Amicus Curiae Brief — National Endowment for Arts v. Finley

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Supreme Gourt, U.S.

FILED

| JAN 9 1998

No. 97-0371 ~~ CLERK

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

NATIONAL ENDOWMENT FOR THE ARTS, ef al. _

Petitioners

KAREN FINLEY, ef al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF AMICUS CURIAE OF THE

AMERICAN CENTER FOR LAW AND JUSTICE

SUPPORTING PETITIONERS

John P. Tuskey Jay A. Sekulow

The American Center forLaw Counsel of Record

and Justice Colby M. May

1000 Regent Univ. Drive James M. Henderson, Sr.

Virginia Beach, VA 23464 The American Center for Law

(757) 579-2489 and Justice

1000 Thos. Jefferson St. NW

Suite 609

Washington, DC 20007

(202) 337-3167

Attorneys for Amicus Curiae

TABLE OF CONTENTS

I. NO CONSTITUTIONAL VIOLATION RESULTS

FROM A PROGRAM OF GOVERNMENT

FUNDING, BY LIMITING SUCH FUNDING TO

ACTIVITIES BASED ON “AR T?STIC MERIT” AND

“GENERAL STANDARDS \*F DECENCY AND

RESPECT FOR THE DIVERS: BELIEFS AND

VALUES OF THE AMERICAN PUBLIC”

A. The Grants Program of the National Endowment for

the Arts Is Not Subject to Analysis under this

B. The Requirement That The NEA "Tak/e] Into

Consideration" General Standards of "Decency and

Respect" When Awarding Grants for "Artistic

Excellence and Artistic Merit" Does Not Trench

and Fair Notice of its Application Process, and

is Not "Void for Vagueness”

. The NEA's Grant Program Does Not "Directly

Interfere" With Any Protected Expression and

to Hold That it Does Makes Other Government

TABLE OF CONTENTS

Page

Il. BASING ART FUNDING ON STANDARDS OF

DECENCY AND RESPECT FOR DIVERSE

VALUES DOES NOT DISCRIMINATE ON THE

BASIS OF ANY “PROHIBITED PERSPECTIVE”

AND THEREFORE DOES NOT CONSTITUTE

VIEWPOINT DISCRIMINATION.............55.

CONCLUSION 2... cccccchiceuccteesseueeeunaane

iii

TABLE OF AUTHORITIES

Page(s)

CASES:

American Communications Association v. Douds, 339 U.S.

TE TERUNE OTE coe cbadadbisicterocesccioc 16

Bethel School District No. 403 v. Fraser, 478 U.S. 675

TE Ee nk ice ccberecocece 22

Board of Airport Commissioners v. Jews for Jesus, 482

EE, ee 2

Board of Education v. Pico, 457 U.S. 853 (1982) ....... 22

Bray v. Alexandria Women's Health Clinic, 113 S. Ct. 753

EE LES nS 2

Denver Area _ Educational Telecommunications

Consortium, Inc. v. Federal Communications

Commission, 518 U.S. __, 116 S. Ct. 2379, 135

TERE ES EE 17

Frisby v. Schultz, 487 U.S. 474 (1988) ... ............. 2

Finley v. National Endowment for the Arts, 100 F. 3d 671

its niet e dade cedeenestecee ces passim

General Media Communications, Inc. v. Cohen, 1997 WL

es i 21, 22

Grayned v. City of Rockford, 408 U.S. 104 (1972) ........

Harris v. McRae, 448 U.S. 297 (1980) ............... 10

International Society of Krishna Consciousness, Inc. v.

EE A i 15

Lamb's Chapel v. Center Moriches Union Free School

District, 113 S. Ct. 2141 (1993)... 2.0.6... 000.. 2, 21

TABLE OF AUTHORITIES—cont’d

Page(s)

