the functioning of our society that the Government's ability to control speech within that sphere by means of conditions attached to the expenditure of funds is restricted by the vagueness and overbreadth doctrines. (citing Keyishian v. Board of Regents. , 385 U.S. 589, 603 (1967)). .

In Keyishian, a case widely-cited in support of academic freedom, the Court observed that.

Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the first Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. . . . the nation's future depends on leaders trained through wide exposure to that robust exchange of ideas which discovers truth "out of a multitude of tongues, [rather] than through any kind of authoritative selection. Keyishian. , 385 U.S. at 603.

Artistic expression, no less than academic speech or journalism, is at the core of a democratic society's cultural and political vitality. Congress recognized as much in establishing the NEA. For example, the Senate Report accompanying the NEA's creation devoted an entire section to "Freedom of Expression." It stated, inter alia. , that:

It is the intent of the committee that in the administration of this act there be given the fullest attention to freedom of artistic and humanistic expression . . . Countless times in history artists and humanists who were vilified by their contemporaries because of their innovations in style or mode of expression have become prophets to a later age.

Therefore, the committee affirms that the intent of this act should be the encouragement of free inquiry and expression. The committee wishes to make clear that conformity for its own sake is not to be encouraged, and that no undue preference should be given to any particular style or school of thought or expression . . . The standard should be artistic and humanistic excellence. S.Rep. No. 300, 89th Cong. 1st Sess. 3-4 (1965) (emphasis added)

In addition, the significance of the arts as a 'traditional sphere of free expression . . . fundamental to the functioning of our society," Rust . . . . . is confirmed by the legislative "Declaration of findings and purposes" that is a part of the NEA's authorizing statute. . . . 20 U.S.C. 951. .

It is clear from these legislative findings that artistic expression serves many of the same values central to a democratic society and underlying the first Amendment as does scholarly expression in other fields. In addition, as reported by amicus curiae. College Art Association ("CAA"), NEA grants are often made to artists and museums in the university context. For example, the CAA itself has received NEA grants to support its annual conference in past years. Additionally, many of its individual and institutional members have received NEA grants. CAA reports that government support has been critical to the health and well-being of the arts and humanities in American universities. . . .

In response to plaintiffs' position, defendants note that unlike public fora, NEA funding is a limited resource, and argue that the NEA cannot parcel out its limited budget on a purely content-neutral, first-come-first-served basis as governments must do in allocating use of a public forum. Instead, they argue, the agency must select a small percentage of the many applicants based on its subjective judgment of which of the exceptionally talented artists would best promote the statute's objectives.

Defendants misapprehend the substance of plaintiffs' challenge. Plaintiffs do not argue that arts funding is analogous to a public forum or that NEA funds must be allocated on a first-come, first-served basis. Rather, plaintiffs analogize funding for the arts to funding of public universities. In both settings, limited public funds are allocated to support expressive activities, and some content-based decisions are unavoidable. Nonetheless, this face does not permit the government to impose whatever restrictions it pleases on speech in a public university, nor should it provide such license in the arts funding context. Hiring and promotion decisions based on professional evaluations of academic merit are permissible in a public university setting, but decisions based on vague criteria or intended to suppress unpopular expression are not. . . . Analogously, professional evaluations of artistic merit are permissible, but decisions based on the wholly subjective criterion of "decency" are not. . . .

Thus, the fact that the exercise of professional judgment is inescapable in arts funding does not mean that the government has free rein to impose whatever content restrictions it chooses, just as the fact that academic judgment is inescapable in the university does not free public universities of first Amendment scrutiny. The right of artists to challenge conventional wisdom and values is a cornerstone of artistic and academic freedom, no less than the rights of scientists funded by the national institutes of health. . . . Therefore, the court holds that government funding of the arts is subject to the constraints of the First Amendment.

First Amendment injury

Having concluded that public funding of art is entitled to first Amendment protection, the resolution of plaintiffs' challenge is straightforward.

It is long been recognized that the First Amendment needs breathing space and that statutes attempting to restrict or burden the exercise of First Amendment rights must be narrowly drawn and represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society. Broadrick v. Oklahoma. , 413 U.S. 601, 611-12 (1973).

A statute that suppresses a substantial amount of constitutionally protected expression must be refused effect unless it is subject to a construction that narrows its reach only to unprotected speech. . .

The decency clause seeks to suppress speech that is offensive to some in society. It is well-established that

the fact that given speech is thought by many to be highly offensive, either because it espouses political, religious, racial or other doctrines which to many are most abhorrent, or because of its use of "indecent" words, does not, absent a showing of likely and imminent antisocial conduct arising from such speech, constitute a ground for abridging speech . . .

The decency clause clearly reaches a substantial amount of protected speech. . . . the Supreme Court [has] held that "expression which is indecent but not obscene is protected by the first Amendment. . . ." . . . The statute seeks to confine the NEA's funding approval only to what is "decent." Conversely, it seems to dissuade the NEA from funding what is "indecent." When a statute directed at speech is overbroad, as is the decency clause, it gives rise to the hazard that "a substantial loss or impairment of freedoms of expression will occur. . . .". . .

The decency clause sweeps within its ambit speech and artistic expression which is protected by the First Amendment. The court, therefore, holds that the decency clause, on its face, violates the First Amendment for overbreadth and cannot be given effect.


For all of the foregoing reasons, the court denies defendants' motion for judgment on the pleadings, except with respect to plaintiffs' Second Claim. Further, the court grants plaintiffs' motion for summary judgment on the Sixth Claim, on the grounds that the "decency" clause for 20 U.S.C. 954(d)(1), on its face, is void for vagueness under the Fifth Amendment and is overbroad under the First Amendment. A separate judgment shall be entered on the Sixth Claim, consistent herewith.

Notes omitted from the report of the opinion.

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