Appendix — National Endowment for Arts v. Finley

Supreme Court brief1998

Ask Donna

What actually matters in this document.

Text

Soae Pant

S leieeennanl

In the Supreme Court of the Giuted States

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

TABLE OF CONTENTS

Appendix A (court of appeals’ opinion dated

Nov. 5, 1996)

Appendix B (district court memorandum opinion

dated June 9, 1992)

Appendix C (court of appeals rehearing order

dated May 1, 1997)

Appendix D (statutes involved)

APPENDIX A

NITED STATES COURT O]

NINTH CIRCUIT

NO. 92-5602

NATIONAL ENDOWME?

YT FOR THE ARTS: JAN

ALEXANDER,* IN HER Orr!

\S CHAIRPERSON OF THE NATIONA! I

FOR THE AR’

KARI 1 FINLEY: JOHN rLECK: Hol H

Tim MILLER: NATIONAL AssocraT)

ARTISTS’ OrG

ATION =.

N\ \ {) \ }- OW Mi {) } \) |

\ eYANTD!I ‘i Hy ()y ("Al

("HA py} I rey

No. 92-55089

KAREN FINLEY; JOHN FLECK; HOLLY HUGHES;

Tim MILLER; NATIONAL ASSOCIATION OF

ARTISTS’ ORGANIZATIONS, PLAINTIFFS-APPELLEES

NATIONAL ENDOWMENT FOR THE ARTS; JANE

ALEXANDER, IN HER OFFICIAL CAPACITY

AS CHAIRPERSON OF THE NATIONAL ENDOWMENT

FOR THE ARTS, DEFENDANTS-APPELLANTS

Argued and Submitted Feb. 3, 1994

Decided Nov. 5, 1996

Before: BROWNING, FERGUSON and KLEINFELD,

Circuit Judges.

Opinion by Judge BrowNniNnG; Dissent by Judge

KLEINFELD.

JAMES R. BROWNING, Circuit Judge:

Plaintiffs Karen Finley, John Fleck, Holly Hughes,

and Tim Miller were refused fellowships under the

defendant National Endowment for the Arts’ (“NEA”)

solo performance artists program. They filed suit,

alleging, among other things, that a provision of the

NEA’s governing statute identifying the standard for

approval of funding applications violated the Fifth and

First Amendments because it was impermissibly

vague and imposed content-based restrictions on pro-

tected speech. The district court agreed, granted

summary judgment to the plaintiffs, and certified

ea a —

its ruling for interlocutory appeal. Finley v. Na-

tional Endowment for the Arts, 795 F.Supp. 1457

(C.D. Cal. 1992). We affirm, essentially for the rea-

sons stated by the district court.'

Congress gave the NEA authority “to establish and

carry out 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

Chairperson of the NEA has ultimate authority to

approve or disapprove grants. 20 U.S.C. §§ 954(c),

955(f). Before making a decision on a particular grant

application, however, the Chairperson must consult

and receive the advice of the 26-member National

Council on the Arts.’ 20 U.S.C. § 955(f). The Chair-

person may not approve any application disapproved

by the National Council. Jd. The Chairperson must

' We do not address the district court’s ruling in favor of

plaintiffs on their claim that the Chairperson violated the

NEA’s governing statute by obtaining the advice of the

National Council on the Arts through a telephone poll before

acting on plaintiffs’ applications. The parties have settled this

issue.

We also do not reach plaintiffs’ claim that the statute

imposes an unconstitutional condition in violation of F.C.C. v.

League of Women Voters, 468 U.S. 364, 104 S.Ct. 3106, 82

L.Ed.2d 278 (1984). The district court denied summary judg-

ment on the ground that there were disputed issues of fact

bearing on the claim, and this denial of summary judgment is

not appealable. Because the issue is not properly before us, we

do not address the dissent’s suggestion that League of Women

Voters is distinguishable.

* The Chairperson and Council members are appointed by

the President, by and with the advice and consent of the

Senate. 20 U.S.C. §§ 954(b)(1), 955(b).

also utilize advisory panels to review applications and

make recommendations to the National Council.

20 U.S.C. § 959%).

An advisory panel recommended approval of plain-

tiffs’ applications; a majority of the Council recom-

mended disapproval; the Chairperson denied the

applications. The district court concluded the statu-

tory standard under which the applications were

judged, which requires the NEA to “takle] into con-

sideration general stancards of decency and respect

for the diverse beliefs and values of the American

public,” 20 U.S.C. § 954(d)(1), violated plaintiffs’ due

process and free speech rights.’

The void-for-vagueness doctrine incorporates sev-

eral important due process principles.‘ It requires

* 20 U.S.C. § 954(d), as amended in 1990, reads as follows:

No payment shall be made under this section except

upon application therefor which is submitted to the

National Endowment for the Arts in accordance with

regulations issued and procedures established by the

Chairperson. In establishing such regulations and proce-

dures, the Chairperson shall ensure that—

(1) 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.

. (added language emphasized).

4 Although the dissent argues the applicants have no

property right in NEA grants and their liberty to express

themselves is not regulated by the grants, the right to engage

in free speech is a liberty interest protected by due process.

See, e.g., Procunier v. Martinez, 416 U.S. 396, 418, 94 S.Ct.

1800, 1814, 40 L.Ed.2d 224 (1974), overruled on other grounds by

Thornburgh v. Abbott, 490 U.S. 401, 109 S.Ct. 1874, 104 L.Ed.2d

that a law give fair notice of its mandate. “{Blecause

we assume that man is free to steer between lawful

and unlawful conduct, we insist that laws give the

person of ordinary intelligence a reasonable opportu-

nity to know what is prohibited, so that he may act

accordingly.” Grayned v. City of Rockford, 408 U.S.

104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 (1972).

459 (1989); Reed v. Village of Shorewood, 704 F.2d 943, 949 (7th

Cir. 1983) (“Freedom of speech is one of the liberties the due

process clause has been held to protect.”). Art is one of many

protected forms of speech. See Miller v. California, 413 U.S. 15,

34, 93 S.Ct. 2607, 2620, 37 L.Ed.2d 419 (1973). While the artists

do not have a property right in the grants, they are protected

by the due process clause from arbitrary and discriminatory

enforcement of vague standards that “abut(s] upon sensitive

areas of basic First Amendment freedoms.” Grayned v. City

of Rockford, 408 U.S. 104, 109, 92 S.Ct. 2294, 2299, 33 L.Ed.2d

222 (1972) (citation omitted).

The First Amendment, moreover, is an salekiebin source

of vagueness doctrine. See N.A.A.C.P. v. Button, 371 U.S. 415,

432-35, 83 S.Ct. 328, 337-38, 9 L.Ed.2d 405 (1963); Kreimer v.

Bureau of Police, 958 F.2d 1242, 1266 (3d Cir. 1992) (explaining

that “courts have transplanted this due process principle into

the First Amendment setting”). Thus, we routinely consider

whether speech-related statutes are impermissibly vague with-

out specifying the liberty or property interest at stake. See

Bullfrog Films, Inc. v. Wick, 847 F.2d 502, 512-14 (9th

Cir.1988); Planned Parenthood v. Arizona, 718 F.2d 938, 946-49

(9th Cir.1983). In this case, we ground our discussion of vague-

ness in both the Fifth and First Amendments.

In addition, we disagree with the dissent’s suggestion that

First Amendment vagueness doctrine only applies if the gov-

ernment regulates speech or places conditions on a generally

available benefit. As the Court noted in Rosenberger, the scar-

city of a government benefit does not render it immune from

constitutional limitations. See Rosenberger v. Rector & Visitors

of the Univ. of Virginia, — US. . . , 115 S.Ct.

2510, 2519-20, 132 L.Ed.2d 700 (1995).

The void-for-vagueness doctrine also requires that a

law provide explicit standards for those who are to

apply it. “A vague law impermissibly delegates basic

policy matters to policemen, judges, and juries for

resolution on an ad hoe and subjective basis, with the

attendant dangers of arbitrary and discriminatory

application.” Jd. at 108-09, 92 S.Ct. at 2299.

The twin dangers of a vague law—lack of notice and

arbitrary or discriminatory application—may chill

the exercise of important constitutional rights.

“(Where a vague statute ‘abut[{s] upon sensitive areas

of basic First Amendment freedoms,’ it ‘operates to

inhibit the exercise of [those] freedoms.’” Jd. at 109,

92 S.Ct. at 2299 (citation omitted). Not surprisingly,

therefore, courts apply a heightened vagueness stan-

dard to a law that could deter protected speech

because of its uncertain meaning. N.A.A.C.P. v.

Button, 371 U.S. 415, 432-33, 83 S.Ct. 328, 337-38, 9

L.Ed.2d 405 (1963) (“{S]tandards of permissible

statutory vagueness are strict in the area of free

expression. . . . Because First Amendment freedoms

need breathing space to survive, government may

regulate in the area only with narrow specificity.”).”

NEA contends that on review of a facial challenge,

plaintiffs may prevail only if “there are no constitutional ways

that the statute can be implemented.” This standard applies

only if the statute “implicates no constitutionally protected

conduct.” Village of Hoffman Estates v. Flipside, Hoffman

Estates, Inc., 455 U.S. 489, 494-95, 102 S.Ct. 1186, 1191, 71

L.Ed.2d 362 (1982); United States v. Wunsch (In re Swan), 84

F.3d 1110, 1119 (9th Cir.1996). When a law implicates free

speech, a “more stringent vagueness test” should apply.

Hoffman, 455 U.S. at 499, 102 S.Ct. at 1193; see also Wunsch,

84 F.3d at 1119.

NEA’s primary contention is that the vagueness of

the “decency and respect” provision is not an issue. In

its view, Congress did not compel NEA to add this

elesent to the standard for judging grant applica-

tions, and the NEA elected not to add it. The standard

therefore remains as it was before the amendment:

the sole criteria for judging grant applications are

“artistic excellence and artistic merit.”

NEA reads the “decency and respect” amendment

as requiring only that the Chairperson “tak/e] into

consideration general standards of decency and re-

spect for diverse beliefs and values” when promulgat-

ing regulations and procedures for judging grant

applications. 20 U.S.C. § 954(d)(1) (emphasis added).

According to NEA, the Chairperson did address Con-

gress’s concern that decency and respect for diverse

beliefs and values be considered in funding decisions,

and concluded no change in the regulations was nec-

essary because the NEA’s governing statute requires

advisory panels with diversified membership to re-

view applications and make recommendations to the

National Council." The Chairperson reasoned that

because advisory panels were composed of members

chosen to reflect a wide range of backgrounds and

points of view, the decisions of these panels as to the

artistic excellence and merit of individual applica-

tions would necessarily reflect general standards of

® The statute requires the Chairperson to: “issue regula-

tions and establish procedures . . . to ensure that all panels are

composed, to the extent practicable, of individuals reflecting a

wide geographic, ethnic, and minority representation as well as

individuals reflecting diverse artistic and cultural points of

view... .” 20 U.S.C. § 959%(c).

decency and show respect for the diverse beliefs and

values of the American public.

This interpretation reads § 954(d) as if it had not

heen amended. Congress added the clause at issue—

“taking into consideration general standards of de-

cency and respect”—immediately after the clause

specifying the criteria by which applications are to be

judged—"artistic excellence and artistic merit.”

Read together, these clauses instruct the Chair-

person to ensure that standards of decency and

respect for diverse values are considered when judg-

ing the artistic merit and excellence of an application.

Congress spoke in mandatory terms when it

amended the criteria for judging grant applications:

“the Chairperson shall ensure that ... artistic ¢A«el-

lence and artistic merit are the criteria by wh. h

applications are judged, taking into considerate |

general standards of decency and respect for the

diverse beliefs and values of the American public.” 20

U.S.C. § 954(d) (emphasis added). This language does

not grant the Chairperson broad discretion in estab-

lishing criteria for judging grant applications, as

NEA contends; it actually restricts the Chairper-

son’s discretion by requiring him or her to judge

applications according to standards of “decency and

respect.”"

The dissent suggests this provision merely requires the

NEA to think about standards of decency and respect rather

than to act according to what thoughts of “decency and

respect” might dictate. This suggestion is implausible on its

face and belied by the record. During the period in which the

plaintiffs’ applications ~were being considered, Chairperson

Frohnmayer told his staff that the NEA had to live in a

“political world” and reject some grant applications to

NEA’s reading of § 954(d)(1) is also contrary

to traditional canons of statutory construction. If

§ 954(d)(1) required nothing more than diverse alvi-

sory panels, the “decency and respect” provision

would be redundant in view of § 959(c), also adopted as

part of the 1990 amendments, which expressly re-

quires that advisory panels reflect diversity. See

Freytag v. Commissioner, 501 U.S. 868, 877, 111 S.Ct.

2631, 2638, 115 L.Ed.2d 764 (1991) ( “Our cases consis-

tently have expressed ‘a deep reluctance to interpret

a statutory provision so as to render superfluous

other provisions in the same enactment.) (citation

omitted).” ,

And turning to the legislative history, as we do to

interpret an ambiguously worded statute, makes it

clear that Congress intended to change the standard

NEA applied in judging applications for funding, not

simply to ask the NEA to consider the problem. NEA

had been attacked for funding controversial artists

and art works. Criticism had focused on a series of

photographs by Robert Mapplethorpe objected to as

homoerotic images, and on a photograph by Andres

Serrano criticized as blasphemous. The “decency and

respect” provision was enacted in direct response to

this controversy and was specifically designed to

prevent the funding of similar art works. Members of

“reassure [the NEA’s] constituency.” (Supplemental Excerpts

of Record 148).

S See supra note 6.

® NEA’s argument that its interpretation of § 954(d)(1)

does not render the “decency and respect” provision redun-

dant because under NEA’s interpretation the Chairman was

not compelled to make any change in the standard at all,

necessarily fails with our rejection of NEA’s interpretation of §

954(d)(1).

10a

Congress noted that the “decency and respect” provi-.

sion would prevent the funding of similar works in the

future.” 136 Cong. Rec. H9410-57 (Oct. 11, 1990).

In the words of Representative Henry, author of

the provision: “[{TJhis substitute includes language

in the heart of the grant making ... process. We add to

the criteria of artistic excellence and artistic merit, a

shell, a screen, a viewpoint that must be constantly

taken into account on behalf off] the American

public... .” 186 Cong. Rec. H9417 (Oct. 11. 1990).

Representative Henry described the provision as

“new language now in the grant procedure itself

which mandates that in the awarding of funds, in the

award process itself, general standards of decency

must be accorded.” 136 Cong. Rec. H9457 (Oct. 11,

1990). In the same vein, Representative Coleman, co-

sponsor of the bill, said: “[WJe have added language

. which underscores that the decisions of artistic

excellence must take into consideration general stan-

dards of decency and respect for the diverse beliefs

and values of the American public. Works which

deeply offend the sensibilities of significant portions

of the public ought not to be supported with public

funds.” 136 Cong. Rec. H9410 (Oct. 11, 1990).