Maher v. Roe, 432 U.S. 464 (1977) ... 2... cece eee eee 10

RAV. v. City of St. Paul, 505 U.S. 377 (1992) ....... 3, 22

Regan v. Taxation with Representation of Washington, 461

Ce SERENE cnccdeancoessdwacctedbhene es

Reno v. ACLU, __ U.S. _, 65 USLW 4715 (US. June

SE copebecnnedecdcutaaseddedseekies 16, 17

Reves v. Ernst & Young, 507 U.S. 170 (1993) ........... 18

Rosenberger v. Rector and Visitors of the University of

Virginia, 115 S. Ct. 2510 (1995) ........... 3, passim

Rust v. Sullivan, 500 U.S. 173 (1991) .......... 3, passim

United States v. Kokinda, 497 U.S. 720 (1990) .......... 2

United States v. Turkette, 452 U.S. 576 (1981) ......... 18

Westside Community Schools v. Mergens, 496 U.S. 226

GRRE osccccsvcccdebckolasadtecdbctkdaus oowks 2

STATUTES:

Cable Television Consumer Protection and Competition

hat BGR, FE GRE BREED 6666 bined sbaceviies

National Foundation on the Arts and Humanities Act of

1965, Pub. L. No. 89-209, 79 Stat. 845, 20 U.S.C. 951

ane, C“Geeeee DP cnnnc cons tues dnesanes 5, passim

20 U.S.C. 954(d), Pub. L. No. 101-512,

PE UD sos ennetnonamhesbeksiniae 5, passim

ee GE Be 60s cnnne nies onnnsesscenamesnas 19

WU. SOURED. ... nsdicincseks bs cb eddetee 19

TABLE OF AUTHORITIES—cont'd

Page(s)

ARS: aes ee 19, 20

REED 5S 2 TS 19

NN iii aie, dab stiekse cies 19

Rules of the Supreme Court, Rule 37 ...............-. 1

OTHER AUTHORITIES:

135 Cong. Rec. 9788-89, 10,323-25, 14,431-33 (1989) ... 6

Webster's New Third Intern’! Dictionary 584 (1993) . 17,18

No. 97-0371

IN THE

SUPREME COURT OF THE w/ NITED STATES

OCTOBER TERM, 1997

NATIONAL ENDOWMENT FOR THE ARTS, ef ai,

Petitioners

KAREN FINLEY, ef ai.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF AMICUS CURIAE OF THE

AMERICAN CENTER FOR LAW AND JUSTICE

SUPPORTING PETITIONERS

INTEREST OF AMICUS’

The American Center for Law and Justice (ACLJ) is a

nonprofit, public interest law firm and educational organization

dedicated to protecting religious liberty, human life, and the

family. ACLJ attorneys have argued or participated as amicus

*. Counsel of record for the parties in this case have

consented to the filing of this brief. Letters of consent have

been filed with the Clerk of Court pursuant to Rule 37.

Pursuant to Rule 37.6, amicus ACLJ discloses that no counsel

for any party in this case authored in whole or in part this brief

and that no monetary contribution to the preparation of this

brief was received from any person or entity other than amicus

curiae.

curiae in numerous cases in this Court. See, e.g., Lamb's

Chapel v. Center Moriches Union Free School District, 113 S.

Ct. 2141 (1993); Bray v. Alexandria Women’s Health Clinic,

113 S. Ct. 753 (1993); United States v. Kokinda, 497 U.S. 720

(1990); Westside Community Schools v. Mergens, 496 U.S. 226

(1990); Frisby v. Schultz, 487 U.S. 474 (1988); Board of

Airport Commissioners v. Jews for Jesus, 482 U.S. 569 (1987).

The ACLJ, because of its commitment to defending the

family, opposes the expenditure of federal funds for arts

programs in circumstances in which the financial means to

provide such aid is a reliance on taxation of individuals and

families. Consequently, the ACLJ is generally not in favor of

the program of grants and aid administered by the National

Endowment for the Arts. Confronted by the de facto existence

of such continuing programs of federal financing of art, the

ACLJ views the restrictions on arts funding that are at issue

here — limiting funding to arts grantees whose projects satisfy

the requirements of excellence and merit, taking into

consideration decency and respect for the diversity of American

beliefs and values —- appropriate and constitutionally

permissible. Thus, the ACLJ urges the Court to reverse the

erroneous decision of the United States Court of Appeals for

the Ninth Circuit below.

SUMMARY OF ARGUMENT

While every American remains free, under the First

Amendment right of free speech, to express their beliefs,

opinions and values indecently and without respect, the

decision below erroneously concludes that a federal program of

funding for arts violates the United States Constitution.

