National Endowment for the Arts v. Finley: First Amendment Free Speech No Longer Guaranteed for the Arts - Andrea Mccoy

• Citation: Vol. 50 No. 3
• Publication year: 1999

National Endowment for the Arts v. Finley:

First Amendment Free Speech No Longer

Guaranteed for the Arts

In National Endowment for the Arts v. Finley,¹ the United States Supreme Court confronted the decency and respect criteria of the 1990 Amendment ("Amendment") to the National Foundation on the Arts and Humanities Act of 1965.² At issue was whether the Amendment violated the First and Fifth Amendments of the United States Constitution by impermissibly discriminating based on viewpoint and being void for vagueness.³ The Supreme Court upheld the Amendment as facially valid.⁴

I. Factual Background

Congress created the National Endowment for the Arts ("NEA") in 1965 as part of the National Foundation on the Arts and Humanities.⁵ Since its inception, the NEA has awarded over three billion dollars in grants with very few formal complaints "about misapplied funds or abuse of the public's trust."⁶ The Amendment at issue, passed in 1990, is the result of congressional outrage over two works funded by the NEA: an exhibit by Robert Mapplethorpe including "homoerotic photographs" and a piece by Andres Serrano depicting the "crucifix immersed in urine."⁷ The Amendment directs the NEA to consider "general standards of decency and respect for the diverse beliefs and values of the American public" in awarding grants.⁸ In response to the Amendment, the NEA adopted a resolution to ensure diverse membership of panels conducting the initial review of grant applications.⁹

Prior to the Amendment's enactment, plaintiffs, individual performance artists, sought funding by the NEA.¹⁰ Although initially approved by a panel, their applications were subsequently denied by the National Council on the Arts.¹¹ Plaintiffs then filed a complaint alleging violations of their First Amendment rights,¹² as well as violations of the National Foundation on the Arts and Humanities Act¹³ and of the Privacy Act.¹⁴ After the 1990 Amendment was enacted, plaintiffs amended their complaints.¹⁵ Joined by the National Association of Artists' Organization, plaintiffs claimed that the Amendment violated their First and Fifth Amendment rights of free speech and due process, respectively.¹⁶ Stating that the complaint indicated that plaintiffs' applications were denied based on the content of plaintiffs' past performances, the district court denied the NEA's motions for judgment on the pleadings¹⁷ and for summary judgment on the constitutional violations of the Amendment.¹⁸ The court stated that the Amendment violated the Fifth Amendment due process requirement because it "fail[ed] adequately to notify applicants of what is required of them or to circumscribe NEA discretion."¹⁹ Likewise, it violated the First Amendment's guarantee of free speech by "sweepfing] within its ambit [protected] speech" and expression.²⁰

Dismissing the NEA's contention that the decency and respect criteria were not vague because the NEA was not required to add them to its standards for judging grant applications²¹ and because its requiring diverse panels ensured adherence to the criteria,²² the court of appeals affirmed the district court. The court held that the NEA's interpretation was implausible based on the language of the statute,²³ its legislative history,²⁴ and canons of statutory construction.²⁵ Likewise, the court rejected the NEA's assertion that the criteria did not violate free speech because "the government may restrict the content of speech it funds"²⁶ and held that the criteria constituted viewpoint discrimination and that the government could not discriminate based on viewpoint even when it funds speech.²⁷

In a dissenting opinion, Judge Kleinfeld distinguished between the government's awarding a prize and its giving an entitlement.²⁸ In the former instance, the government "necessarily" discriminates by content and viewpoint.²⁹ Thus, because an NEA grant is like a prize to its recipient,³⁰ the government can discriminate based on viewpoint or content.³¹ On appeal, the Supreme Court upheld the decency and respect criteria on the ground that they were neither unconstitutionally discriminatory based on viewpoint nor unconstitutionally vague.³²

II. Legal Background

A fundamental principle of First Amendment jurisprudence is that the government may not preclude speech "simply because society finds the [speech] . . . offensive or disagreeable."³³ The Supreme Court has repeatedly stated that the regulation of speech based on content or viewpoint is subject to strict scrutiny³⁴ which renders the regulations unconstitutional in most cases. Although Congress has the power to regulate speech "on the basis of a noncontent element" like noise, and even on a content element like obscenity, it does not have the power to "proscribe [speech] on the basis of other content elements."³⁵ Furthermore, content-based discrimination may be constitutional if the class of speech being discriminated against is a prescribable one and if the discrimination is based solely on the "very reason the entire class of speech at issue is prescribable."³⁶ For example, the government may prohibit only obscenity involving "the most lascivious displays of sexual activity," but may not prohibit only obscenity containing "offensive political messages."³⁷