In concluding that Congress intended to include the

criteria of “decency and respect” in the standard for

judging grant applications, we reject NEA’s conten-

tion that § 954(d)(1) is to be read as a compromise

between legislators who wanted to impose explicit

content restrictions upon funding and those who

wanted to impose no “decency and respect” restric-

“” Mapplethorpe’s and Serrano’s works were also referred

to during debates on NEA’s budget. See, e.g., 135 Cong. Rec.

H3637, H3640 (July 12, 1989).

lla

tion at all, and agreed simply to identify “decency and

respect” as an area of concern but require no further

action by NEA. No proposal submitted to Congress

would have permitted funding with no content restric-

tion at all. The dispute was not over whether NEA

should be free to fund indecent or disrespectful art,

but over the way in which the new limitation would be

imposed: whether Congress should specify categories

of art that could not be funded or instruct NEA to

consider general standards of “decency and respect”

in judging the artistic merit of a grant application.

Congress settled on the latter approach.

We also reject NEA’s argument that Chevron

U.S.A., Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694

(1984), requires deference to NEA’s construction of

its statutory mandate. NEA’s construction of the

statute as permitting the Chairperson to rely upon

greater diversity in advisory panel membership in

lieu of a change in the criteria for judging grant

applications is not a “permissible” or—“reasonable”

one to which deference is required. Jd. at 843-45, 104

S.Ct. at 2782-83. Moreover, NEA itself did not in

practice adopt the interpretation of the “decency and

respect” provision it advocates in this litigation. In a

meeting held on December 14 and 15, 1990, the Chair-

person and National Council considered a number of

proposals to implement the “decency and respect”

provision. They did not question their obligation

under § 954(d)(1) to judge grant applications according

to “general standards of decency and respect for the

- diverse beliefs and values of the American public.”

Instead, to satisfy this new obligation, NEA officials

adopted the approach of having the Chairperson in-

struct advisory panel members to bring their own

12a

definitions of these terms “to the table” and make

them “part of the deliberative process.” Minutes of

the December 1990 Retreat of the National Council

on the Arts at 21, S.E.R. at 23.

NEA contends that even if § 954(d)(1) requires it to

judge grant applications according to general stan-

dards of decency and respect, the Chairperson could

by regulation implement this standard in a way that

would obviate the vagueness problem. However, the

NEA has failed to present a narrowing construction

that is consistent with the language and purpose of

the statute, and “we will not rewrite a... . law to

conform it to constitutional requirements.” Virginia

». American Booksellers Ass’n., 484 U.S. 383, 397, 108

S.Ct. 636, 645, 98 L.Ed.2d 782 (1988); see also Heckler

». Mathews, 465 U.S. 728, 741, 104 S.Ct. 1387, 1396, 79

L.Ed.2d 646 (1984) (“The canon favoring constructions

of statutes to avoid constitutional questions does

not. . . license a court to usurp the policymaking

and legislative functions of duly elected representa-

tives.”).

NEA suggests the Chairperson could apply § 954(d)

(1) by rejecting applications for funding of projects

that are obscene under the standard announced in

Miller v. California, 413 U.S. 15, 24-25, 93 S.Ct. 2607,

2614- 16, 37 L.Ed.2d 419 (1973)—a standard that passed

the vagueness test in Hamling v. United States, 418

U.S. 87, 110-16, 94 S.Ct. 2887, 2904-07, 41 L.Ed.2d 590

(1974). However, the proposed construction would

render redundant a separate prohibition against fund-

ing projects determined to be obscene, subsection (2)

l3a

of section 954(d)."" See Freytag, 501 U.S. at 877, 111

S.Ct. at 2638. Congress adopted the “decency and re-

spect” provision because it was broader and had a

different meaning than the provision prohibiting the

funding of obscene art.” Moreover, the NEA’s pro-

posed construction would be contrary to the express

intent of Congress that determinations of obscenity

be made by the courts and not by NEA."

N 20 U.S.C. § 954(d)(2) reads:

Such regulations and procedures shall clearly indicate

that obscenity is without artistic merit, is not protected

speech, and shall not be funded. Projects, productions,

workshops, and programs that are determined to be

obscene are prohibited from receiving financial assis-

tance under this subchapter from the National Endow-

ment for the Arts.

NEA argues the suggested regulation would not render

section 954(d)(2) redundant because the latter applies only to

material “determined to be obscene” by a court. This

argument does not affect the other reasons stated in the text

for the invalidity of the hypothetical regulation.

& See 136 Cong. Rec. H9457 (Oct. 11, 1990) (Statement of

Rep. Henry) (“[The decency and respect provision] is much

broader than all the obscenity language which we have been

debating about... .[G]iven the Miller versus California stan-

dard, anything that has artistic merit is not by legal definition

obscene. So, how can we seek to address the problem that we

heard from our constituents? We put general decency require-

ments into the act.”).

“% “The term ‘determined to be obscene’ means deter-

mined, in a final judgment of a court of record and of compe-

tent jurisdiction in the United States, to be obscene.” 20 U.S.C.

§ 952(j). See 136 Cong. Rec. H9676 (Oct. 15, 1990) (statement of

Rep. Weiss) (“Is not one of the problems also that whereas the

Williams/Coleman [amendment] provides for the obscenity

determination to be made by the courts, in the Regula amend-

ment the determination would have to be made by NEA and

l4a

NEA also seems to suggest the Chairperson might

avoid the vagueness problem by adopting the defini-

tion of “indecent communication” promulgated by the

Federal Communication Commission and applying the

standard only to works intended for children." This

construction is precluded by Congress’s explicit re-

fusal to include the FCC’s definition of indecency in s

954(d)(1)." Congress considered the definition inap-

propriate for the arts, even if appropriate for broad-

that in itself would be unconstitutional, an abrogation of first

amendment rights.”); 136 Cong. Rec. H9411 (Oct. 11, 1990)

(statement of Rep. Richardson) (“The legislation that we have

in front of us says very clearly that the NEA may not fund

obscenity and the determination of obscenity is left to the

courts not politicians, not bureaucrats. But the courts, among

juries of average people.”).

4 ~The NEA refers to a 1989 statute that prohibits any per-

son from knowingly using the telephone to make “any indecent

communication for commercial purposes which is available to

any person under 18 years of age or to any other person

without that person’s consent... .” 47 U.S.C, § 223(b)2)(A).

The FCC defined “indecent communication” as “the deserip-

tion or depiction of sexual or excretory activities or organs in a

patently offensive manner as measured by contemporary

standards for the telephone medium.” IJnformation Providers’

Coalition v. F.C.C., 928 F.2d 866, 874 (9th Cir. 1991) (holding

regulation is not unconstitutionally vague).

% When Congress enacted the “decency and respect” pro-

vision, it rejected a rival amendment, the Regula amendment.

The Regula amendment would have required the NEA to

judge grant applications according to the decency standard

articulated in F.C.C. v. Pacifica Found., 438 U.S. 726, 731-22,

98 S.Ct. 3026, 3030-31, 57 L.Ed.2d 1073 (1978)—the same

standard adopted by the FCC in the “dial-a-porn” context. See

Information Providers’ Coalition, 928 F.2d at 874 (noting that

the FCC’s definition of “indecent communication” was lifted

from the broadcast regulation at issue in Pacifica ).

l5a

casting.” Moreover, unlike the statute implemented

by the FCC’s regulation, § 954(d)(1) is not aimed

solely at indecent speech harmful to minors, but

requires the NEA to judge all grant applications

according to both “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). Nothing in § 954(d)(1) or its legislative his-

tory suggests the NEA may choose to apply the “de-

cency and respect” provision to some funding applica-

tions and not to others or that it may ignore the

“respect” criterion when it does apply the provision.

Cc.

NEA and the dissent argue the “decency and re-

spect” provision is not subject to a vagueness chal-

lenge because it does not regulate conduct directly

but merely subsidizes speech. Although the need for

fair warning may be less when a statute does not

directly regulate conduct, the need for specific stan-

dards to prevent arbitrary and discriminatory applica-

tion of provisions that touch upon speech may be even

greater when a statute subsidizes speech and the risk

that the provision on its face will inhibit speech

remains. See Grayned, 408 U.S. at 108, 92 S.Ct. at

2298; Bullfrog Films, Inc. v. Wick, 847 F.2d 502, 514

(9th Cir.1988) (holding void for vagueness a regula-

tory provision exempting from import duties certain

* 136 Cong. Rec. H9680 (Oct. 15, 1990) (statement of Rep.

Coleman) (“(T)he Regula amendment is in fact imposing a

standard created by the Supreme Court to protect children

listening to the radio, and he is applying it to everyone,

including adults, by his amendment. .. . Coming out over the

airwaves is one thing. Going to a theater performance is

another.”).

l6a

types of written materials); Big Mama Rag, Inc. v.

United States, 631 F.2d 1080, 1039 (D.C. Cir. 1980)

(holding void for vagueness a tax exemption for educa-

tional and charitable organizations)."

NEA also argues that the decency provision is not

subject to a vagueness challenge because it merely

directs the Chairperson to promulgate regulations

and establish procedures to govern applications for

funding; such regulations and procedures may be

subject to the void-for-vagueness test, but the

direction to the Chairperson to establish them is not.

This argument rests on the interpretation of § 954(d)

(1) rejected earlier. Section 954(d)(1) is not a broad

grant of regulatory authority which the Chairperson

may implement in a discretionary manner, but a

directive to the NEA to judge grant applications

according to standards of “decency and respect.”

"Our conclusion is not affected by Rust v. Sullivan, 500

U.S. 173, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991) and Regan v.

Taxation with Representation, 461 U.S. 540, 108 S.Ct. 1997, 76

L.Ed.2d 129 (1983). Neither case involved a vagueness chal-

lenge. Moreover, in Bullfrog Films we held a duty exemption

void for vagueness while recognizing the general principles

announced in Regan. And, as we discuss more fully in Part II,

Rust is of limited applicability in light of the reasoning of

Rosenberger v. Rector & Visitors of the Univ. of Virginia, —

US. ——, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995), differentiat-

ing government programs that encourage private speech from

government programs that use private speakers “to transmit

specific information pertaining to [government] program|s}.”

Id, at ——, 115 S.Ct. at 2519. The NEA is a quintessential ex-

ample of a government program designed to encourage private

speech, rather than one that seeks to use private individuals for

a particular government purpose, such as the dissent’s example

of commissioning an artist to create a bust of Lincoln for

display in a public building.

17a

** &

The “decency and respect” provision was enacted to

prevent the funding of particular types of art. To that

end, it places a mandatory duty on the Chairperson to

ensure that grant applications are judged according

to “general standards of decency and respect for the

diverse beliefs and values of the American public.”

The Chairperson has no discretion to ignore this

obligation, enforce only part of it, or give it a cramped

construction. Rather, the Chairperson, Council, and

advisory panels must examine each grant application

to determine if it comports with “general standards of

decency” and shows “respect for diverse beliefs and

values” as they subjectively understand these terms.

The record indicates this is exactly how the Chair-

person and Council interpreted the provision prior to

this litigation.

So construed, the “decency and respect” provisio

violates due process because “no tes ee of sania

IS specified at all,” Coates v. City of Cincinnati, 402

U.S. 611, 614, 91 S.Ct. 1686, 1688, 29 L.Ed.2d 214

(1971), and the statute thus provides no “ascertainable

standard for inclusion and exclusion.” Smith v.

Goguen, 415 U.S. 566, 578, 94 S.Ct. 1242, 1249, 39

L.Ed.2d 605 (1974). Without doubt, persons “of com.

mon intelligence must necessarily guess at [the]

meaning and differ as to [the] application” of the

terms “decency” and “respect.” See Connally v.

General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126

127, 70 L.Ed. 322 (1926). These terms are inherently

ambiguous, varying in meaning from individual to

individual. See Smith, 415 U.S. at 573, 94 S.Ct. at

1247 (“[W]hat is contemptuous to one . . . may be a

work of art to another.”); Coates, 402 U.S. at 614, 91

18a

S.Ct. at 1688 (“Conduct that annoys some people does

not annoy others.”); Cohen v. California, 403 U.S. 15,

25, 91 S.Ct. 1780, 1788, 29 L.Ed.2d 284 (1971) (“[O)ne[’s]

vulgarity is another’s lyric.”). The content of the

term “diverse beliefs and values of the American

public” is also impossible to define. The individual

members of a pluralistic society, and particularly our

own, have a great variety of beliefs and values, largely

unascertainable. See Bullfrog Films, 847 F.2d at 513.

Since it is not susceptible to objective definition,

the “decency and respect” standard gives rise to the

danger of arbitrary and discriminatory application.”

* The dissent suggests that it is untenable to find the

“decency” and “respect” criteria impermissibly vague without

also holding unconstitutional the statute’s provision that

“artistic excellence and artistic merit are the criteria by which

applications are judged.” 20 U.S.C. § 954(d)(1). The short

answer is that appellants have challenged only the “decency”

and “respect” criteria, and therefore only these criteria are

before us. The application of the “void for vagueness” doctrine

to the criteria of “artistic excellence and artistic merit” may

present quite different considerations.

One obvious difference may be the extent to which the two

sets of criteria implicate the policy concerns underlying the

“void for vagueness” doctrine. See generally Bullfrog Films,

S47 F.2d at 512 (vague laws are objectionable because they

“trap the innocent by not providing fair warning,” invite

arbitrary and discriminatory enforcement, and discourage the

exercise of constitutional rights). A second difference that

may affect the outcome is the context in which the criteria are

applied and the characteristics of the decision makers. Fund-

ing applications are reviewed by advisory panels composed of

artists and “lay individuals who are knowledgeable about the

arts.” 20 U.S.C. § 959(c)(2). Recommendations of the advisory

panels are reviewed by the National Council of the Arts, which

is composed of persons to be selected “from among the private

citizens of the United States who (A) are widely recognized for

19a

It grants government officials power to deny an appli-

cation for funding if the application offends the offi-

cials’ subjective beliefs and values. Inevitably, NEA’s

decision not to fund a particular artist or project as

indecent or disrespectful will depend in part on who is

judging the application and whether that official

agrees with the artist’s point of view. Under such a

grant of authority, funding may be refused because of

the artist’s political or social message or because the

art or the artist is too controversial. This danger is

especially pronounced because a vague statute effec-

tively shields decisions from review. Where First

Amendment liberties are at stake, such a grant of

authority violates fundamental principles of due proc-

ess.

their broad knowledge of, or expertise in, or for their profound

interest in, the arts and (B) have established records of

distinguished service, or achieved eminence, in the arts.” 20

U.S.C. § 955(b).