First, Congress quite properly may choose to create a

program and to allocate funds for it even though the program

advances a particular message or viewpoint. For example, it is

long settled that childbirth may be preferred over abortion in

government programs. Moreover, as Rust v. Sullivan, 500 U.S.

173 (1991) demonstrated, the government may condition the

receipt of a grant of federal funds within a federal program on

certified compliance with the purposes, goals and restrictions

of the federal program.

Second, the decision below erroneously concludes that this

Court’s opinion in Rosenberger v. Rector and Visitors of the

University of Virginia, 115 S. Ct. 2510 (1995) supplanted the

principles noted and followed in Rust. Treating the policy

choice to create a vital student speech forum on a public

campus as identical to the policy choice to create a limited and

discrete program of federal assistance to groups and individuals

accomplishing the purposes of a federal program shows the

ineptitude of the court below in analyzing the matter before it.

Third, the statutory terms at issue, “decency” and “respect,”

are amenable to ready definition. These are terms of ordinary

meaning readily grasped by men of common intelligence.

Consequently, the use of these terms in describing the

considerations to be brought to bear by the NEA in considering

applications for funding does not raise any serious problem of

vagueness.

Fourth, Congress is free to condition receipt of NEA grants

on the content of a piece of art. See R.A.V. v. City of St. Paul,

505 U.S. 377, 390 n. 6 (1992). Moreover, the condition at

issue here — that the NEA not fund art works that do not

reflect “general standards of decency and respect for the diverse

beliefs and values of the American public”! — does not violate

the First Amendment’s prohibition against viewpoint

discrimination. The NEA is by no means a censor; artists are

free to produce whatever works they desire. But the NEA is in

effect a “purchaser” of art or a prize giver; like any other

purchaser or prize giver, the NEA has the right to pay only for

art that reflects its own tastes and viewpoints or award prizes

only to works that reflect the qualities the NEA thinks are

important enough to reward. Moreover, a condition that art be

decent and respectful is not viewpoint discrimination in any

event.

1. This paraphrase of the statute assumes that the Ninth

Circuit correctly construed the “decency and respect” provision

to state a controlling criterion for art funding, that is, that the

NEA must consider decency and respect for each grant

application and may not fund indecent or disrespectful art. We

believe that Judge Kleinfeld has demonstrated that this may

well not be a proper interpretation of the provision. See 100

F.3d at 688-89. However, the decency and respect provision

does not violate the First Amendment even if the Ninth

Circuit’s interpretation of that provision is correct.

ARGUMENT

I. NOCONSTITUTIONAL VIOLATION RESULTS FROM

A PROGRAM OF GOVERNMENT FUNDING, BY

LIMITING SUCH FUNDING TO ACTIVITIES BASED

ON “ARTISTIC MERIT” AND “GENERAL

STANDARDS OF DECENCY AND RESPECT FOR THE

DIVERSE BELIEFS AND VALUES OF THE

AMERICAN PUBLIC”

A. The Grants Program of the National Endowment for the

Arts Is Not Subject to Analysis under this Court’s

Public Forum Doctrine

In 1965, Congress established a federal arts program, the

National Endowment for the Arts. See National Foundation on

the Arts and Humanities Act of 1965, Pub. L. No. 89-209, 79

Stat. 845, 20 U.S.C. 951 et seq. (the “NFAHA”). In crafting

this program of public art, Congress found that, although “[t}he

encouragement and support of national progress and

scholarship in the . . . arts” is “primarily a matter for private

and local initiative,” these objects “are also appropriate matters

of concern to the Federal Government.” 20 U.S.C. 951(2).

In 1990, Congress amended the NFAHA, providing

explicitly, for the first time, for consideration of certain factors

in analyzing applications for federal funding. Pub. L. No. 101-

512, 104 Stat. 1960. In particular, the 1990 amendments

prohibit the Chairman of the NEA from making any payment

under the federal arts program absent consideration of “artistic

excellence and artistic merit” “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).