In R.A.V. v. City of St. Paul,³⁸ the Court struck a city ordinance that criminalized the placing of a burning cross on public or private property "which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender."³⁹ Bound by the Minnesota Supreme Court's interpretation of the ordinance,⁴⁰ the Court nevertheless found that the statute constituted viewpoint discrimination.⁴¹ The Court stated that the ordinance violated the First Amendment by allowing abusive expression "no matter how vicious or severe"⁴² as long as the expression did not contain references "to one of the specified disfavored topics."⁴³ Stating that "majority preferences must be expressed in some fashion other than silencing speech on the basis of its content," the Court discounted the City's assertion that the ordinance was the only way it could let minorities know that "group hatred" was "not condoned by the majority."⁴⁴

Likewise, the Court rejected the City's argument that the ordinance fell within the "secondary effects" exception to First Amendment prohibitions of content-based discrimination found in Renton v. Playtime Theatres, Inc.⁴⁵ The City argued that the ordinance sought to protect minorities from "victimization" due to their minority status.⁴⁶ The Court, however, stated that "[I]isteners' reactions to speech are not the type of 'secondary effects' we referred to in Renton."⁴⁷ The City further contended that, even if the ordinance was content-based discriminatory, it was nevertheless constitutional because it was narrowly tailored to serve the compelling state interest of protecting the rights of groups that had been historically subject to discrimination.⁴⁸ The Court held that the ordinance was not necessary to fulfill the City's purported interest because there were neutral alternatives that would satisfy that interest.⁴⁹

Stating that the distinction between content and viewpoint discrimination is imprecise, the Court in Rosenberger v. Rector and Visitors of the University of Virginia⁵⁰ rejected the University's argument that its refusal to pay publication costs for a student journal with religious overtones constituted content, not viewpoint, discrimination and, thus, was not "presumptively unconstitutional."⁵¹ Instead, analogizing to Lamb's Chapel v. Center Moriches Union Free School District,⁵² the Court found that the University's policy constituted viewpoint discrimination.⁵³ The Court discounted the University's attempt to distinguish between the funds it denied and the access to facilities denied in Lamb's Chapel on the ground that "the State must have substantial discretion in determining how to allocate scarce resources to accomplish its educational mission."⁵⁴ The Court noted a distinction between the government as speaker and the government as facilitator.⁵⁵ On one hand, the government acts as speaker either by actually speaking or by providing funds to private entities to relay the government's message, both of which allow the government to "make content-based choices" and to "say what it wishes."⁵⁶ On the other hand, the government acts as facilitator by "expend[ing] funds to encourage a diversity of views from private speakers," which does not allow the government to discriminate based on viewpoint.⁵⁷ Arguing that while "money is scarce[,] . . . physical facilities are not,"⁵⁸ the University sought a further distinction from Lamb's Chapel. The Court, however, rejected that argument on the ground that scarcity requires the state to allocate resources on "some acceptable neutral principle," but does not allow the state "to exercise viewpoint discrimination that is otherwise impermissible."⁵⁹ The Court also noted two dangers to First Amendment principles that the University's policy represented: (1) a danger to liberty by allowing the state to read journals to ascertain their ideas and then to classify the journals based on those ideas and (2) a danger to speech by "chilling . . . individual thought and expression."⁶⁰ In a final attempt to save its policy, the University argued that it was prohibited by the First Amendment's Establishment Clause to fund religious journals.⁶¹ Stating that the Establishment Clause does not require "the University to deny eligibility to student publications because of their viewpoint,"⁶² the Court dismissed that argument with a wave of its proverbial hand.

The Supreme Court has attempted to draw a line between regulation of indecent and obscene speech. Although the Court has stated that obscenity is not protected by the First Amendment,⁶³ it has not been as precise with regard to indecent speech.

In FCC v. Pacifica,⁶⁴ the Court upheld an FCC...