Such decision makers possess an expertise in determining

“artistic excellence and artistic merit” that will guide their

application of these criteria; they have no corresponding

expertise in applying such free-floating concepts as “decency”

and “respect.” As then-NEA Chairperson Frank Hodsoll

testified, “I don’t see any way for a Federal panel . . . expert

in the arts, not expert in community standards .. . to make

determinations for the entire Nation as to what is acceptable or

what is not going to be patently offensive.” Reauthorization of

Foundation on the Arts and the Humanities Act of 1965, Joint

Hearings Before the Subcomm. on Select Education & the

Subcomm. on Post-secondary Education of the Comm. on

Education and Labor, 99th Cong., Ist Sess. 552 (1985).

20a

Our holding that § 954(d)(1) is unconstitutionally

vague effectively disposes of this case. However, in

view of the dissent’s argument that the government

may restrict the content of speech it funds, we briefly

explain why the First Amendment's” prohibition on

content- and viewpoint-based restrictions provides an

alternate ground for our decision.

“It is axiomatic” that under the First Amendment,

“the government may not regulate speech based on its

substantive content or the message it conveys.”

Rosenberger, __. U.S. at __, 115 S.Ct. at 2516; see

also Action for Children’s Television v. F.C.C., 58

F.3d 654, 659 (D.C. Cir. 1995). A content-based re-

striction on speech is therefore presumed unconstitu-

tional, Rosenberger, __ U.S. at ____, 115 S.Ct. at

2516, and must be subjected to “ ‘the most exacting

scrutiny.” Texas v. Johnson, 491 U.S. 397, 412, 109

S.Ct. 2533, 2544, 105 L.Ed.2d 342 (1989) (quoting Boos

v. Barry, 485 U.S. 312, 321, 108 S.Ct. 1157, 1164, 99

L.Ed.2d 333 (1988)). To survive this scrutiny, the gov-

ernment must advance a compelling interest served

by its regulation of the content of protected speech,

and the regulation must be narrowly tailored to serve

that interest. Sable Communications v. F.C.C., 492

U.S. 115, 126, 109 S.Ct. 2829, 2836, 106 L.Ed.2d 93

(1989); Denver Area Educ. Telecommunications

Consortium, Inc. v. F.C.C., _ US. ‘ , 116

S.Ct. 2374, 2385, 135 L.Ed.2d 888 (1996) (government

Art is protected by the First Amendment. As the Su-

preme Court noted in Miller v. California, “|t\he First Amend-

ment protects works which, taken as a whole, have serious

literary, artistic, political, or scientific value.” 413 U.S. at 34,

93 S.Ct. at 2620.

2la

may directly regulate speech “to address extraordi-

nary problems, where its regulations are appropri-

ately tailored to resolve those problems without

imposing an unnecessarily great restriction on

speech”); Action for Children’s Television, 58 F.3d at

659.

The presence of government funding alters this

framework somewhat. The government may make

content-based choices “when it is the speaker or when

it enlists private entities to convey its own message.”

Rosenberger, __ U.S. at ___, 115 S.Ct. at 2518.

Thus, the Supreme Court has upheld regulations that

granted tax deductions for veterans’ groups but not

for other charitable groups engaged in lobbying, see

Regan v. Taxation With Representation, 461 U.S.

540, 545-48, 103 S.Ct. 1997, 2000-02, 76 L.Ed.2d 129

(1983), and barred recipients of federal family plan-

ning funds from providing information on abortion.

Rust v. Sullivan, 500 U.S. 173, 200, 111 S.Ct. 1759,

1776, 114 L.Ed.2d 233 (1991). As the Court explained

in Rust, “when the government appropriates public

funds to establish a program it is entitled to define

the limits of that program.” Jd. at 194, 111 S.Ct. at

1773.

Government funding does not invariably justify

government control of the content of speech, however.

In Rust, the Court cautioned that its holding would

not apply to public fora or to universities, which

occupied “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 Government funds is_ restricted.”

Rust, 500 U.S. at 200, 111 S.Ct. at 1776.

22a

In addition, Rust and Rosenberger identify two

related contexts in which the government may sub-

sidize speech only if it does so in a way that is

viewpoint-neutral. Neutrality may be required be-

cause the area is a “traditional sphere of free expres-

sion,” Rust, 500 U.S. at 200, or because the govern-

ment has declared its intention to “encourage a diver-

sity of views from private speakers.” Rosenberger,

___ U.S. at __, 115 S.Ct. at 2519. Both approaches

support the district court’s conclusion that govern-

ment funding of the arts, in the circumstances of this

case, must be viewpoint- neutral.

As the district court explained, the arts, no less

than the university, are “at the core of a democratic

society's cultural and political vitality,” Finley, 795

F. Supp. at 1473. The district court’s analysis is full

and cogent, and we need not repeat it here.”

Similarly, Congress has clearly indicated the NEA’s

purpose is to support a diverse array of artistic

expression. Even the most cursory review of the

NEA’s enabling statute reveals this intent. In its

findings, Congress emphasized that a democracy

must “honor and preserve its multi-cultural artistic

heritage as well as support new ideas” and declared

its intent “to help create and sustain ... a climate

encouraging freedom of thought, imagination, and

*” NEA contends the district court erred by extending

Rust to the arts funding context, arguing the Rust exceptions

are limited to “special places” and “special relationships.” This

argument is foreclosed by Rosenberger, which took a much

broader view of the First Amendment's applicability to

subsidized speech. See Rosenberger, _-.:; U.S. at ___, 115 S.Ct.

at 2517 (university’s student activities fund, while not a

traditional physical forum, was subject to First Amendment

constraints).

23a

inquiry.” 20 U.S.C. § 951(10), (7). The Senate Report

accompanying the legislation emphasized that “free-

dom of artistic and humanistic expression” was to be

given “the fullest attention” and that “[clonformity

for its own sake is not to be encouraged, and ... no

undue preference should be given to any particular

style or school of thought or expression.” See S.Rep.

No. 300, 89th Cong., Ist Sess. 4 (1965). The House

reaffirmed this view in adopting the 1985 amendments

to the NEA’s governing legislation, urging NEA to be

“more responsive to funding programs that represent

the many traditions in our heritage and the full

cultural diversity of our citizens. ... [T]he [funded]

programs should be open and richly diverse, reflect-

ing the ferment of ideas which has always made this

Nation strong and free.” H.R. Rep. No. 274, 99th

Cong., Ist Sess. 13, reprinted _in 1985 U.S.C.C.A.N.

1055, 1058. The NEA and it programs were created to

encourage diverse private speech and not, as the

dissent suggests, to engage in “speech for hire.”

The First Amendment prohibits the government

from “regulating speech when the specific motivating

ideology or the opinion or perspective of the speaker

is the rationale for the restriction.” Rosenberger,

—__ US. at ____, 115 S.Ct. at 2516 (citing Perry Educ.

Ass'n v. Perry Local Educators’ Ass’n, 460 U.S. 37,

46, 103 S.Ct. 948, 955, 74 L.Ed.2d 794 (1983)); see

Johnson, 491 U.S. at 414, 109 S.Ct. at 2545 (“If there

is a bedrock principle underlying the First Amend-

ment, it is that the government may not prohibit the

expression of an idea simply because society finds the

idea itself offensive or disagreeable.”). Even when the

government is funding speech, it may not distinguish

between speakers on the basis of the speaker’s view-

point or otherwise “aif{m] at the suppression of

24a

dangerous ideas.” Regan, 461 U.S. at 548, 103 S.Ct. at

2002 (quoting Cammarano v. United States, 358 U.S.

498, 513, 79 S.Ct. 524, 533, 3 L.Ed.2d 462 (1959)); see

Hannegan v. Esquire, Inc., 327 U.S. 146, 158-59, 66

S.Ct. 456, 462-63, 90 L.Ed. 586 (1946),

Therefore, we cannot agree with NEA’s assertion

that the “decency and respect” provision does not re-

flect viewpoint discrimination” In Rosenberger, the

Supreme Court found viewpoint discrimination in a

university regulation that “select[ed] for disfavored

treatment those student journalistic efforts with

religious editorial viewpoints.” __ U.S. at a

S.Ct. at 2517. Central to the court’s decision was the

fact that under the regulation, an y topic treated from

a religious perspective would be denied funding. See

id. (“Religion . . . provides . . . a specific premise,

a perspective, a standpoint from which a variety of

subjects may be discussed and considered. The pro-

hibited perspective, not the general subject matter,

resulted in the refusal to make third-party pay-

ments.”). Here too, it is the treatment of a subject,

not the subject itself, that is disfavored. Two depic-

tions of the same subject matter—an American flag,

for example—could be treated differently if NEA

believed one depiction symbolized an “indecent” per-

spective or demonstrated disrespect for “the diverse

beliefs and values of the American public,” and the

other did not.

=! NEA and the dissent rely on two cases, Advocates for

the Arts v. Thomson, 532 F.2d 792 (1st Cir. 1976), and

Piarowski v. Illinois Community College Dist. 515,759 F.2d 625

(7th Cir. 1985). Both cases are distinguishable. Moreover, both

were decided before Rosenberger, and to the extent they con-

flict with this most recent teaching on viewpoint discrimina-

tion, are not persuasive.

25a

The dissent argues we have erred in applying the

body of law for regulation of speech and generally

available entitlements to prizes. According to the

dissent, since the NEA grants are a prize given to a

select few, rather than a generally available benefit,

the government can choose to support only a certain

viewpoint. The Supreme Court explicitly rejected a

similar argument by the University in Rosenberger.

As the Court explained, “[tJhe government cannot

justify viewpoint discrimination among private

speakers on the economic fact of scarcity.” __ U.S.

at ___, 115 S.Ct. at 2519. Although NEA awarded

only 88 grants from an applicant pool of 5,168, it can-

not provide those scarce grants to favor a particular

viewpoint. See id. at - , 115 S.Ct. at 2519-20

(rejecting the University’s argument that “scarcity

would give the State the right to exercise viewpoint

discrimination that is otherwise impermissible”).

NEA contends the “decency and respect” provision

is permissible because it can be implemented in a

viewpoint-and content-neutral way. As we have

~ On similar grounds, NEA urges us not to reach plain-

tiffs’ First Amendment claims. However, we disagree with

NEA’s assertion that the district court’s First Amendment

decision was “obviously premature” because it rested on

assumptions about how the Chairperson would implement

$ 954(d)(1)’s “decency and respect” provision. Under the

interpretation originally proposed by NEA, the statute was

implemented when the Chairperson, taking “decency and

respect” into consideration, decided no changes in the applica-

tion process were needed. We rejected this interpretation in

Part I(A), supra, and NEA now argues we should avoid the

First Amendment issues because “there is no way to predict

what the Chairperson’s new manner of implementing the

statute would be.” Plaintiffs bring a facial challenge, however.

Although NEA is entitled to promulgate regulations interpret-

26a

explained, however, § 954(d)(1) on its face requires

NEA to take “decency” and “respect” into account in

considering grant applications. Like the funding re-

striction at issue in Rosenberger, the “decency and

respect” provision clearly focuses on the content of

the speech at issue; it “has a speech-based restriction

as its sole rationale and operative principle.” Rosen-

berger, __ U.S. at __, 115 S.Ct. at 2519.

The “decency and respect” provision authorizes

viewpoint discrimination, an “egregious form of con-

tent discrimination.” Rosenberger, _. U.S. at __,

115 S.Ct. at 2516. Because the government has made

no attempt to articulate a compelling interest served

by the provision,” § 954(d)(1) cannot survive strict

scrutiny.”

ing the statute, we are not obligated to withhold judgment

while the agency does so.

“ Amici suggest Congress may have wished to avoid re-

quiring taxpayers to fund work they found offensive. How-

ever, neither protecting people from offensive and indecent

speech nor protecting the taxpayer from unwanted expendi-

tures is a compelling interest sufficient to justify content-based

restrictions on speech. See F.C.C. v. Pacifica Found., 438 U.S.

726, 745, 98 S.Ct. 3026, 3038, 57 L.Ed.2d 1073 (1978) (“[T)he fact

that society may find speech offensive is not a sufficient reason

for suppressing it.”); Sable, 492 U.S. at 126, 109 S.Ct. at 2836

(First Amendment protects speech that is “indecent but not

obscene”); F.C.C. v. League of Women Voters, 468 U.S. 364, 385

n. 16, 104 S.Ct. 3106, 3120 n. 16, 82 L.Ed.2d 278 (1984) (tax-

payers’ opposition to expenditure of government funds cannot

“be invoked to justify a congressional decision to suppress

speech”).

“4 The district court concluded § 954(d)(1) was unconstitu-

tionally overbroad because it was a content-based restriction

that “swe[pt] within its ambit speech and artistic expression

which is protected by the First Amendment.” Finley, 795 F.

27a

The “decency and respect” provision of § 954(d)(1) is

void for vagueness under the Fifth Amendment, and

impermissibly restricts plaintiffs’ First Amendment

rights as well.

AFFIRMED.

KLEINFELD, Circuit Judge, dissenting:

I respectfully dissent.

First Amendment law has taken some odd turns

lately. We now live in a legal context prohibiting

display of a cross or menorah on government prop-

erty. American Jewish Congress v. City of Beverly

Hills, 90 F.3d 379 (9th Cir.1996), Separation of

Church and State Committee v. City of Eugene, 93

F.3d 617 (9th Cir.1996). But if a cross is immersed in

urine, a government grant cannot be withheld on the

ground that the art would offend general standards of

decency and respect for the religious beliefs of most

Americans. The government, under today’s decision,

cannot even consider “general standards of decency

and respect for the diverse beliefs and values of the

American public” when it gives artists grants. Yet

we penalize private employers for slowness in firing

employees who do not show decency and respect for

other employees. See Steiner v. Showboat Operating

Company, 25 F.3d 1459 (9th Cir. 1994). This self-

contradictory silliness is not built into the Bill of

Rights. The First Amendment does not prohibit the

free exercise of common sense.

Supp. at 1476. Although we frame our discussion in terms of

strict scrutiny, we agree with the district court’s conclusion.

28a

Artists, and for that matter, non-artists, are con-

stitutionally entitled to express themselves _inde-

cently and disrespectfully toward the beliefs and

values of as much of the American public as they like.

Indecency sometimes helps to communicate an idea

effectively, and it is constitutionally protected. See

Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29

L.Ed.2d 284 (1971). Lenny Bruce’s monologues needed

offensive indecency to accomplish their legitimate

artistic objective. The same language that gave rise

to liability in Steiner was essential to Allen Gins-

berg’s artistic expression in Howl and Kaddish. The

great Modigliani nudes are frankly erotic and focus

on the models’ pubic hair; our Constitution unques-

tionably protects them from censorship. Less artisti-

cally distinguished attempts to communicate by

means of offensiveness and indecency are also entitled

to First Amendment protection. Molly Bloom’s so-

liloquy, Aristophanes’ jokes about passing gas,

Shakespeare’s double entendres, the indecent kiss in

Chaucer’s Miller's Tale, and countless works by

lesser artists, such as Samuel Clemens’ /60/ and

Vladimir Nabakov’s Lolita, are all part of the ancient

artistic tradition of using the impolite or indecent in

art. Every general art history textbook reproduces

and discusses Edouard Manet’s Luncheon On the

Grass, a painting of a nude woman looking at the

artist while two fully clothed men sit next to her and

talk to each other. The content and viewpoint doubt-

less offend, but the art history books are constitution-

ally protected regardless. There can be no constitu-

tional excuse for allowing the government to censor

art on grounds of indecency or offensiveness. I hope

that it is still as clear as it was when Cohen came

down that anyone in America, artist or not, has a

29a

constitutional right to express himself indecently and

offensively.