The need for these amendments was illustrated by public

disclosure of certain federal arts funding decisions. Among the

funded activities that inflicted offense and degradation on

beliefs and values held by many Americans were two

momentously controversial arts exhibits: a retrospective on the

career of graphic, frequently obscene and persistently crude

photographer Robert Mapplethorpe; and, an exhibit of the

viciously offensive photograph, “Piss Christ”, depicting a

Roman Catholic crucifix immersed in a container of the artist’s

urine. See 135 Cong. Rec. 9788-89, 10,323-25, 14,431-33

(1989). Accordingly, Congress the NEA Chairman to employ

the factors noted above in determining grant applications.

The litigation now before this Court arose after the

individual respondents were denied federal arts funding as

Congress considered its 1990 amendments to the National Fine

Arts and Humanities Act. Pet. App. 49a. After this suit ensued,

the 1990 amendments were enacted, and the respondents

amended their complaint to challenge the amendatory

provisions of the Arts, Humanities, and Museums Amendments

of 1990. Pub. L. No. 101-512, 104 Stat. 1960. Contrary to the

conclusions reached in the courts below, amicus curiae ACLJ

believes that the enacted amendments are consistent with the

Constitution, as is made obvious when this government funding

program is compared with others.

This Court consistently has rejected the notion that

government refusal to subsidize expression of First

Amendment rights constitutes a suppression of those rights.

See Rust v. Sullivan, 500 U.S. 173, 192 (1991); Regan v.

Taxation with Representation of Washington, 461 U.S. 540,

546 (1988). In Regan, the Court held that Internal Revenue

Code provisions granting a tax deduction to veterans groups

that conduct lobbying activities, but not to other charitable

groups engaged in lobbying, did not violate the First

Amendment. 461 U.S. at 551. The Court framed the issue as

“not whether TWR must be permitted to lobby but whether

Congress is required to provide it with public money with

which to lobby.” Jd. The Court answered that TWR was not

entitled to public monies to pursue its free speech rights,

explaining that “although government may not place obstacles

in the path of a person’s exercise of freedom of speech, it need

not remove those obstacles not of its own creation.” /d. at

549-50 (citations omitted).

The nature of the federal arts program is such that it is not

a fit subject for analysis under this Court’s public forum

doctrine. Rather, the grants and aid program administered by

the NEA is akin to, and its restrictions in funding are as

sustainable, as the Title X regulations restricting abortion

advocacy by recipients of Title X family planning funds. This

Court subsequently applied its holding in Regan to a case

involving government-funded speech. In Rust v. Sullivan, 500

U.S. 173 (1991), this Court rejected First Amendment free

speech challenges to a restriction within the federal Title X

family planning program. There, this Court considered

regulations promulgated by the Secretary of Health and Human

Services (the Secretary) in 1988 that were intended to clarify

certain issues that had arisen in the administration of Title X

programs. This Court noted, “the regulations attach[ed] three

principal conditions on the grant of federal funds for Title X

projects”:

First, the regulations speciflied] that a “Title X project

may not provide counseling concerning the use of

abortion as a method of family planning or provide

referral for abortion as a method of family

planning.” ... Second, the regulations broadly

prohibit[ed] a Title X project from engaging in

activities that “encourage, promote or advocate abortion

as a method of family planning.” ... Forbidden

activities include[d] lobbying for legislation that would

_increase the availability of abortion as a method of

family planning, developing or disseminating materials

advocating abortion as a method of family planning,

providing speakers to promote abortion as a method of

family planning, using legal action to make abortion

available in any way as a method of family planning,

and paying dues to any group that advocates abortion as

a method of family planning as a substantial part of its

activities. ... Third, the regulations require[d] that

Title X projects be organized so that they are

“physically and financially separate” from prohibited

abortion activities. ... To be deemed physically and

financially separate, “a Title X project must have [had]

an objective integrity and independence from prohibited

activities. Mere bookkeeping separation of Title X

funds from other monies [was] not sufficient.”

Rust, 500 U.S. at 179-80 (citations omitted). Title X funding

recipients challenged these limitations on the use of Title X

funding, asserting that “the regulations violate the First

Amendment by impermissibly discriminating based on

viewpoint... .” Rust, 500 U.S. at 192.

