National Endowment for the Arts v. Finley

524 U.S. 569

Case Year: 1998

Case Ruling: 8-1, Reversed and Remanded

Opinion Justice: O'Connor

More Information

Concurring Opinions

Dissenting Opinions

Court Opinion Joiner(s):

Breyer, Ginsburg, Kennedy, Rehnquist, Scalia, Stevens, Thomas


1st Concurring Opinion

Author: Scalia


1st Dissenting Opinion

Author: Souter


2nd Concurring Opinion



2nd Dissenting Opinion



3rd Concurring Opinion



3rd Dissenting Opinion



Other Concurring Opinions:


Congress established the National Endowment for the Arts (NEA) in 1965 as part of a general policy of supporting the arts through federal grants. Applications for NEA funding are reviewed first by advisory panels of experts, who make recommendations to the National Council on the Arts, which in turn advises the NEA chair. The chair has the ultimate authority to award grants, but he or she may not fund projects that receive negative recommendations from the council. Between 1965 and 1998, the NEA awarded more than $3 billion to support various arts initiatives. These funds went to state arts agencies, symphony orchestras, fine arts museums, opera associations, and individuals.

In 1989 two projects that received support from the NEA caused public controversy. The first was a retrospective of photographer Robert Mapplethorpe's work, parts of which many thought were obscene. The second was a photograph by artist Andres Serrano depicting a crucifix immersed in urine. The public controversy over federal money being used to support such projects prompted Congress in 1990 to revise its regulations governing the NEA. Among these revisions was section 954(d)(1) of the Arts and Humanities Act. This section directs the chair, in establishing procedures to judge the artistic merit of grant applications, to take into consideration "general standards of decency and respect for the diverse beliefs and values of the American public."

Four performance artists, including Karen Finley, applied for NEA funding before section 954(d)(1) was enacted. An advisory panel recommended approval of the projects, but a majority of the council recommended disapproval. The four artists sued the NEA claiming, among other things, that the agency violated the artists' First Amendment rights by denying their applications on political grounds. Shortly thereafter, Congress passed section 954(d)(1), and they subsequently amended their suit to challenge the new regulations for violating the First Amendment and for being unconstitutionally vague. The district court ruled in favor of the artists, and a divided court of appeals affirmed.



... Respondents raise a facial constitutional challenge to §954(d)(1), and consequently they confront "a heavy burden" in advancing their claim.... To prevail, respondents must demonstrate a substantial risk that application of the provision will lead to the suppression of speech....

Respondents argue that the provision is a paradigmatic example of viewpoint discrimination because it rejects any artistic speech that either fails to respect mainstream values or offends standards of decency. The premise of respondents' claim is that §954(d)(1) constrains the agency's ability to fund certain categories of artistic expression. The NEA, however, reads the provision as merely hortatory, and contends that it stops well short of an absolute restriction. Section 954(d)(1) adds "considerations" to the grant-making process; it does not preclude awards to projects that might be deemed "indecent" or "disrespectful," nor place conditions on grants, or even specify that those factors must be given any particular weight in reviewing an application. Indeed, the agency asserts that it has adequately implemented §954(d)(1) merely by ensuring the representation of various backgrounds and points of view on the advisory panels that analyze grant applications.... We do not decide whether the NEA's view--that the formulation of diverse advisory panels is sufficient to comply with Congress' command--is in fact a reasonable reading of the statute. It is clear, however, that the text of §954(d)(1) imposes no categorical requirement. The advisory language stands in sharp contrast to congressional efforts to prohibit the funding of certain classes of speech. When Congress has in fact intended to affirmatively constrain the NEA's grant-making authority, it has done so in no uncertain terms. See §954(d)(2) ("[O]bscenity is without artistic merit, is not protected speech, and shall not be funded").

Furthermore, like the plain language of §954(d), the political context surrounding the adoption of the "decency and respect" clause is inconsistent with respondents' assertion that the provision compels the NEA to deny funding on the basis of viewpoint discriminatory criteria. The legislation was a bipartisan proposal introduced as a counterweight to amendments aimed at eliminating the NEA's funding or substantially constraining its grant-making authority..... [T]he criteria in §954(d)(1) inform the assessment of artistic merit, but Congress declined to disallow any particular viewpoints.... In contrast, before the vote on §954(d)(1), one of its sponsors stated: "If we have done one important thing in this amendment, it is this. We have maintained the integrity of freedom of expression in the United States."...