That offensive or indecent expression cannot be

censored does not mean that the government has to

pay for it. By drawing the line between private ex-

pression and government conduct, we preserve liberty

for individual expression, while preserving democracy

for governmental decisions. Any time government

enters a previously private sphere of conduct, the line

becomes blurred, and the issues difficult. Govern-

ment subsidy of art was an easy issue when the

Medicis hired artists—the Medicis could freely im-

pose their preferences. But when a democratic gov-

ernment pays artists to stick their thumbs in the

public’s eye, the public naturally becomes annoyed,

and attempts to exercise its ordinary authority in a

democracy to control through Congress how tax

monies are spent.

Whether government can consider content and

viewpoint depends on whether the money it gives out

is generally available to all who meet some basic

standard, or whether it is a prize given to a select few.

Only 88 out of 5168 applicants for Visual Artists

Fellowships won grants in fiscal year 1994. 1994

Annual Report, National Endowment for the Arts

10. Applying for an NEA arts grant is not like apply-

ing for welfare, social security, a tax exemption, or a

student activity grant. NEA grants are prizes for the

fortunate few, not entitlements.

The case at bar does not involve government cen-

sorship. If Congress had prohibited artists from ex-

pressing themselves indecently or disrespectfully,

the Constitution would make such a law null and void.

The NEA statute before us is not such a law. It does

not restrict what artists do. It restricts what the

30a

NEA can do. This case is about whether the Ameri-

can people can require a government agency to con-

sider, in giving grants to very few of the many artists

in the country, “general standards of decency and

respect for the diverse beliefs and values of the

American public.”

Our decision today creates a conflict with the only

other circuits to have confronted a similar issue.

Advocates for the Arts v. Thomson, 532 F.2d 792 (Ist

Cir.), cert. denied, 429 U.S. 894, 97-S.Ct. 254, 50

L.Ed.2d 177 (1976). In Advocates, New Hampshire

denied an NEA grant to a literary magazine because

the governor and state arts commission thought a

poem it published was indecent. The First Circuit,

rejecting the First Amendment challenge, explained

that denial of a grant was not suppression of speech,

and the grant selection process necessarily discrimi-

nated based on content:

|PJjublic funding of the arts seeks “not to abridge,

restrict, or censor speech, but rather to use

public money to facilitate and enlarge” artistic

expression. A disappointed grant applicant can-

not complain that his work has been suppressed,

but only that another’s has been promoted in its

stead. The decision to withhold support is un-

avoidably based in some part on the “subject

matter” or “content” of expression, for the very

assumption of public funding of the arts is that

decisions will be made according to the literary

or artistic worth of competing applicants.

Id. at 795. Advocates suggests that every disap-

pointed grant applicant has the same First Amend-

ment right of self-expression, but that does not mean

that every disappointed grant applicant has a First

3la

Amendment claim. /d. at 795-96. Suppose the NEA

arts panel discriminates by viewpoint against an

excellent artist whose work is too conventional for

the panel’s tastes—an artist with the superb

technique of a Robert Mapplethorpe and the vision of

a Norman Rockwell. And suppose it discriminates

against another whose art is too indecent and

offensive. And another, whose viewpoint is

interesting but whose technique is less than

excellent. Do all have First Amendment claims under

the majority decision? Only the one who creates

indecent art? Only the ones with excellent

technique? It is impossible to have a highly selective

grant program without denying money to a large

amount of constitutionally protected expression,

decent and indecent.

The Seventh Circuit ruled similarly to the First

Circuit, in Piarowski v. Illinois Community Col-

lege, 759 F.2d 625 (7th Cir.1985). The chairman of the

art department hung his stained glass panels of such

subjects as “the naked rump of a brown woman, and

sticking out from (or into) it a white cylinder” in the

college’s gallery near the main entrance to a heavily

trafficked building. The college told him to move

three panels to a less heavily trafficked fourth floor

display space, after receiving “complaints from stu-

dents, cleaning women, and black clergymen.” /d. at

‘628. The main entrance space was especially desir-

able, but not a public forum, and not available to all.

The artist lost his case.

The Seventh Circuit distinguished between what

an artist is free to create, and what the government

must display.

32a

If Claes Oldenberg, who created a monumental

sculpture in the shape of a baseball bat for display

in a public plaza in Chicago, had created instead a

giant phallus, the city would not have had to

ad it next to a heavily trafficked thorough-

are.

Id. at 630,

Advocates points out the resemblance of a govern-

ment grant program to a government auditorium

providing space for artistic performances. If it is a

public forum, then neutrality is required by the First

Amendment. Advocates, 532 F.2d at 796. But if the

space is available only to a select few invited exhibi-

tors as in Piarowski, then the government, already

excluding much constitutionally protected art, need

not be neutral toward offensive or indecent art. That

is why, in the Piarowski example, Chicago would be

free to discriminate in favor of baseball bats and

against phalluses in the hypothetical display.

The majority tries to distinguish the First Circuit

and Seventh Circuit cases on the ground that they

came down before Rosenberger v. Rector & Visitors of

University of Virginia, _ U.S. __, 115 S.Ct. 2510,

132 L.Ed.2d 700 (1995), and Rosenberger now prohibits

the content or viewpoint discrimination they allowed.

That misreads Rosenberger. The university which

lost Rosenberger paid expenses for virtually all

student organizations, but denied the money to plain-

tiffs because they expressed a Christian viewpoint. In

its zeal to steer clear of the establishment clause, the

university, like the school district in Lamb's Chapel

v. Center Moriches Union Free School District, 508

U.S, 384, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993),

overlooked the free speech clause.

dda

Rosenberger holds that a university which makes

money generally available for student groups’ ex-

penses, to encourage a diversity of views rather than

to express its own, cannot discriminate against an

applicant based on that applicant’s viewpoint. Rosen-

berger teaches that when government makes a benefit

generally available to all within a diverse class, it

cannot make an exception based on what a particular

applicant wishes to say. This extends Lamb’s Chapel

v. Center Moriches Union Free School District, 508

U.S. 384, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993), from

space to money, thereby preventing discrimination

against speech on the ground that it was religious. A

public forum can be created by money, not just real

estate. This is because speech is often disseminated

by print and electronics, rather than by standing in

front of people and talking to them. Cf. Buckley v.

Valeo, 424 U.S. 1, 19, 96 S.Ct. 612, 634, 46 L.Ed.2d 659

(1976).

We and the District of Columbia Circuit had de-

cided, before Rosenberger, what might be classified as

money-as-a-public-forum cases. In Bullfrog Films,

Inc. v. Wick, 847 F.2d 502 (9th Cir.1980), we held that

customs duties exemptions for any educational or

cultural materials could not exclude propaganda films

based on their content and viewpoint. In Big Mama

Rag, Inc. v. United States, 631 F.2d 1030 (D.C.Cir.

1980), the District of Columbia Circuit held that a tax

exemption generally available to educational organi-

zations could not be denied based on a regulation

requiring full and fair exposition of facts enabling a

reader to draw an independent conclusion. Under

these cases, all applicants in the class were entitled

to the financial benefit from the government, unless

the content of their speech was contrary to govern-

34a

ment standards. By contrast, in the case at bar, no

applicant is entitled to the financial benefit.

The case at bar would be analogous to Rosenberger

(and I would join the majority in rejecting the “de-

cency and respect” clause as unconstitutional), if the

NEA gave out grants to virtually all artists except

for those whose work violated “general standards of

decency and respect for the diverse beliefs and values

of the American public.” Arts grants would then be

the financial equivalent of a tax credit for all artists,

and under Rosenberger, Big Mama Rag and Bullfrog,

thé financial benefit could not be conditioned on a

vague and content- or viewpoint-based criterion like

the “decency and respect” formula. Much as parade

permits may be allocated on a first come first served

principle, but not to favor particular viewpoints, arts

grants would have to be allocated on some neutral

principle, such as first come first served, or random

selection. Cf. Rosenberger, ___. U.S. at __, 115 S.Ct.

at 2519.

It is not the case that whenever the government

gives money to someone for talking, the recipient may

say, with the government’s money, whatever he or

she likes. The government can hire people to say what

it wants, and require them to say it.

{[W]hen government appropriates public funds to

promote a particular policy of its own it is enti-

tled to say what it wishes. When the government

disburses public funds to private entities to con-

vev a governmental message, it may take legiti-

mate and appropriate steps to ensure that its

message is neither garbled nor distorted by the

grantee. Rosenberger, __ U.S. at __, 115 S.Ct.

at 2519 (explaining Rust v. Sullivan, 500 U.S.

35a

173, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991)). But

when the government gives money to encourage a

diversity of views from private speakers in a class

not defined by what they say, such as university

students, it “may not silence the expression of

selected viewpoints.” Id.

The majority misreads Rosenberger’s rejection of the

University of Virginia’s argument that scarcity of

money justified viewpoint discrimination. Rosen-

berger, __ U.S. at - , 115 S.Ct. at 2519-_20.

The context was a program in which grants wen? to

virtually all speakers but those with a Christian

viewpoint, not to everyone except for a few prize-

winners. The Court explained that the Student

Activities Fund at the University of Virginia “is a

forum more in a metaphysical than in a spatial or

geographic sense, but the same principles are

applicable.” Id. at ____, 115 S.Ct. at 2517. This is the

concept which I have expressed perhaps more crudely,

as teaching us that a public forum can be created by

money, not just real estate. Had the University of

Virginia set up a prize fund, for student groups which

contributed the most to the betterment of secular

civic life in Charlottesville, the Christian student

groups would have had no constitutional claim of

discrimination had they lost. Had the NEA grant

program been structured to award grants to virtually

all artists, then the plaintiffs in the case at bar would

be entitled to prevail under Rosenberger. The major-

ity uses principles for entitlement and regulation

cases in a prize case. The principles are by and large

right, the application wrong.

When the government gives a prize rather than an

entitlement, it necessarily discriminates by content

36a

and viewpoint. Congress decided to foster the arts,

but many Congressmen were doubtless aware of art-

ists’ tendency since the romantic period to challenge

the conventional. Thus Congress imposed several

content and viewpoint criteria for arts grants. These

include “artistic excellence,” promoting cultural

diversity, and reflecting the culture of inner cities,

rural areas, and tribal communities.” Congress

e| (c) Program of contracts, grants-in-aid, or loans to

groups and individuals for projects and productions; tradi-

tionally underrepresented recipients of financial assistance.

The Chairperson, with advice of the National Council on the

Arts, is authorized to establish and carry out a program of

contracts with, or grants-in-aid or loans to, groups or, in

appropriate cases, individuals of exceptional talent engaged in

or concerned with the arts, for the purpose of enabling them to

provide or support—

(1) projects and productions which have substantial

national or international artistic and cultural signifi-

cance, giving emphasis to American creativity and

cultural diversity and to the maintenance and encour-

agement of professional excellence;

(2) projects [and] productions, meeting professional

standards or standards of authenticity or tradition,

irrespective of origin, which are of significant merit and

which, without such assistance, would otherwise be un-

available to our citizens for geographical or economic

reasons;

(3) projects [and] productions that will encourage and

assist artists and enable them to achieve wider distribu-

tion of their works, to work in residence at an educa-

tional or cultural institution, or standards of professional

excellence;

(4) projects and productions which have substantial

artistic and cultural significance and that reach, or

37a

reflect the culture of, a minority, inner city, rural, or

tribal community;

(5) projects and productions that will encourage public

knowledge, education, understanding, and appreciation

of the arts;

(6) workshops that will encourage and develop the ap-

preciation and enjoyment of the arts by our citizens;

(7) programs for the arts at the local level;

(8) programs that enhance managerial and organiza-

tional skills and capacities;

(9) projects, productions, and workshops of the kinds

described in paragraphs (1) through (8) through film,

radio, video, and similar media, for the purposes of

broadening public access to the arts; and,

(10) other relevant projects, including surveys, re-

search, planning, and publications relating to the pur-

poses of this subsection. ....

(d) Application for payment; regulations and proce-

dures. No payment shall be made under this section except

upon application therefor which is submitted to the National

Endowment for the Arts in accordance with the regulations

and procedures established by the Chairperson. In establishing

such regulations and procedures, the Chairperson shall ensure

that—

(1) artistic excellence and artistic merit are the criteria

by which applications are judged, taking into considera-

tion general standards of decency and respect for the

diverse beliefs and values of the American public; and

(2) applications are consistent with the purpose of this

section. Such regulations and procedures shall clearly

indicate that obscenity is without artistic merit, is not

protected speech, and shall not be funded. Projects,

productions, workshops, and programs that are deter-

mined to be obscene are prohibited from receiving

financial assistance under this Act from the National

38a

thereby discriminated against non-artistic expres-

sions of opinion, artistic expression favoring cultural

homogeneity, and art reflecting suburban culture.

Norman Rockwell and Ansel Adams could reasonably

complain, were they applying for grants, that the

statute constitutes viewpoint discrimination against

their artistic expression.

Of course the statutory criteria are vague. “De-

cency and respect for the diverse beliefs and values of

the American people” is vague. “Artistic excellence”

and “artistic merit” are also vague, and could not be

proper criteria for censorship or discrimination in an

entitlement program. The constitution would not

allow the government to censor expression on the

ground that it was not art, or though art, was not

excellent art. But this does not mean that the gov-

ernment cannot condition prizes on the excellence of

art.

Philosophers have no way to distinguish art from

non-art, or good art from bad art. There is not even a

useful vocabulary for most of the distinctions we need

to identify “artistic excellence”:

In certain kinds of writing, particularly in art

criticism and literary criticism, it is normal to

come across long passages which are almost

completely lacking in meaning. Words like ro-

Endowment for the Arts. The disapproval or approval

of an application by the Chairperson shall not be con-

strued to mean, and shall not be considered as evidence

that, the projects, production, workshop, or program for

which the applicant requested financial assistance is or is

not obscene.

20 U.S.C. § 954(d) (emphasis added). The 1990 amendment

added the emphasized language to 20 U.S.C. § 954(d).

39a

mantic, plastic, values, human, dead, sentimen-

tal, natural, vitality, as used in art criticism, are

strictly meaningless, in the sense that they not

only do not point to any discoverable object, but

are hardly ever expected to do so by the reader.