But the funding recipients in Rust had no well-made

argument that the First Amendment barred Congress from

drawing the parameters of a program of funding of family

planning activities. This Court took note, in the first instance,

that Congress was well within its sphere of authority to prefer

childbirth over abortion. Rust, 500 U.S. at 192. This Court

rejected the argument that a government-funded program

providing family planning services violated the First

Amendment because it disallowed participants from engaging

in abortion counseling or referrals. When the “government

appropriates public funds to establish a program, it is entitled

to define the limits of that program.” 500 U.S. at 194.

Thus, as this Court noted in Rust, Congress is entitled to

award grants using criteria that are based on the content of

speech and may do so without any violation of the First

Amendment right of free speech. Otherwise,

To hold that the Government unconstitutionally

discriminates on the basis of viewpoint when it chooses

to fund a program dedicated to advance certain

permissible goals, because the program in advancing

those goals necessarily discourages alternative goals,

would render numberous Government programs

constitutionally suspect. When Congress established a

National Endowment for Democracy to encourage other

countries to adopt democratic principles . . . , it was not

constitutionally required to fund a program to

encourage competing lines of political philosophy such

as communism and fascism.

Rust, 500 U.S. at 194 (citation omitted). There remained no

doubt after Rust that “the Government [might] choose[] to

subsidize one protected right” without being obliged to

“subsidize analogous counterpart rights.”? And, this Court

2. In reaching this conclusion in Rust, this Court relied on

earlier holdings in Regan v. Taxation with Representation, 461

reaffirmed, “[t]here is a basic difference between direct state

interference with a protected activity and state encouragement

of an alternative activity consonant with legislative policy.”

500 U.S. at 192-193 (citing Maher v. Roe, 432 U.S. 464, 475

(1977)).

Thus, as directly suggested in Rust, the federal government

may choose to fund arts activities that it has determined warrant

support and may do so while applying artistic criteria. Nothing

more than that which Rust allowed did Congress do. Congress

simply mandated that the NEA Chairman take appropriate steps

to insure that the NEA rules and regulations take into account

“artistic excellence and artistic merit,” as well as “general

standards of decency and respect for the diverse beliefs and

values of the American public.” 20 U.S.C. 954(D)(1).

The NEA is not subsidizing artists or art generally; it is

merely giving grants to a select few particularly worthy artistic

projects. In giving grants, the NEA is using public money to

provide art for the public and, in effect, purchasing art for

public dissemination. Like any other art purchaser, the NEA is

entitled to decide what it wants to purchase, and to insist that

it receives what it pays for. This is no different than the

situation in Rust. There, Congress wanted to provide a specific

form of family-planning services--services that did not promote

abortion as a means of family planning. Congress purchased

these services from private providers. Despite the fact that the

funding (purchasing) decision relied expressly on the viewpoint

of the provider’s speech (anybody who would use funds to

counsel or refer for abortions was ineligible for funds), this

U.S. 540 (1983); Harris v. McRae, 448 U.S. 297 (1980); and,

Maher v. Roe, 432 U.S. 464 (1977).

Court upheld the restriction because Congress was entitled to

define the limits of its family-planning program to ensure that

it received (and could therefore provide to the public) what it

paid for--family-planning services that did not promote

abortion. See Rust, 111 S.Ct. at 1172-73.

Likewise, Congress is entitled to establish guidelines for

NEA grants. See Rust, 500 U.S. at 194. In those guidelines,

Congress made certain value judgments about what kinds of art

it is willing to spend public funds for and enacted criteria,

including some based on content and viewpoint, for

determining how to spend that money. See 20 U.S.C. § 954(d)

(1990) (delineating standards for NEA grants). As Judge

Kleinfeld noted in his dissent, the content and viewpoint

criteria include not only decency and respect, but also “artistic

excellence,” promoting cultural diversity, and reflecting the

culture of inner cities, rural areas, and tribal communities. The

criteria did not include artistic expressions reflecting “cultural

homogeneity or white middle class suburban culture.” See 100

F.3d at 687 (Kleinfeld, J., dissenting). In addition, Congress

required the NEA Chairman, when awarding grants, to take

into consideration general standards of decency and respect for

American values and beliefs. This is not censorship. White

middle class artists may still produce and sell white, middle

class, culturally homogenous art. Other artists may still

produce and sell indecent and disrespectful art. They simply

will not receive public monies to do so.