That §954(d)(1) admonishes the NEA merely to take "decency and respect" into consideration, and that the legislation was aimed at reforming procedures rather than precluding speech, undercut respondents' argument that the provision inevitably will be utilized as a tool for invidious viewpoint discrimination. In cases where we have struck down legislation as facially unconstitutional, the dangers were both more evident and more substantial. In R.A.V. v. St. Paul (1992), for example, we invalidated on its face a municipal ordinance that defined as a criminal offense the placement of a symbol 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.'" That provision set forth a clear penalty, proscribed views on particular "disfavored subjects," ... and suppressed "distinctive idea[s], conveyed by a distinctive message."...

In contrast, the "decency and respect" criteria do not silence speakers by expressly "threaten[ing] censorship of ideas."... Thus, we do not perceive a realistic danger that §954(d)(1) will compromise First Amendment values....

Respondents' claim that the provision is facially unconstitutional may be reduced to the argument that the criteria in §954(d)(1) are sufficiently subjective that the agency could utilize them to engage in viewpoint discrimination. Given the varied interpretations of the criteria and the vague exhortation to "take them into consideration," it seems unlikely that this provision will introduce any greater element of selectivity than the determination of "artistic excellence" itself. And we are reluctant, in any event, to invalidate legislation "on the basis of its hypothetical application to situations not before the Court."...

Respondents do not allege discrimination in any particular funding decision.... Thus, we have no occasion here to address an as-applied challenge in a situation where the denial of a grant may be shown to be the product of invidious viewpoint discrimination. If the NEA were to leverage its power to award subsidies on the basis of subjective criteria into a penalty on disfavored viewpoints, then we would confront a different case.... Unless and until §954(d)(1) is applied in a manner that raises concern about the suppression of disfavored viewpoints, however, we uphold the constitutionality of the provision....

Finally, although the First Amendment certainly has application in the subsidy context, we note that the Government may allocate competitive funding according to criteria that would be impermissible were direct regulation of speech or a criminal penalty at stake. So long as legislation does not infringe on other constitutionally protected rights, Congress has wide latitude to set spending priorities....

The lower courts also erred in invalidating §954(d)(1) as unconstitutionally vague. Under the First and Fifth Amendments, speakers are protected from arbitrary and discriminatory enforcement of vague standards....

In the context of selective subsidies, it is not always feasible for Congress to legislate with clarity. Indeed, if this statute is unconstitutionally vague, then so too are all government programs awarding scholarships and grants on the basis of subjective criteria such as "excellence."...

Section 954(d)(1) merely adds some imprecise considerations to an already subjective selection process. It does not, on its face, impermissibly infringe on First or Fifth Amendment rights. Accordingly, the judgment of the Court of Appeals is reversed and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.


"The operation was a success, but the patient died." What such a procedure is to medicine, the Court's opinion in this case is to law. It sustains the constitutionality of 20 U.S.C. §954(d)(1) by gutting it. The most avid congressional opponents of the provision could not have asked for more. I write separately because, unlike the Court, I think that §954(d)(1) must be evaluated as written, rather than as distorted by the agency it was meant to control. By its terms, it establishes content- and viewpoint-based criteria upon which grant applications are to be evaluated. And that is perfectly constitutional....

The phrase "taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public" is what my grammar-school teacher would have condemned as a dangling modifier: There is no noun to which the participle is attached. Even so, it is clear enough that the phrase is meant to apply to those who do the judging. The application reviewers must take into account "general standards of decency" and "respect for the diverse beliefs and values of the American public" when evaluating artistic excellence and merit. One can regard this as either suggesting that decency and respect are elements of what Congress regards as artistic excellence and merit, or as suggesting that decency and respect are factors to be taken into account in addition to artistic excellence and merit. But either way, it is entirely, 100% clear that decency and respect are to be taken into account in evaluating applications.

This is so apparent that I am at a loss to understand what the Court has in mind (other than the gutting of the statute) when it speculates that the statute is merely "advisory."...

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."... 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 Žpater 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. (1983)....

Section 954(d)(1) is no more discriminatory, and no less constitutional, than virtually every other piece of funding legislation enacted by Congress. "The Government can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternative program...." Rust v. Sullivan (1991)....