When one critic writes, “The outstanding feature

of Mr. X’s work is its living quality,” while

another writes, “The immediately striking thing

about Mr. X’s works is its peculiar deadness,” the

reader accepts this as a simple difference of

opinion. If words like black and white were in-

volved, instead of the jargon words dead and

living, he would see at once that the language

was being used in an improper way.

George Orwell, Politics and the English Language,

in A Collection of Essays 156, 161-162 (emphasis in

original) (essay dated 1946).

The most used art history text points out the

vagueness of the entire NEA grant scheme:

But if we must give up any hope of a trustworthy

rating scale for artistic quality, can we not at

least expect to find a reliable, objective way to

tell art from non-art? Unfortunately, even this

rather more modest goal proves so difficult as to

be almost beyond our powers.

H.W. Janson, History of Art 9 (1962). It took a cen-

tury and a half for most critics to agree that photo-

graphy could be art. Some have not yet admitted jazz

to the pantheon, many, rock and roll. Some disagree

on whether Bernstein’s West Side Story is art or

mere entertainment, let alone excellent art. If the

constitutional law principle prohibiting vague laws

relating to speech applied to NEA grants, then we

40a

could no more let the government give out grants for

excellent art, than let it censor literary and artistic

expressions which in the opinion of some customs

agent or policeman (or art critic) were bad art.

The majority says that the vagueness of “artistic”

and “excellence” are constitutionally permissible, un-

like “decency” and “respect,” because the people mak-

ing the decisions are experts. Maj. op. at 680-81, n. 18.

By that principle, it would be permissible to let the

government censor speech with vague laws, so long as

the censors were experts in the field being censored.

The argument is wrong, because the panel members’

purported expertise does not give fair warning to

artists of what will get them grants and what will not.

Nor are the purported experts’ choices sufficiently

constrained by “artistic” and “excellence” to prevent

arbitrariness. Quite a few NEA grants have gone to

activities which many experts would deem not

excellent, or not art. There is no principled way to

keep the arts grants but strike the decency and

respect clause. Either Congress can provide for arts

grants with vague criteria, or it cannot provide for

them at all.

Artists seeking grants have no property right to

them, and their liberty to express themseives as they

choose is not regulated by the grants. Vagueness law

has been developed under the Fifth Amendment to

protect people from the taking of liberty or property

without fair notice of what they may not do, and

without protection against arbitrary enforcement.

See Kolender v. Lawson, 461 U.S. 352, 357, 108 S.Ct.

1855, 1858, 75 L.Ed.2d 903 (1983). First Amendment

vagueness doctrine applies to government action

relating to speech if the government regulates speech

or conditions a generally available benefit upon the

dla

content of speech. See Rust v. Sullivan, 500 U.S, 173,

200, 111 S.Ct. 1759, 1776, 114 L.Ed.2d 288 (1991)

(“conditions attached to expenditures of Government

funds”); Gentile v. State Bar of Nevada, 501 U.S.

1030, 1051, 111 S.Ct. 2720, 2732, 115 L.Ed.2d 888 (1991)

(“prohibition against vague regulations of speech”).

An artist applying for an NEA grant has no formula,

and is not entitled to one, for the painting or

performance which will produce a grant. None of the

purposes of vagueness law apply to prizes.

The majority construes the statute as though it

prohibited the NEA from awarding grants to offensive

or indecent art. I doubt it would matter if the statute

said that. Congress may be free to condition these

searce NEA grants on content. If Congress hired a

sculptor to create a bust for the Capitol, it could tell

him to do a bust of Abraham Lincoln, and prohibit him

from doing a bust of John Wilkes Booth. Or it could

tell the sculptor to make busts only of people who had

served in the Senate, or perhaps only of “great” Sena-

tors, despite the vagueness of that criterion. That

much is clear under Rust. Just as Fulbright grants

to foreign students may be conditioned on “directing

their talents and initiative into channels which

will make them more effective leaders,” 22 U.S.C.

§ 2454(e)(3), prizes for only a few applicants, to which

no one is entitled, may be conditioned on vague

criteria designed to serve particular congressional

objectives.

Even if we were to suppose that a specific prohibi-

tion of NEA grants based on content or viewpoint

would be unconstitutional, the majority has found

prohibitions in the statute which are not there. We

should not read a statute as though it prohibited what

it does not, and then hold it unconstitutional for the

42a

imaginary prohibition. The statute does not say that

artists must “takle] into consideration general

standards of decency and respect for the diverse

beliefs and values of the American public.” It says

“the Chairperson” of the National Endowment of the

Arts must use “artistic excellence” and “merit” as

criteria, “taking into consideration,” ete.

The words “take into consideration” mean take into

consideration, no more, no less. The word “consider”

in its ordinary usage means “to reflect on” or “think

about with a degree of care or caution.” See Webster's

Third New International Dictionary 483 (1981). In

deciding whether to buy a new car, one takes into

consideration the expense, but that does not mean

one always decides against buying a new car. A re-

quirement that “due consideration and weight shall

be given” to something does not make the thing an

absolute requirement. See Heirens v. Mizell, 729

F.2d 449, 460 (7th Cir.1984) (parole board had to con-

sider a prisoner’s record but could decide against

parole despite a good record). A court of appeals ap-

points a federal public defender “after considering

recommendations from the district court.” 18 U.S.C.

§ 3006A(¢)(2)(A). That means that we must give seri-

ous thought to the district court’s recommendations,

but we are not required to follow them. P

Likewise, the NEA might think seriously about

Ginsberg’s extensive use of vulgar language in How!

and Kaddish, and decide against funding readings of

his poems in junior high schools. But after consider-

ing the indecency and offensiveness, the NEA could

lawfully fund readings in colleges. It might likewise

decide for or against funding showings of artistically

excellent but highly offensive works such as Leni

Riefenstahl’s Nazi propaganda movie, Triumph of the

Will, or D.W. Griffith's artistically important movie

Birth of a Nation, which glorified the Ku Klux Klan.

If someone on an advisory panel said “I don't think we

can consider the indecency or disrespect for Ameri-

can values of the art—we should fund the grants

because the presentations will be of excellent art, and

that is all we should consider,” another panel member

could persuasively reply, “we can and must consider

decency and respect—Congress said we should.”

That is what the “decency and respect” language

means, and that is all it means. Chairman Frohn-

mayer and the members of NEA grants panels

probably would have figured out that they lived in a

“political world,” see maj. op. at p. 676, n. 7, and that

the NEA budget might be affected by what it did with

the money, even if Congress had not given them the

decency and respect criterion.

By contrast with the “take into consideration”

language, Congress said that obscenity “shall not be

funded.” 20 U.S.C. § 954(d)(2). That language, unlike

“taking into consideration,” prohibits funding. The

language we now hold unconstitutional tells the

Council and panels to think seriously about “general

standards of decency and respect for the diverse

beliefs of the American public” when they give away

the public’s money.

The artists in the program before us are not

affected by the statutory grant criterion in their use

of indecency or disrespect in their art done

independently of their NEA grants. If the NEA were

restricted from giving grants to artists who, outside

the grants, had ever done indecent or offensive work,

the considerations would be different, possibly leading

to a different result. Cf. Federal Communications

Commission v. League of Women Voters, 468 U.S.

dda

364, 399-400, 104 S.Ct. 3106, 3127-28, 82 L.Ed.2d 278

(1984) (acceptance of the government’s money

unconstitutionally required the recipient to conform

to government speech requirements outside the time

paid for by the government). The government cannot

use its power to condition subsidies as a means of

enforcing orthodoxy in areas traditionally open to the

public for expressive activity. Rust, 500 U.S. at 199,

111 S.Ct. at 1776; Regan, 461 U.S. at 548, 108 S.Ct. at

2002.

A prize for some art naturally encourages other

artists to try to produce art of the sort which they

think will get them the prize, including conformity to

the content and viewpoint preferences of those who

award the prizes. The members of the grant commit-

tees will probably balance their personal tastes

against what they fear might lead Congress to cut

NEA funding. If government selects a few artists and

gives them money, it will unavoidably influence the

work of many more:

I can seldom do positive good to another person

without limiting him. I can, it is true, simply

give him money, but even in this extreme case,

where I seem to place no bonds on him, he inevita-

bly faces the question of what conduct on his part

will lead me to give money to him again.

George J. Stigler, The Intellectual and the Market

Place 95 (1963). This is a problem of governmental in-

volvement in what used to be a private activity, not a

problem of censorship. The United States govern-

ment has so much money and power that its slightest

intervention to do good has the unfortunate effect of

changing the entire context in which people act. But

unless we are to blind ourselves to the distinction

45a

between a relatively few arts prizes, and socializing

the art industry, we cannot treat the incentive

afforded by a prize as the equivalent of censorship.

The artists who brought this lawsuit may have

difficulty (the record does not say) attracting enough

patrons to support their art. Finley alleges in her

complaint that she is a “performance artist whose

performances address such issues as the sexual

stereotyping and objectification of women, rape and

other forms of violence against women, and the power-

lessness and victimization of women and others in

our society.” Fleck alleges that his performances

“openly challenge traditional notions of gender and

sexuality” and “address AIDS, birth, death, religion,

consumption in a capitalist society, and the environ-

ment.” Hughes alleges that her work “addresses

issues of women’s power in society and women’s

sexuality, including lesbian relationships.” Miller

alleges that his “often autobiographical work ad-

dresses the relation between the individual and soci-

ety, and particularly concerns social activism on is-

sues affecting gay people, including AIDS.” These

works may lack the mass market of art appealing to

more broadly shared sentiments.

There is no constitutional principle, however,

which requires the government to replace the market

and pump up the incomes of less popular artists.

Government support of the arts is a policy choice, and

perhaps a good one, but it is not constitutionally

compelled. Lack of market appeal is an obstacle “not

of [the government’s] own creation.” Regan v. Taxa-

tion with Representation Wash., 461 U.S. 540, 549-50,

103 S.Ct. 1997, 2003, 76 L.Ed.2d 129 (1983). So long as

the artists are free to perform, people are free to

patronize their performances, and the artists are not

46a .

deprived of government money to which artists gener-

ally are entitled, the artists’ freedom of expression is

not abridged by content or viewpoint discrimination

in the grant process.

The only practical guarantee of artistic freedom is

private money.

The leadership of individuals or groups who can

back their beliefs financially is particularly es-

sential in the field of cultural amenities, [and] in

the fine arts. . . . If minority views are to have a

chance to become majority views, it is necessary

not only that men who are already highly es-

teemed by the majority should be able to initiate

action but that representatives of all divergent

views and tastes should be in a position to support

with their means and their energy ideals which

are not yet shared by the majority.

Friedrich A. Hayek, The Constitution of Liberty 125

(1960, 1978). With diverse sources of private money,

majority preferences need not affect an artist’s free-

dom or fortune, because only one or a few patrons or

purchasers may suffice.

First Amendment law protects individual liberty

from government, not the government from the

people. The error in today’s decision comes from

forgetting what the First Amendment is for. The

NEA “decency and respect” criterion controls, not

artists, but rather a government department, the

NEA. By treating legislative control over a part of

government as though it were an attempt to control

artists’ expression, we confound the distinction

between popular control of government, and govern-

ment control of individuals. Majorities do not have

the right to control free expression by individuals.

47a

They most certainly do have the right to control their

government. Today’s decision does not protect art-

ists from government. It protects the government

from control by the elected representatives of the

people.

dda

APPENDIX B

UNITED STATES DISTRICT COURT

C.D. CALIFORNIA

No. CV 90-5236 AWT

KAREN FINLEY, JOHN FLECK, HOLLY HUGHES,

Tim MILLER AND NATIONAL ASSOCIATION OF

ARTISTS’ ORGANIZATIONS, PLAINTIFFS

NATIONAL ENDOWMENT FOR THE ARTS;

AND JOHN E. FROHNMAYER, IN His OFFICIAL

CAPACITY AS CHAIRPERSON NATIONAL ENDOWMENT

FOR THE ARTS, DEFENDANTS

June 9, 1992

MEMORANDUM OPINION

TASHIMA, District Judge.

Plaintiffs are four individual performance artists

(“individual plaintiffs”) and the National Association

of Artists’ Organizations (*NAAO”). Individual plain-

tiffs allege that defendants the National Endowment

for the Arts (“NEA”) and John E. Frohnmayer

49a

(“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 applica-

tion 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 “de-

cency 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 contend that: (1) the NEA’s funding

decisions are unreviewable because they are com-

mitted to agency discretion by law; (2) venue is im-

proper 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.”

IL BACKGROUND

A. 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

! Frohnmayer resigned as Chairperson of the NEA after

this action was commenced. No successor has been appointed.

Anne-Imelda Radice is the acting Chairperson.

50a

appropriate for the federal government to help create

and sustain not only a climate encouraging freedom of

thought, imagination and inquiry but also the mate-

rial conditions facilitating the release of . . . crea-

tive talent.” 20 U.S.C. § 952(5).2 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 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 Presi-

dent, 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 Chairper-

son is prohibited from approving or disapproving any

grant application until he or she has received the

recommendation of the Council on such application.’

2 The Arts, Humanities, and Museums Amendments of

1990 (the “1990 Amendments”), Pub.L. No. 101-512, § 101, 104

Stat. 1961, made a minor grammatical change in and redesig-

nated this clause as subsection (7). See 20 U.S.C. § 952(7).

Because the funding denials occurred prior to the 1990 Amend-

ments, citations are to the pre-amendment version of the

statute, except where otherwise indicated.

% In the vase of an application involving $30,000, or less, the

Chairperson may approve or disapprove such request without

first receiving the recommendation of the Council if such

action is taken pursuant to the terms of a delegation of

5la

20 U.S.C. § 955(f). The Council, in turn, is required

to meet at the call of the Chairperson, and 14 mem-

bers 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 de-

terminations. 1990 Amendments, Pub.L. No. 101-512,

§ 103(b), 104 Stat. 1963, codified at 20 U.S.C. § 954(d).

B. Political context of the denials

At least since 1989 and continuing through to the

present, the NEA has been the target of congres-

sional 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 heter-

osexual practices.° For example, in the Spring of

authority from the Council to the Chairperson, and each such

action is reviewed by the Council. 20 U.S.C. § 955(f).

4 The 1990 Amendments made mandatory the Chair-

person’s use of advisory panels to review funding applications.

See 20 U.S.C. § 959(c).

5 The facts in this section are drawn from the complaint,

which must be taken as true for purposes of defendants’ motion

for judgment on the pleadings. See, e.g., General Conference

Corp. of Seventh-Day Adventists v. Seventh-Day Adventist

52a

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 Ser-

rano’ entitled “Piss Christ,” which was criticized as

sacrilegious. E.g., 135 Cong. Rec. $5594 (daily ed.

May 18, 1989) (statement of Sen. D’Amato); 135 Cong.

Rec. S5805 (daily ed. May 31, 1989) (statement of Sen.