Despite the clear holding of Rust and that decision’s

elucidation of principles controlling here, the United States

Court of Appeals for the Ninth Circuit erroneously reasoned

that the principles relied on in Rust, that affirm the perogative

of the federal government to control the content of its own

messages, were altered by this Court’s decision in the student

speech case, Rosenberger v. Rector and Visitors of the

University of Virginia, 115 S. Ct. 2510 (1995). See Finley v.

National Endowment for the Arts, 100 F. 3d 671, 681-82 (9th

Cir. 1996).

This Court, in Rosenberger, concluded that a state

university violated the First Amendment when it refused to

provide funding for a Christian student group’s publication, in

circumstances where funding was provided to other religious

student groups. Rosenberger, 115 S. Ct. at 2520. Unlike the

present situation, the facts presented in Rosenberger

Id., at 2516-20. In Rosenberger, the record evidence was that

all student organizations that bore a “relat{ionship] to the

education purpose of the University” received student activity

fee funds. Jd, at 2514. Although eighty-five percent of the

applying student groups received funds, the University denied

funding to the Christian student group for the single reason that

the group’s publication promoted a belief in a deity.

Rosenberger, 115 S.Ct. at 2515, 2517-18.

Nothing in Rosenberger invalidates the principles relied on

by this Court in Rust. Congress remains free to “fund a

program [selectively] to encourage certain activities it believes

to be in the public interest.” Rust, 500 U.S. at 193. When

Congress created the National Endowment for the Arts in 1965,

and as Congress continued to authorize funding for the NEA,

the purpose of Congress was not the creation of a funding

forum. Rather, Congress devised a discriminating program of

funding for the purpose of fulfilling the role Congress

perceived as appropriate for the federal government with

relationship to the arts. The 1990 amendments — specifying

criteria to be considered by the NEA Chairman in developing

rules and regulations for the federal arts granting process —

simply serve to guarantee that the congressional purpose for the

NEA is, in fact, served.

The difference between Rosenberger and the present case

is stark. Unlike the program in Rosenberger, whose purpose

was to give funding to support the vast majority of applicants

that met minimal qualifications, the NEA exists to award prizes

to a very few select artists. In 1994, less than two percent of

NEA applicants received those prizes. See 100 F.3d at 687.

The NEA’s primary purpose is not to provide financial support

to artists generally but to award prizes to reward and encourage

This distinction makes all the difference. When a prize

giver awards a prize, the prize giver is expressing its view that

the recipient reflects the qualities that the prize giver believes

are worthy of reward, much as a purchaser buys what he

believes best meets his needs or desires. Government’s award

of a prize is government speech. The NEA grant program is

thus analogous to the family planning program in Rust (where

the government was paying to disseminate the government’s

message) and not the student funding program in Rosenberger.

To hold otherwise would create anomalous results and

unduly restrict the government's ability to control public funds

used to sponsor or reward artistic achievement. Suppose, for

instance, that Congress or a local government offers to fund

sculptures depicting “great Americans who have made

important contributions to the American way of life.” Does the

First Amendment prohibit the government from refusing to

consider an artist’s sculpture of Lee Harvey Oswald on the

grounds that a President’s assassin is not a great American or

that assassinating a president is not an important contribution

to American life? The rejection is certainly based on

viewpoint, but it is absurd to suggest the government is

suppressing free speech. The sculptor is still free to create and

display his sculpture. The government, like any other art

purchaser, is simply refusing to buy an artwork it does not

want. The NEA funding program constitutes an extended

application of the same principle--artists are free to produce

indecent or disrespectful art, but Congress simply has stated in

advance that the NEA will not purchase or reward art that it

not violate the First Amendment.

B. The Requirement That The NEA “Takj/e] Into

Consideration” General Standards of “Decency and

Respect" When Awarding Grants for "Artistic

Excellence and Artistic Merit" Does Not Trench Upon

the First Amendment

1. The NEA's Grant Program Provides Reasonable

and Fair Notice of its Application Process, and is

Not "Void for Vagueness"

As noted above, the NEA's grant program is not amenable

to public forum analysis. The NF AHA and its specification that

the NEA's regulations governing the grant application process

shall ensure 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), is "reasonable" and provides sufficient notice of the

applicable standards for the grant and aid program.’

