The ACLU is pleased to announce that they succeeded in court against the new National Endowment for the Arts provision prohibiting funding for organizations or projects promoting “gender ideology”. The case is Rhode Island Latino Arts v. National Endowment for the Arts. Here is an excerpt from the ACLU report:
In an important victory for First Amendment rights, a federal judge in Rhode Island has ruled in favor of four arts organizations in their challenge to the National Endowment for the Arts’ (NEA) policy disfavoring any grant applications for projects that the government believes “promote gender ideology.” The court held that the NEA’s policy violates the First Amendment and the Administrative Procedure Act (APA), and enjoined and set aside its implementation of an executive order that prohibits federal funding for grants that express ideas disfavored by the government.
U.S. Senior District Court Judge William Smith held that the NEA’s grant application review process “violates the First Amendment because it is a viewpoint-based restriction on private speech.” The order explains, “the NEA intends to disfavor applications that promote gender ideology precisely because they promote gender ideology. The Final Notice therefore promises to penalize artists based on their speech.”
Additionally, the court determined the NEA’s policy was “arbitrary and capricious” in violation of the APA because
“…there is zero explanation of what it means for a project to ‘promote gender ideology,’ let alone how that concept relates to artistic merit, artistic excellence, general standards of decency, or respect for the diverse beliefs and values of the American public.”
The suit was filed in March by the ACLU and the ACLU of Rhode Island on behalf of Rhode Island Latino Arts (RILA), National Queer Theater (NQT), The Theater Offensive (TTO), and Theatre Communications Group (TCG) after the NEA began requiring applicants to attest that they would not promote so-called “gender ideology” in order to be eligible for funding, and would bar any projects that were deemed to do so from getting an award. In immediate response to the ACLU’s litigation, the NEA paused the “gender ideology” certification requirement and undertook another decision-making process on how to implement the executive order banning the use of federal funds to “promote gender ideology.”
Those of us who have taught courses in arts policy over the years will think this looks similar to the other time NEA funding restrictions were taken to court – National Endowment for the Arts v. Finley (1998) – which made it all the way to the Supreme Court. Indeed, in the court statement above, it refers to the “general standards of decency / respect for the diverse beliefs and values of the American public clause” that was at the heart of the Finley case, and which was found to be constitutional.
But I think something important has changed.
For background, here is what I wrote about the Finley case in this space:
The late 80s and early 90s were what were once described as the time of the “culture wars”, though we came to find that there never actually was a peace treaty to end them. The NEA came under fire from the right for funding art that was provocative and, to some, offensive or blasphemous, and faced calls for an end to its funding. As a compromise, the NEA added to its criteria for the awarding of grants, “that artistic excellence and artistic merit are the criteria by which [grant] applications are judged, taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public.”
Karen Finley and three other artists were recommended for NEA grants by the peer-review panels, but were turned back at higher levels in the process on the “general standards of decency” clause. They sued, and were successful in district court and in appeals court arguing that the clause violated the First Amendment, on grounds of viewpoint discrimination, and also that the condition was unconstitutionally vague. But these judgments were reversed at the Supreme Court.
I am painting with a very broad, “I am not a lawyer” brush here: The majority opinion (delivered by Justice O’Connor) held that any system of grants to artists would necessarily have a subjective element – what, after all, constitutes “artistic excellence” other than what a panel of experienced, educated and disinterested artists and critics believe it to be? – and that the “decency” provision is just one aspect of the general considerations of an artist’s proposed work.
The concurrence by Scalia and Thomas held the majority opinion was rather timid: it is government money, and the government can spend it as it likes. Freedom of expression doesn’t come in to play if the state hires my firm to fill the potholes on County Road 37, and it doesn’t come in to play here either.
The lone dissent is from Souter, who sees that the “decency” clause will inevitably restrict radical viewpoints more so than conventional ones.
The final tally was 8 – 1.
So how is the new case different?
The first thing to remember is that the “general standards of decency” language came out of a series of compromises in Congress as it sought to finesse the issue of preventing government funding of religiously offensive or otherwise icky art while not being found guilty of engaging in viewpoint discrimination, an important feature any time the government gets involved in regulating speech – for example, the state can set so-called “time, place, and manner” restrictions on speech but not do so in such a way that will implicitly favor speakers from one viewpoint over another.
Here is some of the history given in the Supreme Court’s opinion in Finley:
When considering the NEA’s appropriations for fiscal year 1990, Congress reacted to the controversy surrounding the Mapplethorpe and Serrano photographs by eliminating $45,000 from the agency’s budget, the precise amount contributed to the two exhibits by NEA grant recipients. Congress also enacted an amendment providing that no NEA funds “may be used to promote, disseminate, or produce materials which in the judgment of [the NEA] 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.” Department of the Interior and Related Agencies Appropriations Act, 1990, 103 Stat. 738-742. The NEA implemented Congress’ mandate by instituting a requirement that all grantees certify in writing that they would not utilize federal funding to engage in projects inconsistent with the criteria in the 1990 appropriations bill. That certification requirement was subsequently invalidated as unconstitutionally vague by a Federal District Court, see Bella Lewitzky Dance Foundation v. Frohnmayer, 754 F. Supp. 774 (CD Cal. 1991), and the NEA did not appeal the decision. …
Congress debated several proposals to reform the NEA’s grant-making process when it considered the agency’s reauthorization in the fall of 1990. The House rejected the Crane Amendment, which would have virtually eliminated the NEA, see 136 Congo Rec. 28656-28657 (1990), and the Rohrabacher Amendment, which would have introduced a prohibition on awarding any grants that could be used to “promote, distribute, disseminate, or produce matter that has the purpose or effect of denigrating the beliefs, tenets, or objects of a particular religion” or “of denigrating an individual, or group of individuals, on the basis of race, sex, handicap, or national origin,” id., at 28657-28664. Ultimately, Congress adopted the Williams/ Coleman Amendment, a bipartisan compromise between Members opposing any funding restrictions and those favoring some guidance to the agency. In relevant part, the Amendment became § 954(d)(1), which directs the Chairperson, in establishing procedures to judge the artistic merit of grant applications, to “tak[e] into consideration general standards of decency and respect for the diverse beliefs and values of the American public.”