Gorton). These two exhibits were frequently cited by

members of Congress in debates during the Summer

of 1989 over budget allocations for the NEA. E.g., 135

Cong. Rec. H3637, H3640 (daily ed. Jul. 12, 1989)

(statements of Reps. Rohrabacher and Dannemeyer).

These funding debates were followed by a series of

demands by certain members of Congress for informa-

tion on NEA-funded artists whose work addressed

political and sexual issues. In one instance, a senator

requested that the General Accounting Office investi-

gate apparent violations of § 304 of the FY 1990 NEA

appropriations bill.’ The senator listed among such

Congregational Church, 887 F.2d 228, 230 (9th Cir.1989), cert.

denied, 493 U.S. 1079, 110 S.Ct. 1134, 107 L.Ed.2d 1039 (1990).

® Serrano is one of the many amici curiae in this case.

That section provided, in part:

None of the funds authorized to be appropriated for the

National Endowment for the Arts or the National

Endowment for the Humanities may be used to pro-

mote, disseminate, or produce materials which in the

judgment cf the National Endowment for the Arts or

the National Endowment for the Humanities may be

considered obscene, including but not limited to, depic-

tions 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.

53a

“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. |

would hope that with the procedures I am implement-

ing at the arts endowment, images such as these

would not again be funded.”

C. Denial of plaintiffs’ applications and viola-

tions of the Privacy Act

In the midst of this political maelstrom, individual

plaintiffs each applied for funding under the Perform-

ance Artists Program. These applications were

among the 90 applications reviewed by the Perform-

Department of the Interior and Related Agencies Appropria-

tions Act, 1990, Pub. L. No. 101-121, § 304(a), 103 Stat. 701, 741.

The NEA’s administration of § 304 was struck down in Bella

Lewitzky Dance Found. v. Frohnmayer, 754 F. Supp. 774 (C.D.

Cal. 1991).

* The general counsel of the NEA, Julianne Ross Davis,

sent a number of explanatory letters to Henry Wray, Senior

Associate General Counsel, General Accounting Office, on this

subject. The summary judgment record contains six such

letters, dated Apr. 3, May 2, 9, 24 & 30, and Jul. 5, 1990.

54a

ance 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 unneces-

sary 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 recom-

mended 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

® As a matter of practice and custom, recommendation by a

peer review panel has been tantamount to the granting of an

application.

55a

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 indi-

vidual 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 con-

sented to any of these disclosures.

D. 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 confi-

dentiality of their grant applications.

After Congress amended 20 U.S.C. § 954(d) to re-

quire 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

56a

Amendment vagueness and First Amendment

grounds.

Il. DEFENDANTS’ MOTION FOR JUDGMENT ON

THE PLEADINGS”

A. First Amendment claims

The amended complaint alleges that defendants

injured plaintiffs’ First Amendment interests by de-

nying their applications because of the content of

their past artistic expression and by failing to provide

a written statement of reasons for the denial.

1. 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

” Judgment on the pleadings is proper when the moving

party clearly establishes on the face of the complaint, accepting

its allegations as true, that it is entitled to judgment as a matter

of law. Hal Roach Studios, Inc. v. Richard Feiner & Co..

896 F.2d 1542, 1550 (9th Cir. 1990). All inferences reasonably

drawn from these facts must be construed in favor of the

responding party. General Conference Corp. of Seventh-Day

Adventists, 887 F.2d at 230.

57a

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.” Speiser v. Randall, (357 U.S. 513, 526,

78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460 (1958)). Such

interference with constitutional rights is

impermissible.

Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct.

2694, 2697, 33 L.Ed.2d 570 (1972). The Supreme Court

recently reaffirmed this rule in Rust v. Sullivan, 500

U.S. 173, 111 8.Ct. 1759, 114 L.Ed.2d 233 (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.

Id. 111 S.Ct. at 1774 (emphasis in original).

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. See Rust, id. (no unconstitutional condi-

tion imposed where grant recipients remain free to

engage in abortion-related speech with non-grant

funds); compare Perry v. Sindermann, 408 U.S. at

597, 92 S.Ct. at 2697 (termination of state university

employee because he criticized the university's

regents constitutes an unconstitutional condition).

58a

However, defendants’ contention that the present

case does not fall within this proscription is simply

wrong.

The amended complaint alleges that plaintiffs

applied for funding in a category designed to under-

write performers’ professional growth and develop-

ment, 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 “sub-

sidize” 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 denied 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 claims under the

First Amendment. Perry, id. at 598, 92 S.Ct. at 2698.

Defendants are not entitled to judgment on the

pleadings on this claim.

2. Procedural Safeguards

Individual plaintiffs assert that the procedure used

to deny their applications violates the First Amend-

ment 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 Southeast-

ern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95

S.Ct. 1239, 43 L.Ed.2d 448 (1975), in which the Court

imposed a procedural requirement on the government

where the government acts to impose a prior

59a

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 expres-

sion is unprotected. /d. at 560, 95 S.Ct. at 1247.

Southeastern Promotions does not provide support

for the imposition of the procedural requirements re-

quested by plaintiffs in this case. Because it is un-

supported 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.

B. 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 com-

plies with statutory requirements.

1. Reviewability

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);

Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649,

1655, 84 L.Ed.2d 714 (1985). The Supreme Court has

held that § 701(a)(2)

60a

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.”

Citizens to Preserve Overton Park, Inc. v. Volpe, 401

U.S. 402, 410, 91 S.Ct. 814, 820, 28 L.Ed.2d 136 (1971)

(citation and footnote omitted); Heckler v. Chaney,

470 U.S. at 830, 105 S.Ct. at 1655. 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.” NAACP v. Secretary of Hous. &

Urban Dev., 817 F.2d 149, 157 (ist Cir. 1987)

(emphasis in original).

The version of 20 U.S.C. § 954(c) in effect at the

time plaintiffs’ applications were denied provided that:

The Chairperson, with the advice of the National

Council on the Arts, is authorized to establish

and carry out a program of contracts with, or

grants-in-aid or loans to, groups or, in appropri-

ate cases, individuals of exceptional talent

engaged in or concerned with the arts, for the

purpose of enabling them to provide or support

(1) projects and productions which have sub-

stantial artistic and cultural diversity and the

maintenance and encouragement of professional

excellence;

—

(2) projects and productions meeting profes-

sional standards or standards of authenticity, ir-

respective of origin, which are of significant

merit and which, without such assistance, would

6la

otherwise be unavailable to our citizens for

geographic or economic reasons;

(3) projects and productions that will en-

courage and assist artists and enable them to

achieve wider distribution of their works, to work

in residence at an educational or cultural institu-

tion, or to achieve standards of professional

excellence;

(4) projects and productions which have sub-

stantial artistic and cultural significance and

that reach, or reflect the culture of, a minority,

inner city, rural, or tribal community;

(5) projects and productions that will en-

courage public knowledge, understanding, and ap-

preciation of the arts;

(6) workshops that will encourage and develop

the appreciation and enjoyment of the arts by our

citizens;

my programs for the arts at the local level;

(8) other relevant projects, including sur-

veys, research, planning, and publications relat-

ing to the purposes of this subsection.

These criteria 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

62a

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 “com-

mitted to agency discretion” is inapplicable. See

NAACP, 817 F.2d at 158.

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 fellow-

ships for political reasons, i.e., to appease congres-

sional 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.

2. Procedural violation

Individual plaintiffs also allege that Frohnmayer’s

poll of individual Council members for their respec-

tive 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.”

This section was amended by the 1990 Amendments to

add reporting and record-keeping requirements, but the lan-

guage quoted in the text remains intact. See Pub. L. No.

101-512, § 106, 104 Stat. 1968.

63a

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 re-

sponse, 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” and insist

that this interpretation of the statute is entitled to

deference under Chevron U.S.A., inc. v. Natural

Resources Defense Council, 467 U.S. 837, 104 S.Ct.

2778, 81 L.Ed.2d 694 (1984):

When a court reviews an agency’s construction of

the statute which it administers, it is confronted

with two questions. First, always, is the ques-

tion whether Congress has directly spoken to the

precise question at issue. If the intent of Con-

gress is clear, that is the end of the matter; for

the court, as well as the agency, must give effect

to the unambiguously expressed intent of Con-

gress.[ | If however, the court determines Con-

gress has not directly addressed the precise

question at issue, the court does not simply

impose its own construction on the statute,[ | as

would be necessary in the absence of an

administrative interpretation. Rather, if the

statute is silent or ambiguous with respect to the

specific issue, the question for the court is

whether the agency’s answer is based on a

permissible construction of the statute.[ |

Id. at 842-43, 104 S.Ct. at 2781-82 (emphasis added;

footnotes omitted).

In this case, congressional intent is clear from the

statute itself. First, the use of the words “the

64a

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 recom-

mendation 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 ex-

pressed with language such as “the recommendations

of Council members.”

Further, if Congress intended that Council mem-

bers act individually, and not collegially, in fulfilling

their obligation, there would have been no need to

establish the quorum requirement of § 955(d). Defen-

dants’ 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 suffi-

cient to state a claim upon which relief may be

granted.

C. Privacy Act claim

Individual plaintiffs also allege that the NEA staff

released information to the public from their applica-

tion 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

65a

plaintiffs, (2) the Freedom of Information Act

(“FOIA”) required disclosure of the subject informa-

tion and therefore immunizes defendants against

liability under the Privacy Act, and (3) the informa-

tion disclosed was already a matter of public record

and therefore is not protected by the Privacy Act.

1. Venue

Defendants argue that venue is improper in this

district under the Privacy Act’s venue provision, 5

U.S.C. § 552a(g)(5), as to two individual plaintiffs,

Finley and Hughes, because they do not reside or

have their principal places of business in this district.

The venue statute provides:

An action to enforce any liability created under

this section may be brought in the district court

of the United States in the district in which the

complainant resides, or has his principal place of-

business, or in which the agency records are

situated, or in the District of Columbia, without

- regard to the amount in controversy.

5 U.S.C. § 552a(g)(5).

Relying on cases construing the general venue

statute of 28 U.S.C. § 1391(e),” applicable to actions in

which the United States is a defendant, plaintiffs

Title 28 U.S.C. § 1391(e) provides in relevant part that a

civil action in which a defendant is the United States, or an

officer, employee or agency thereof, may, except as otherwise

provided by law, be brought in any judicial district in which (1)

a defendant in the action resides, (2) a substantial part of the

events or omissions giving rise to the claim occurred, or a

substantial part of property that is the subject of the action is

situated, or (3) the plaintiff resides if no real property is

involved in the action.

66a

argue that venue is proper in this district as to all

plaintiffs because venue is proper as to two of them.

See Exxon Corp. v. FTC, 588 F.2d 895, 899 (3d Cir.

1978) (venue proper under § 1391(e) where at least one

plaintiff resides in the forum district); National Air

Traffic Controllers Ass’n v. Burnley, 700 F.Supp.

1043, 1045 (N.D. Cal. 1988) (same).

Defendants seek to distinguish these cases by

arguing that the general venue statute is broader

than the Privacy Act venue provision. While 28

U.S.C. § 1391(e) provides a different set of venue

possibilities than is provided in 5 U.S.C. § 552a(g)(5),

whether or not the former can be said to be more

liberal than the latter misses the point. The reason-

ing of Exxon Corp. is equally applicable to the

Privacy Act venue provision: “requiring every plain-

tiff in an action against the federal government or an

agent thereof to independently meet [the statutory

venue] standards would result in an unnecessary

multiplicity of litigation” and “[tJhe language of the

statute itself mandates no such narrow construc-

tion.” Exxon Corp., 588 F.2d at 898- 99.

The court holds that in a multi-plaintiff Privacy

Act action, if any plaintiff satisfies the venue require-

ment 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.

2. The FOIA defense

Next, defendants argue that the release of informa-

tion from individual plaintiffs’ files is not actionable

under the Privacy Act because release is required by

FOIA.

67a

The relevant portion of the Privacy Act provides:

No agency shall disclose any record which is

contained in a system of records by any means of

communication to any other person, or to another

agency, except pursuant to a written request by,

or with the prior consent of, the individual to

whom the record pertains, unless disclosure of

the record would be—

* * KK *

(2) required under [FOIA,] section 552 of this

title.

5 U.S.C. § 552a(b)(2)." FOIA, in turn, contains an in-

ternal privacy act of sorts that exempts “personnel

and medical files and similar files the disclosure of

which would constitute a clearly unwarranted inva-

sion of personal privacy” from its disclosure require-

ments. 5 U.S.C. § 552(b)(6) (the “(b) (6) exemption”).

The Supreme Court has construed the (b)(6) exemp-

tion broadly to “cover detailed Government records on

an individual which can be identified as applying to

that individual.” United States Dep’t of State v.

Washington Post Co., 456 U.S. 595, 602, 102 S.Ct.

1957, 1961, 72 L.Ed.2d 358 (1982).

When disclosure of information which applies to a

particular individual is sought from Government

records, courts must determine whether release

There is no dispute that NEA is an “agency” subject to

this provision, or that the information released constitutes a

“record which is contained in a system of records” within the

meaning of this section.

68a

of the information would constitute a clearly

unwarranted invasion of that person’s privacy.

Id. In Washington Post the Court held that a newspa-

per’s request for “documents indicating whether [two

individuals] . . . hold valid U.S. passports” was infor-

mation “contained in personnel, medical or similar

files” and therefore subject to the balancing test re-

quired by the (b)(6) exemption. /d. at 596, 598, 102

S.Ct. at 1959, 1960 (emphasis added)."

The amended complaint alleges that the NEA re-

leased information from individual plaintiffs’ applica-

tion files. Such information clearly “applies to [each

of the] particular individual[s]” to which it corre-

sponds, and thus may not be released under FOIA

without consideration of the competing interests in

personal privacy and public benefit.

3. Publicly available information

Finally, defendants argue that the information

released was already publicly available; therefore,

4 In support of their position, defendants cite Kurzon v.

Department of Health and Human Serv., 649 F.2d 65 (1st Cir.

1981), in which plaintiff sought to compel disclosure under

FOIA of the names and addresses of unsuccessful research

grant applicants. Reversing summary judgment for defen-

dant, the court rejected defendant's argument that such infor-

mation was subject to FOIA’s exemption for “personne! and

medical files and similar files.” The court reasoned that the

(b)(6) exemption “was intended to shield against a variety of

embarrassing disclosures . . . ‘of the same magnitude—as

highly personal or as intimate in nature—as that at stake in

personnel and medical records.’” Jd. at 68, quoting Board of

Trade v. CFTC, 627 F.2d 392, 398 (D.C.Cir.1980). However, in

Washington Post the Supreme Court explicitly rejected Board

of Trade, the case on which Kurzon relied. See Washington

Post, 456 U.S. at 598, 102 S.Ct. at 1959.