Common sense and the NEA's grant application process

require what is obvious and reasonable--when limited grant

awards are provided to a select few artists, the NEA will

distinguish among the artists based on the content of their art.

Indeed, evaluations based on the content of the art is why the

NEA grant program exists. The NEA's content-based

determinations are made by the 26-member Nationa! Council

on the Arts, which utilizes advisory panels to review the grant

applications and make award recommendations. 20 U.S.C.

§959(c). The advisory panels are required to reflect "diverse

artistic and cultural points of view" and include "representation

of lay individuals who are knowledgeable about the arts." 20

U.S.C. §959(c)(1) and (c)(2). Having these decision-makers

take into consideration "decency and respect" as part of the

“artistic excellence and merit" review is permissible for two

reasons.

First, "decency and respect" are merely among the artistic

factors considered. No grant application is automatically

disqualified (except obscene work) or guaranteed a grant

award. Rather, all applications are evaluated based on "artistic"

quality. The decision below was correct in not being concerned

with the vagueness of the “artistic excellence and merit"

requirement, and that same lack of concern must govern the

inclusion of "decency and respect" as one of many factors to be

considered in awarding grants. The First Amendment should

not be read to bar government from "taking into consideration"

3. Reasonable speech restrictions are permissible outside

of the public forum context. Cf, International Society of

Krishna Consciousness, Inc. v. Lee. 505 U.S. 672, 679 (1992).

the aesthetic, taste and similar criteria embodied in notions of

"decency and respect" in awarding grants of public funds to

support artistic endeavors. "The Government can, without

violating the Constitution, selectively fund a program to

encourage certain activity it believes to be in the public interest,

without at the same time funding an alternative program which

seeks to deal with the [interest] in another way. In so doing, the

Government has not discriminated on the basis of viewpoint;

it has merely chosen to fund one activity to the exclusion of the

other." Rust, 500 U.S. 193.

Second, the terms "decency and respect" are not so vague--

certainly no more so than “artistic excellence and merit"--as to

fail in providing reasonable notice of the kind of art the NEA

will fund. In upholding an Illinois’ antinoise ordinance

challenged as vague and overbroad, this Court's holding in

Grayned v. City of Rockford, 408 U.S. 104, 112 (1972),

explained that an ordinance need only provide "fair notice to

those to whom [it] applies."* Importantly, unlike the situation

here, the "particular context" to which the Illinois’ antinoise

ordinance applied involved traditional public forum--public

streets and sidewalks.

Further, the statute and NEA regulations involve a grant

program to "develop and promote a broadly conceived national

policy of support for the humanities and the arts in the United

States,” 20 U.S.C. 953(b), not a criminal statute which would

require greater precision to satisfy due process. Reno v. ACLU,

___ US. ____, 65 USLW 4715 (decided June 26, 1997). Reno

struck provisions of the Communications Decency Act enacted

4. Citing American Communications Association v.

Douds, 339 U.S. 382, 412 (1950).

to protect minors from "indecent" and “patently offensive"

communications on the Internet as overbroad and vague. This

difference is significant since criminal statutes create an

"increased deterrent effect" which when coupled with the "risk

of discriminatory enforcement" poses "greater First

Amendment concerns than those implicated by [] civil

regulation(s]." Jd. at 4720, citing Denver Area Educational

Telecommunications Consortium, Inc. vv. Federal

Communications Commission, 518 U.S. __, 116 S. Ct. 2379,

135 L Ed 2d 888 (1996). In Denver Area provisions of the

Cable Television Consumer Protection and Competition Act of

1992, 47 U.S.C. §532(h), which permitted cable operators to

decide whether or not to carry programs on leased channels it

believed were "patently offensive," were upheld as consonant

with the First Amendment. Similarly, the NEA's consideration

of "decency and respect” in the "particular context" of awarding

grants based on “artistic excellence and artistic merit" are

consonant with the First Amendment.