The nub of the difference between me and the Court is that I regard the distinction between "abridging" speech and funding it as a fundamental divide, on this side of which the First Amendment is inapplicable. The Court, by contrast, seems to believe that the First Amendment, despite its words, has some ineffable effect upon funding, imposing constraints of an indeterminate nature which it announces (without troubling to enunciate any particular test) are not violated by the statute here--or, more accurately, are not violated by the quite different, emasculated statute that it imagines.... Finally, what is true of the First Amendment is also true of the constitutional rule against vague legislation: it has no application to funding. Insofar as it bears upon First Amendment concerns, the vagueness doctrine addresses the problems that arise from government regulation of expressive conduct, see Grayned v. City of Rockford (1972), not government grant programs. In the former context, vagueness produces an abridgment of lawful speech; in the latter it produces, at worst, a waste of money. I cannot refrain from observing, however, that if the vagueness doctrine were applicable, the agency charged with making grants under a statutory standard of "artistic excellence"--and which has itself thought that standard met by everything from the playing of Beethoven to a depiction of a crucifix immersed in urine--would be of more dubious constitutional validity than the "decency" and "respect" limitations that respondents (who demand to be judged on the same strict standard of "artistic excellence") have the humorlessness to call too vague....

... I concur only in the judgment.


... The decency and respect proviso mandates viewpoint-based decisions in the disbursement of government subsidies, and the Government has wholly failed to explain why the statute should be afforded an exemption from the fundamental rule of the First Amendment that viewpoint discrimination in the exercise of public authority over expressive activity is unconstitutional. The Court's conclusions that the proviso is not viewpoint based, that it is not a regulation, and that the NEA may permissibly engage in viewpoint-based discrimination, are all patently mistaken....

"If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Texas v. Johnson (1989). "[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message [or] its ideas," Police Dept. of Chicago v. Mosley (1972), which is to say that "[t]he principle of viewpoint neutrality ... underlies the First Amendment," Bose Corp. v. Consumers Union of United States, Inc. (1984). Because this principle applies not only to affirmative suppression of speech, but also to disqualification for government favors, Congress is generally not permitted to pivot discrimination against otherwise protected speech on the offensiveness or unacceptability of the views it expresses....

... When called upon to vindicate this ideal, we characteristically begin by asking "whether the government has adopted a regulation of speech because of disagreement with the message it conveys. The government's purpose is the controlling consideration." Ward v. Rock Against Racism [1989]. The answer in this case is damning. One need do nothing more than read the text of the statute to conclude that Congress's purpose in imposing the decency and respect criteria was to prevent the funding of art that conveys an offensive message; the decency and respect provision on its face is quintessentially viewpoint based, and quotations from the Congressional Record merely confirm the obvious legislative purpose. In the words of a cosponsor of the bill that enacted the proviso, "[w]orks which deeply offend the sensibilities of significant portions of the public ought not to be supported with public funds."... Another supporter of the bill observed that "the Endowment's support for artists like Robert Mapplethorpe and Andre[s] Serrano has offended and angered many citizens," behooving "Congress ... to listen to these complaints about the NEA and make sure that exhibits like [these] are not funded again."... Indeed, if there were any question at all about what Congress had in mind, a definitive answer comes in the succinctly accurate remark of the proviso's author, that the bill "add[s] to the criteria of artistic excellence and artistic merit, a shell, a screen, a viewpoint that must be constantly taken into account."....

Just as self-evidently, a statute disfavoring speech that fails to respect America's "diverse beliefs and values" is the very model of viewpoint discrimination; it penalizes any view disrespectful to any belief or value espoused by someone in the American populace. Boiled down to its practical essence, the limitation obviously means that art that disrespects the ideology, opinions, or convictions of a significant segment of the American public is to be disfavored, whereas art that reinforces those values is not. After all, the whole point of the proviso was to make sure that works like Serrano''s ostensibly blasphemous portrayal of Jesus would not be funded, ... while a reverent treatment, conventionally respectful of Christian sensibilities, would not run afoul of the law. Nothing could be more viewpoint based than that.... The fact that the statute disfavors art insufficiently respectful of America's "diverse" beliefs and values alters this conclusion not one whit: the First Amendment does not validate the ambition to disqualify many disrespectful viewpoints instead of merely one....

Since the decency and respect proviso of §954(d)(1) is substantially overbroad and carries with it a significant power to chill artistic production and display, it should be struck down on its face.