69a

that disclosure cannot violate the Privacy Act. See

King v. Califano, 471 F. Supp. 180, 181 (D.D.C. 1979)

(officials who informed press that an Administrative

Law Judge was removed due to severe mental and

emotional problems did not “disclose” the information

within the meaning of the privacy act because that

information was “publicly known prior to . . . publi-

cation”). However, case law in this Circuit is contra.

See Covert v. Herrington, 667 F.Supp. 730, 739 (E.D.

Wash. 1987) (information obtained from public sources

and then released to an outside agency constitutes

“disclosure” within the meaning of the Privacy Act),

affd, 876 F.2d 751 (9th Cir. 1989); see also United

States Dep't of Justice v. Reporters Comm. for Free-

dom of the Press, 489 U.S. 749, 753, 780, 109 S.Ct. 1468,

1471, 1485, 103 L.Ed.2d 774 (1989) (recognizing a cate-

gorical exemption under FOIA for private citizen

“rap sheets,” although the data are compiled from

publicly available documents).

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

Act.

Ill. PLAINTIFFS’ MOTION FOR SUMMARY JUDG-

MENT

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 Amend-

ment on its face. In opposition, defendants argue that

(i) all plaintiffs lack standing to challenge this provi-

sion; (2) the vagueness challenge fails on the merits

because the NEA has implemented a limiting con-

70a

struction 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.

A. Standing

Defendants first argue that plaintiffs do not have

standing to challenge § 954(d) because (1) allegations

of “chill alone” cannot support standing and (2) plain-

tiffs 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.” Valley Forge Christian College

v. Americans United for Separation of Church and

State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70

L.Ed.2d 700 (1982).

Citing Laird v. Tatum, 408 U.S. 1, 13-14, 92 S.Ct.

2318, 2325-26, 33 L.Ed.2d 154 (1972), defendants con-

tend that plaintiffs’ allegation of a “chilling effect” is

insufficient to establish the required “actual or

threatened injury” under the Valley Forge test. In

Laird, a group of citizens sued to enjoin an Army

program that gathered and stored information about

protest marches and demonstrations. The Court

found that Laird plaintiffs lacked standing because

they had simply read about the Army program in the

newspaper and could not explain “the precise con-

nection between the mere existence of the challenged

system and their alleged chill.” Jd. at 13 n. 7, 92 S.Ct.

at 2325 n. 7.

Individual plaintiffs argue that Laird is factually

distinguishable because all individual plaintiffs here

Tila

have, in the past, been denied grants based on the

controversial content of their expression. Also, indi-

vidual 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 de-

fend her work against charges of indecency and ad-

dressed 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 invisi-

ble line of “decency” which would result in forfeiture

of some or all of their 1991 grants and disqualification

for future grants.”

Plaintiffs contend that these facts are analogous to

those presented in Socialist Workers Party v. Attor-

ney General, 419 U.S. 1314, 95 S.Ct. 425, 42 L.Ed.2d

% Applicants are required as part of the application process

to submit an assurance that their projects or productions “will

meet the standards of artistic excellence and artistic merit

required by this subchapter.” 20 U.S.C. § 954(i)4). That stan-

dard now includes a consideration of “general standards of

decency and respect for the diverse beliefs and values of the

American public.” 20 U.S.C. § 954(d)(1)._ In addition, recipi-

ents are required to file an interim report that includes a

description of her or his compliance with “the subchapter”

(which includes the “decency” standard). 20 U.S.C. § 954(i)(3)

(A)(ii).

Grant funds are distributed in installments, and payments

may be suspended if the Chairperson determines that the re-

cipient is not in compliance with § 954 or any other conditions

of the grant. 20 U.S.C. § 954(j). In addition, failure to satisfy

the purposes for which the assistance was provided may be

taken into account in determining whether to provide any sub-

sequent financial assistance. 20 U.S.C. § 959(f)(3)(A).

72a

627 (Marshall, Circuit Justice, 1974). There, Justice

Marshall refused to stay the reversal of an injunction

barring the government from conducting surveillance

at a youth organization conference. He first found

that the plaintiffs had standing to maintain t! e action.

Distinguishing Laird, he held:

In this case, the allegations are much more

specific: the applicants have complained that the

challenged investigative activity will have the

concrete effects of dissuading some YSA dele-

gates from participating actively in the conven-

tion and leading to possible loss of employment

for those who are identified as being in atten-

dance. Whether the claimed “chill” is substantial

or not is still subject to question. The specificity

of the injury claimed by the applicants is

sufficient, under Laird, to satisfy the require-

ments of Article III.

Id. at 1319, 95 S.Ct. at 428.

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 Amend-

ment.

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

73a

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. See Arlington Heights v. Metropolitan

Hous. Dev. Corp., 429 U.S. 252, 264 n. 9, 97 S.Ct. 555,

562 n. 9, 50 L.Ed.2d 450 (1977).

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 stan-

dard creates a cognizable injury to that organization.

Havens Realty Corp. v. Coleman, 455 U.S. 363,

378-79, 102 S.Ct. 1114, 1124, 71 L.Ed.2d 214 (1982)

(alleging injury to organization’s activities and con-

sequent drain on its resources satisfies injury re-

quirement for organization to assert standing in its

own right); see also El Rescate Legal Serv., Inc. v.

Executive Office of Immigration Review, 959 F.2d

742, 748 (9th Cir. 1992) (accord); Spann v. Colonial

Village, Inc., 899 F.2d 24, 27 (D.C. Cir.) (“organization

establishes Article III injury if it alleges that pur-

portedly illegal action increases the resources the

group must devote to programs independent of its suit

challenging the action”), cert. denied, 498 U.S. 980,

111 S.Ct. 508, 112 L.Ed.2d 521 (1990).

Moreover, NAAO satisfies the requirements for

representative standing based on injury to its mem-

bers. First, 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 applica-

tions by uncertainty as to how to comply with the

decency clause. Second, this suit seeks to protect

74a

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. See /nternational

Union, UAW v. Brock, 477 U.S. 274, 282, 106 S.Ct.

2523, 2528, 91 L.Ed.2d 228 (1986) (listing requirements

for representative organizational standing).

B. Statutory Construction

Because the court must avoid deciding a constitu-

tional issue if possible, it is first necessary to deter-

mine whether § 954(d)(1), as amended, can be con-

strued to avoid conflict with constitutional proscrip-

tions.

Defendants advance two possible constructions of

the statute which they contend 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.”

Again, under Chevron, 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 lan-

guage of the statute requires that “general standards

of decency and respect for the diverse beliefs and

75a

values of the American public” be “tak[en] into con-

sideration” in judging 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 congres-

sional intent.” See Chevron, 467 U.S. at 844, 104

S.Ct. at 2782; Railway Labor Executives’ Ass'n v.

ICC, 958 F.2d 252, 256 (9th Cir. 1992) (where con-

gressional intent is ambiguous, the agency’s con-

struction controls “unless it is ‘arbitrary, capricious

or manifestly contrary to the statute”).

First, a construction that this clause “merely im-

plements a method for selecting review panel mem-

bers” 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." See Freytag

ments in the Congressional Record indicates that the “de-

cency” provision was intended to act as a bar to funding

controversial projects or artists. See, e.g., 136 Cong. Rec.

H9410-57 (daily ed. Oct. 11, 1990) (statements by members of

Congress explaining that the “decency” provision would pre-

clude funding of works such as Andres Serrano’s “Piss Christ”

and others that would “deeply offend the sensibilities of

significant portions of the public”).

20 U.S.C. § 959(c) now reads in relevant part:

The Chairperson of the National Endowment for the

Arts shall utilize advisory panels to review applications,

and to make recommendations to the National Council on

the Arts . . . When reviewing applications, such panels

shall recommend applications for projects, productions,

and workshops solely on the basis of artistic excellence and

76a

v. Commissioner, 501 U.S. 868, 111 S.Ct. 2631, 2638,

115 L.Ed.2d 764 (1991) (“Our cases consistently have

expressed ‘a deep reluctance to interpret a statutory

provision so as to render superfluous other provisions

in the same enactment”). Because § 959(c) requires

that the composition of Peer Review Panels reflect

“wide geographic, ethnic, and minority representa-

tion as well as . . . diverse artistic and cultural

points of view,” a construction of the decency provi-

sion 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 congres-

sional intent. It defies logic to argue that explicit

additions to the “artistic merit” standard are merely

implicit in the assessment of artistic merit. Had Con-

gress 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.

C. Vagueness

The Fifth Amendment due process clause re-

quires 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

artistic merit. The Chairperson shall issue regulations and

establish procedures—

(1) to ensure that all panels are composed, to the extent

practicable, of individuals reflecting a wide geographic, ethnic,

and minority representation as well as individuals reflecting

diverse artistic and cultural points of view.

77a

to its application.” Connally v. General Constr. Co.,

269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926).

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 Amend-

ment freedoms by forcing individuals to “steer far

wider of the unlawful zone . . . than if the boundaries

of the forbidden areas were clearly marked.” Gray-

ned v. City of Rockford, 408 U.S. 104, 108- 09, 92 S.Ct.

2294, 2299, 33 L.Ed.2d 222 (1972) (internal quotation

marks omitted); Bullfrog Films, Inc. v. Wick, 847 F.2d

502, 512-13 (9th Cir. 1988).

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. See Smith v. Goguen, 415

U.S. 566, 573, 94 S.Ct. 1242, 1249, 39 L.Ed.2d 605 (1974)

(“what is contemptuous to one [person] may be a work

of art to another”); Cohen v. California, 403 U.S. 15,

25, 91 S.Ct. 1780, 1788, 29 L.Ed.2d 284 (1971) (“one

{person]’s vulgarity is another’s lyric”). 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.” See also Bullfrog Films v.

Wick, 646 F.Supp. 492, 505 (C.D. Cal. 1986) (finding

USIA regulation impermissibly vague because “[(hjow

is one to determine what is ‘misrepresentative’ of an

78a

open, diverse and pluralistic society as is the United

States”), aff'd, 847 F.2d 502 (9th Cir. 1988).

There is no question that persons “of common

intelligence must necessarily guess at [the] meaning

and differ as to [the] application” of § 954(d). Con-

nally, 269 U.S. at 390, 46 S.Ct. at 127. Further, this

provision clearly gives rise to each of the three evils

identified in Grayned: (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 under-

standing of the standard; (2) panelists, the Council,

and the Chairperson are given no guidance in admin-

istering 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 tie

statute because the line is, in effect, imperceptible.

See 408 U.S. at 108-09, 92 S.Ct. at 2299.

As the decency provision fails adequately to notify

applicants of what is required of them or to circum-

scribe NEA discretion, it cannot be given effect

consistent with the Fifth Amendment’s due process

requirement.

D. 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 stan-

79a

dard. Alternatively, plaintiffs contend 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 require-

ment 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 applica-

tions 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 pro-

cess includes review of non-NEA funded works in

more than one category within the NEA’s Theater

Program. In response, defendants have adduced evi-

dence 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 ma-

terial factual dispute, resolution of this issue on

summary judgment would be foreclosed even if agency

practice were a permissible consideration in this

context.”

8 An argument can be made that the decency clause

constitutes a facially unconstitutional condition with respect to

groups, agencies and non-profit organizations that receive

NEA funding. Because the NEA is permitted to fund only up

to 50% of the total cost of any program or project conducted by

a group, agency or non-profit organization, 20 U.S.C. § 954(e)

(groups), § 954(p)(3) (agencies and non-profit organizations),

80a

1. First Amendment interest in artistic expres-

sion funded by the government

As an alternative theory of First Amendment viola-

tion, 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. Sulli-

van 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 gov-

ernment control over the content of expression.” 111

S.Ct. at 1776. The Court cited universities and public

fora as two settings in which First Amendment

values demand government neutrality notwithstand-

ing that in both contexts the government is merely

declining to support speech rather than prohibiting it

altogether. Jd. The Court observed that its prior de-

cisions 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 con-

trol speech within that sphere by means of condi-

tions attached to the expenditure of funds is

any statutory content control over an NEA-supported program

or project necessarily imposes restrictions over a substantial

proportion of non-NEA-funded expression. However, as the

NAAO have not raised this argument, the court does not

address or resolve it.

Sla

restricted by the vagueness and overbreadth

doctrines of the First Amendment.

Id. (citing Keyishian v. Board of Regents, 385 U.S.

589, 603, 87 S.Ct. 675, 683, 17 L.Ed.2d 629 (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 608, 87 S.Ct. at 683.

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:

% In addition, other recent cases suggest that the press is

also an arena in which content controls on subsidies are

prohibited. See, e.g., Leathers v. Medlock, 499 U.S. 439, 111

S.Ct. 1438, 1443-46, 113 L.Ed.2d 494 (1991) (content-based

subsidization of the press through tax exemptions constitutes

First Amendment injury); Arkansas Writers Project, Inc. v.

Ragland, 481 U.S. 221, 229, 107 S.Ct. 1722, 1727, 95 L.Ed.2d 209

(1987) (tax exemption based on content of a_ publication

constitutes First Amendment injury).

82a

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 innova-

tions 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 prefer-

ence should be given to any particular style or

school of thought or expression . .. The stan-

dard should be artistic and humanistic excellence.

S.Rep. No. 300, 89th Cong. Ist Sess. 3-4 (1965) (empha-

sis added).

In addition, the significance of the arts as a “tradi-

tional sphere of free expression . . . fundamental to

the functioning of our society,” Rust, 111 S.Ct. at

1776, is confirmed by the legislative “Declaration of

findings and purposes” that is a part of the NEA’s

authorizing statute. There, Congress stated, in part,

that:

(3) An advanced civilization must not limit its

efforts to science and technology alone, but must

give full value and support to the other great

branches of scholarly and cultural activity in

order to achieve a better understanding of the

past, a better analysis of the present, and a better

view of the future.

83a

(4) Democracy demands wisdom and vision in its

citizens. It must therefore foster and support a

form of education, and access to the arts and the

humanities, designed to make people of all back-

grounds and wherever located the masters of

their technology and not its unthinking servants.

(6) ~The arts and the humanities reflect the high

place accorded by the American people to the

nation’s rich cultural heritage and to the foster-

ing of mutual respect for ‘*¢ diverse beliefs and

values of all persons and g ‘oups.

(7) The practice of art and the study of the hu-

manities require constant dedication and devo-

tion. While no government can call a great artist

or scholar into existence, 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 re-

lease of this creative talent.

(9) Americans should receive in school, back-

ground and preparation in the arts and humani-

ties to enable them to recognize and appreciate

the aesthetic dimensions of our lives, the diver-

sity of excellence that comprises our cultural

heritage, and artistic and scholarly expression.

(10) It is vital to a democracy to honor and

preserve its multicultural artistic heritage as

well as support new ideas, and therefore it is

essential to provide financial assistance to its

artists and the organizations that support their

work.

84a

20 U.S.C. § 951.

It is clear from these legislative findings” that

artistic expression serves many of the same values

central te 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.