In short: it was felt, in the 1990s, that if Congress was going to put some guardrails around NEA funding, they had to try to ensure viewpoint neutrality. Finley’s position, which was ultimately defeated at the Supreme Court (although I think she had a strong case) was that they had not achieved their goal; there were some viewpoints that might compel the artist to offend what others might think are general standards of decency.
But in any case, as we see in the Rhode Island decision, the “decency” provision has survived to this day, and is taken for granted.
What the Rhode Island case has brought to the fore is not majority decision in the Finley case, but the concurring opinion in Finley written by Justice Antonin Scalia, joined by Justice Thomas (who might yet get to rule in this current case). For Scalia said, in short, of course the decency clause amounts to viewpoint discrimination, but the government is entirely within its rights to do that, since Finley was not about “freedom of speech” – she maintained the right to make any art she wanted to – but about government funding of art, which is an entirely different thing.
Scalia:
I agree with the Court that § 954(d)(1) “imposes no categorical requirement,” ante, at 581, in the sense that it does not require the denial of all applications that violate general standards of decency or exhibit disrespect for the diverse beliefs and values of Americans. Cf. § 954(d)(2) (“[O]bscenity … shall not be funded”). But the factors need not be conclusive to be discriminatory. To the extent a particular applicant exhibits disrespect for the diverse beliefs and values of the American public or fails to comport with general standards of decency, the likelihood that he will receive a grant diminishes. In other words, the presence of the “tak[e] into consideration” clause “cannot be regarded as mere surplusage; it means something,” Potter v. United States, 155 U. S. 438, 446 (1894). And the “something” is that the decisionmaker, all else being equal, will favor applications that display decency and respect, and disfavor applications that do not.
This unquestionably constitutes viewpoint discrimination. That conclusion is not altered by the fact that the statute does not “compe[l]” the denial of funding, ante, at 581, any more than a provision imposing a five-point handicap on all black applicants for civil service jobs is saved from being race discrimination by the fact that it does not compel the rejection of black applicants. If viewpoint discrimination in this context is unconstitutional (a point I shall address anon), the law is invalid unless there are some situations in which the decency and respect factors do not constitute viewpoint discrimination. And there is none. The applicant who displays “decency,” that is, “[c]onformity to prevailing standards of propriety or modesty,” American Heritage Dictionary, at 483 (def. 2), and the applicant who displays “respect,” that is, “deferential regard,” for the diverse beliefs and values of the American people, id., at 1536 (def. 1), will always have an edge over an applicant who displays the opposite. …
The Court devotes so much of its opinion to explaining why this statute means something other than what it says that it neglects to cite the constitutional text governing our analysis. The First Amendment reads: “Congress shall make no law … abridging the freedom of speech.” U. S. Const., Amdt. 1 (emphasis added). To abridge is “to contract, to diminish; to deprive of.” T. Sheridan, A Complete Dictionary of the English Language (6th ed. 1796). With the enactment of § 954(d)(1), Congress did not abridge the speech of those who disdain the beliefs and values of the American public, nor did it abridge indecent speech. Those who wish to create indecent and disrespectful art are as unconstrained now as they were before the enactment of this statute. Avant-garde artistes such as respondents remain entirely free to epater les bourgeois; they are merely deprived of the additional satisfaction of having the bourgeoisie taxed to pay for it. It is preposterous to equate the denial of taxpayer subsidy with measures” ”’aimed at the suppression of dangerous ideas.”‘” Regan v. Taxation with Representation of Wash., 461 U. S. 540, 550 (1983) (emphasis added) (quoting Cammarano v. United States, 358 U. S. 498, 513 (1959), in turn quoting Speiser v. Randall, 357 U. S. 513, 519 (1958)). “The reason that denial of participation in a tax exemption or other subsidy scheme does not necessarily ‘infringe’ a fundamental right is that-unlike direct restriction or prohibition-such a denial does not, as a general rule, have any significant coercive effect.” Arkansas Writers’ Project, Inc. v. Ragland, 481 U. S. 221, 237 (1987) (SCALIA, J., dissenting).
One might contend, I suppose, that a threat of rejection by the only available source of free money would constitute coercion and hence “abridgment” within the meaning of the First Amendment. Cf. Norwood v. Harrison, 413 U. S. 455, 465 (1973). I would not agree with such a contention, which would make the NEA the mandatory patron of all art.
The “no gender ideology” provision the NEA now maintains is to my mind an application of the Scalia doctrine, in that there is no attempt to suggest that somehow this provision is not viewpoint discrimination. Obviously the NEA is now engaged in viewpoint discrimination: “here is a viewpoint that cannot be a factor in your art.” The Rhode Island case is not going to be about whether there is viewpoint discrimination going on: that was the point of the Finley case, which took place in that historic era where it was thought to matter. The Rhode Island case is about whether Scalia was right – that viewpoint discrimination in public funding is perfectly constitutional.
Crossposted at https://michaelrushton.substack.com/
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