A federal appeals court Tuesday ruled the government cannot require the National Endowment for the Arts to consider prevailing standards of decency in making grants to artists.
Upholding an earlier decision by a federal district court, the U.S. Court of Appeals for the Ninth Circuit here ruled by a 2-1 margin that the standards proposed by the government were vague and potentially arbitrary.
The imposition of these standards would amount to an unconstitutional restriction on freedom of speech, the court added.
“Even when the government is funding speech,” the court wrote, “it may not distinguish between speakers on the basis of the speaker’s viewpoint or otherwise aim at the suppression of dangerous ideas.”
The decency standards were adopted by Congress in 1990 as a condition of the arts endowment’s continued survival. Its passage followed a long campaign by conservatives who were outraged that public money was being spent on the work of sexually explicit artists like the late photographer Robert Mapplethorpe and the performance artist Karen Finley.
Finley and three other performance artists who were denied grants sued the endowment in 1990. The endowment later tried to apply the congressional mandate simply by filtering applications for grants through panels of judges who were seen to represent a wider range of social values.
But in June 1992, a federal judge in Los Angeles, A. Wallace Tashima, rejected the idea that applicants for the endowment’s funding could be fairly judged on the basis of “general standards of decency and respect for the diverse beliefs and values of the American public.”