The close relationship between academic freedom

and artistic expression was recently set forth in a

statement by participants in a conference sponsored

by the American Association of University Profes-

sors, the American Council on Education, the Asso-

ciation of Governing Boards of Universities and Col-

leges, and the Wolf Trap Foundation:

* These findings were reaffirmed by Congress through the

revision and republication of this section as part of the 1990

Amendments. See Pub. L. No. 101-512, § 101, 104 Stats. 1961-62.

*! The College Art Association is a nationwide, non-profit

organization whose members include 2,000 institutions of

higher education and museums, in addition to 11,600 individual

artists, art historians and museum professionals. It was

founded in 1911 both as a learned society and professional

organization dedicated to promoting the highest standards of

scholarship and teaching in the history and criticism of the

visual arts and to foster the highest levels of technical skill in

teaching and practices of art.

85a

We believe that “essential as freedom is for the

relation and judgment of facts, it is even more

indispensable to the imagination.” . . . Faculty

and students engaged in the creation and presen-

tation of works of the visual and the performing

arts are engaged in pursuing the mission of the

university as much as are those who write, teach,

and study in other academic disciplines. Works of

the visual and performing arts are important both

in their own right and because they can enhance

our experience and understanding of social insti-

tutions and the human condition. Artistic ex-

pression in the classroom, studio and workshop

therefore merits the same assurance of academic

freedom that is accorded to other scholarly and

teaching activities.

Academic Freedom and Artistic Expression, Aca-

deme at 13 (July-Aug. 1990). :

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 plain-

tiffs’ 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 set-

86a

tings, limited public funds are allocated to support

expressive activities, and some content-based deci-

sions are unavoidable. Nonetheless, this fact does not

permit the government to impose whatever restric-

tions 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 per-

missible in a public university setting, but decisions

based on vague criteria or intended to suppress un-

popular expression are not. See Dube v. State Univ.

of New York, 900 F.2d 587, 598 (2d Cir. 1990), cert.

denied, 501 U.S. 1211, 111 S.Ct. 2814, 115 L.Ed.2d 986

(1991); Levin v. Harleston, 770 F.Supp. 895, 921

(S.D.N.Y. 1991); ef. Keyishian, 385 U.S. at 605-606, 87

S.Ct. at 685. Analogously, professional evaluations of

artistic merit are permissible, but decisions based on

the wholly subjective criterion of “decency” are not.

Cf. Cinevision Corp. v. City of Burbank, 745 F.2d

560, 575-77 (9th Cir. 1984) (city may dedicate public

forum to certain categories of expression but may not

deny access to performers based on their political

views or unorthodox manner of expression), cert.

denied, 471 U.S. 1054, 105 S.Ct. 2115, 85 L.Ed.2d 480

(1985).

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 conven-

tional wisdom and values is a cornerstone of artistic

and academic freedom, no less than the rights of sci-

entists funded by the National Institutes of Health.

87a

See Board of Trustees of Leland Stanford Jr. Univ.

v. Sullivan, 773 F.Supp. 472, 478 (D.D.C. 1991).

Therefore, the court holds that government funding

of the arts is subject to the constraints of the First

Amendment.

2. First Amendment injury

Having concluded that public funding of art is

entitled to First Amendment protection, the resolu-

tion of plaintiffs’ challenge is straightforward.

It has 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, 93 S.Ct.

2908, 2915, 37 L.Ed.2d 830 (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. See Board of Airport

Comm'rs v. Jews for Jesus, 482 U.S. 569, 575-76, 107

S.Ct. 2568, 2573, 96 L.Ed.2d 500 (1987).

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

88a

showing of likely and imminent antisocial con-

duct arising from such speech, constitute a

ground for abridging speech.

M.B. Nimmer, Nimmer on Freedom of Speech

§ 2.05{B][1] at 2-30 (1991) (citing Brandenburg v.

Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed2d 430

(1969); Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780,

29 L.Ed.2d 284 (1971)).

The decency clause clearly reaches a substantial

amount of protected speech. In Sable Communica-

tions of Cal., Inc. v. FCC, 492 U.S. 115, 126, 109 S.Ct.

2829, 2836, 106 L.Ed.2d 93 (1989), the Supreme Court

held that “expression which is indecent but not

obscene is protected by the First Amendment.. . .”

See also FCC v. Pacifica Found., 438 U.S. 726, 740, 98

S.Ct. 3026, 3035, 57 L.Ed.2d 1073 (1978) (“prurient

appeal is an element of the obscene, but the normal

definition of ‘indecent’ merely refers to nonconfor-

mance with accepted standards of morality”). The

statute seeks to confine the NEA’s funding approval

only to what is “decent.” Conversely, it seeks 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 expres-

sion will occur. . . .” Dombrowski v. Pfister, 380

U.S. 479, 486, 85 S.Ct. 1116, 1120, 14 L.Ed.2d 22 (1965).

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.

89a

CONCLUSION

For all of the foregoing .-asons, the court denies

defendants’ motion for judgment on the _plead-

ings, except with respect to plaintiffs’ Second Claim.

Further, the court grants plaintiffs’ motion for sum-

mary judgment on the Sixth Claim, on the grounds

that the “decency” clause of 20 U.S.C. § 954(d)(1), on

its face, is void for vagueness under the Fifth Amend-

ment and is overbroad under the First Amendment. A

separate judgment shall be entered on the Sixth

Claim, consistent herewith.

90a

APPENDIX C

UNITED STATES COURT OF APPEALS

NINTH CIRCUIT

No. 92-56028

KAREN FINLEY; JOHN FLECK; HOLLY HUGHES;

Tim MILLER; NATIONAL ASSOCIATION OF

ARTISTS’ ORGANIZATIONS, PLAINTIFFS-APPELLEES

NATIONAL ENDOWMENT FOR THE ARTS; ANNE-IMELDA

RaDICcE,* IN HER OFFICIAL CAPACITY

AS CHAIRPERSON OF THE NATIONAL ENDOWMENT

FOR THE ARTS, DEFENDANTS-APPELLANTS

No. 92-56387

KAREN FINLEY; JOHN FLECK; HOLLY HUGHES;

Tim MILLER; NATIONAL ASSOCIATION OF

ARTISTS’ ORGANIZATIONS, PLAINTIFFS-APPELLEES

NATIONAL ENDOWMENT FOR THE ARTS; ANNE-IMELDA

RapbIce, IN HER OFFICIAL CAPACITY

AS CHAIRPERSON OF THE NATIONAL ENDOWMENT

FOR THE ARTS, DEFENDANTS-APPELLANTS

9la

No. 92-55089

KAREN FINLEY; JOHN FLECK; HOLLY HUGHES;

Tim MILLER; NATIONAL ASSOCIATION OF

ARTISTS’ ORGANIZATIONS, PLAINTIFFS-APPELLEES

NATIONAL ENDOWMENT FOR THE ARTS; ANNE-IMELDA

RADICE, IN HER OFFICIAL CAPACITY

AS CHAIRPERSON OF THE NATIONAL ENDOWMENT

FOR THE ARTS, DEFENDANTS-APPELLANTS

May 1, 1997

ORDER

Before: BROWNING, FERGUSON, and KLEINFELD,

Circuit Judges.

A majority of the panel has voted to deny the peti-

tion for rehearing and to reject the suggestion for

rehearing en banc.

The full court has been advised of the suggestion

for rehearing en banc. An active judge requested a

vote on whether to rehear the matter en banc. The

matter failed to receive a majority of the votes of the

nonrecused active judges in favor of en banc con-

sideration. Fed.R.App.P. 35.

The petition for rehearing is denied and the sug-

gestion for rehearing en banc is rejected.

92a

O’SCANNLAIN, Circuit Judge, joined by KOZINSKI

and KLEINFELD, Circuit Judges,- dissenting from

order rejecting suggestion for rehearing en banc:

This case should be reheard en banc because our

three judge panel split decision conflicts with two

other circuits, is wrong on the merits, and turns the

First Amendment on its head.

The plaintiffs are artists, who, along with 5,164

others, applied for a Visual Arts Fellowship from the

National Endowment for the Arts (“NEA”) in 1994.

The plaintiffs weren’t awarded fellowships (although

88 others were) so they sued, claiming that their

First Amendment rights had been violated because

Congress required the NEA, in addition to judging

applications by “artistic excellence” and “artistic

merit,” to “takfe] into consideration general stan-

dards of decency and respect for the diverse

beliefs and values of the American public.” 20 U.S.C.

§ 954(d). In ruling that the “decency and respect”

provision offends the First Amendment, our divided

court commits three grave errors.

First, the panel majority gave the NEA statute an

implausible construction. According to the panel,

rather than merely take “decency and respect” into

consideration, as the statute says, the NEA must use

“decency and respect” as the decisive criterion fer

awarding grants. Finley v. NEA, 100 F.3d 671, 680

(9th Cir.1996). There simply is no warrant for manu-

facturing such an imagined conflict with the First

Amendment.'

! he panel creates more than an imagined conflict with

two of our sister circuits. See Piarowski v. Illinois Community

College, 759 F.2d 625 (7th Cir.1985); Advocates for the Arts v.

93a

The panel’s second error aggravates the first by

applying the “void for vagueness” doctrine where it

does not belong, and without regard for the purposes

underlying it. A vague law is not as dangerous when

the government is handing out a prize instead of

meting out a punishment. The “decency and respect”

provision neither “trap[s] the innocent,” nor “imper-

missibly delegates basic policy matters to policemen

judges, and juries for resolution on an ad hoc and

subjective basis.” Grayned v. City of Rockford, 408

U.S. 104, 108- 109, 92 S.Ct. 2294, 2299, 33 L.Ed.2d 222

(1972). © tas

_As the panel majority would have it, however

simply because the statute is vague and has some-

thing to do with speech, it must offend the First

Amendment. See Finley, 100 F.3d at 679. In my view

this is wrong: a law must actually threaten or chill

protected speech before we strike it down.

_How does the “decency and respect” provision in-

hibit First Amendment rights? Tellingly, the major-

ity doesn’t say. It merely points to the heightened

need for specific standards when a statute’s provi-

sions “touch upon speech.” Finley, 100 F.3d at 679.

The need “may be even greater when a statute sub-

sidizes speech and the risk that the provision on its

face will inhibit speech remains.” Jd. This confusing

(and doubtful) statement utterly fails to explain how

First Amendment liberties are threatened when the

say aise awards a prize.

e majority might well have thought tha -

ernment award for certain types of a will ee

coerce artists to produce art of that type, thereby

Thomson, 532 F.2d 792 (1st Cir.). cert. deni

: ). : ed, 429 U.S.

S.Ct. 254, 50 L.Ed.2d 177 (1976). sash o in

94a

chilling creation of “other” art. Or it could have

thought that artists cannot be denied a government

benefit because they express themselves in a particu-

lar way, i.e., indecently. Neither theory fits here,

however.

If the first argument were true, the government

could never hand out awards: for any specific type of

art without chilling other artistic expression. Under

such reasoning, it would be unconstitutional for the

government to award a prize for the best performance

of Mozart’s “Magic Flute” because it might coerce

opera companies across He nation to perform that

ra in preference to another.

oe The he argument is equally problematic. The

Supreme Court has repeatedly instructed that the

First Amendment is not violated when Congress sub-

sidizes some speech, but not all speech. Rust v.

Sullivan, 500 U.S. 178, 198, 111 S.Ct. ape a 114

L.Ed.2d 233 (1991); Regan v. Taxation wi epre-

sentation of Wash., 461 U.S. 540, 549, 103 S.Ct. 1997,

2002-03, 76 L.Ed.2d 129 (1983); Harris v. McRae, 448

U.S. 297, 317 n. 19, 100 S.Ct. 2671, 2688 n. 19, 65

L.Ed.2d 784 (1980); Maher v. Roe, 432 U.S. 464, 475, 97

S.Ct. 2376, 2383, 53 L.Ed.2d 484 (1977); Buckley v.

Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976).

Moreover, Rosenberger v. Rector & Visitors of the

Univ. of Virginia, 515 U.S. 819, 115 S.Ct. 2510, 132

L.Ed.2d 700 (1995), cannot be stretched to cover this

case: the government benefit here is given out to a

select few artists on the basis of the content of their

expression. Rosenberger should not be read to apply

to prizes. SA;

The panel’s third error comes in its alternate

holding: that the statute is impermissible because it

contains content-based and viewpoint-based restric-

95a

tions. The panel applies standard First Amendment

principles to a situation that the First Amendment

doesn’t cover. When the government awards a special

prize to a select few artists, it necessarily will

distinguish between the artists on the basis of the

content of their speech. Indeed, content-based dis-

tinctions are the whole reason for NEA grants.

Considerations of viewpoint are also a necessary

element of the decision of whether art is “excellent”

or meritorious. What art critic would contend that

the subject matter of a work of art is irrelevant to

deciding whether it is “excellent”? In any event, the

terms “artistic excellence” and “artistic merit” are

vague enough to allow an NEA official to consider an

artist’s viewpoint, but that doesn’t bother the

majority. It shouldn’t, because the First Amendment

does not prohibit that. Neither does the Amendment

prohibit “taking into consideration general standards

of decency and respect” when awarding a prize.

The majority’s opinion does far more than give a

hostile construction to a Congressional enactment in

order to create a conflict with other circuits and

Supreme Court precedent, and overturn a law. It

sows the seeds of an imprudent First Amendment

jurisprudence which will entangle and choke Con-

gress’ ability to control public funds used to sponsor

any sort of free expression.

Because this case should have been reheard en

banc, I respectfully dissent from the court’s order not

to do so.

96a 97a

APPENDIX D humanities and the arts by local, State, regional,

and private agencies and their organizations. In

STATUTES INVOLVED doing so, the Government must be sensitive to the

UNITED STATES CODE nature of public sponsorship. Public funding of the

TITLE 20—EDUCATION arts and humanities is subject to the conditions

that traditionally govern the use of public money.

Such funding should contribute to public support

and confidence in the use of taxpayer funds.

Public funds provided by the Federal Government

must ultimately serve public purposes the

Congress defines.

(6) The arts and the humanities reflect the

CHAPTER 26—SUPPORT AND SCHOLARSHIP IN

HUMANITIES AND ARTS; MUSEUM SERVICES

SUBCHAPTER I—NATIONAL FOUNDATION ON

THE ARTS AND THE HUMANITIES

§ 951. Declaration of findings and purposes

The Congress finds and declares the following:

(1) The arts and the humanities belong to all

the people of the United States.

(2) The encouragement and support of national

progress and scholarship in the humanities and

the arts, while primarily a matter for private and

local initiative, are also appropriate matters of

concern to the Federal Government.

(3) Anadvanced civilization must not limit its

efforts to science and technology alone, but must

give full value and support to the other great

branches of scholarly and cultural activity in

order to achieve a better understanding of the

past, a better analysis of the present, and a be

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.