Finally, the common meaning of the words "decency" and

"respect" provide ample and reasonable notice of what the

NEA's grant and aid program may fund. Webster's New Third

International Dictionary 584 (1993) defires "decency" as:

la: suitability or fitness to circumstances [] b: orderly

condition of society; conforming to law [] 2: []

conformity to standards of taste, propriety, or quality []

3: whatever is proper or becoming : standards of

propriety [] 4a: conformity to the standard of living that

becomes a person [] Sa: literary decorum or its

observance.

The common meaning of "decency" is not mysterious, hidden

or unreasonable, and the word provides suitable and reasonable

notice as to the type of art the government is willing to consider

funding under the NEA's grant and aid program.’ Nothing

more is required. Rust, 500 U.S. at 193.

"Respect" is defined as:

[] consider, deem, heed, [] 3a: to consider worthy of

esteem : regard or treat with respect [] 3b: to refrain

from obtruding upon or interfering with [] 4: to have

regard or reference to.

Here too the language is entitled to its plain, reasonable

meaning, and as applied in the NFAHA and the NEA's grant

and aid program is sufficiently clear and reasonable so as to

advise what type of art the government will consider funding.

2. The NEA's Grant Program Does Not "Directly

Interfere" With Any Protected Expression and to

Hold That it Does Makes Other Government

Spending Programs Suspect

As noted in Rust, "[t}here is a basic difference between

direct state interference with a protected activity and state

encouragement of an alternative activity." Jd., 500 U.S. at 193.

While the NEA's grant program was designed to foster the

humanities and arts, and promote artistic excellence, it does not

"directly interfere" with any art form or production. Artists

remain unencumbered to pursue whatever artistic expression or

form they choose. Likewise, Congress is free to decide to fund

or not to fund the art it wishes to foster or develop on behalf of

the American public.

5. Statutory language which is unambiguous is entitled to

be construed and applied in accordance with its plain meaning.

Reves v. Ernst & Young, 507 U.S. 170, 177 (1993) ("[i}n

determining the scope of a statute, we look first to its

language"); quoting U.S. v. Turkette, 452 U.S. 576, 580 (1981),

other citations omitted.

The NEA's grant program is not denying a benefit to

anyone. As explained in Rust, when Congress established a

National Endowment for Democracy "to encourage other

countries to adopt democratic principles, 22 U.S.C. §4411(b),

it was not constitutionally required to fund a program to

encourage competing lines of political philosophy such as

communism and fascism." Rust, 500 U.S. at 194. Indeed, those

wishing to promote divergent political philosophies are free to

do so. To conclude that the availability of grant and aid

programs in one area are unconstitutional because of necessity

other programs are not funded would reek havoc on other

government programs generally. For example, grant application

programs with the National Science Foundation or the National

Institute for Health making government funding available for

scientific or medical research that improves the public health

generally, does not impermissible discriminate against other

possible research programs seeking to advance the same goal.

Nor does funding on a specific disease like alzheimer's disease,

discriminate against other areas of disease research, say AIDS

or diabetes. 42 U.S.C. §1871. Nor does an invitation by

government for a speaker to address a certain topic

impermissible discriminate against any other would-be speaker,

regardless of the speaker's viewpoint. Just as the awarding of a

scientific grant by the National Aeronautic and Space

Administration for research or development is not an

impermissible form of discrimination, 42 U.S.C. §2451, et seq.,

so too the NEA's decision to fund from the public fisc art it

judges "excellent" or "meritorious."

As this Court concluded in Regan, 461 U.S. at 545,

Congress can, consistent with its spending power, reasonably

refuse to subsidize one activity while deciding to subsidize

others. As noted previously, the issue in Regan was the

constitutionality of Congress’ choice not to subsidize the

lobbying activities of charitable organizations exempt from

taxation under Internal Revenue Code §501(c)(3), 26 U.S.C.

§501(c)(3), by prohibiting the charity from using tax-deductible

contributions to support lobbying activities. Tax-exempt

charitable organizations remain free to conduct their

nonlobbying activities using tax-deductible contributions, and

they are also free to create an affiliate that conducts its lobbying

activities. 26 U.S.C. §501(c)(4). Given this alternative, the

holding of the Regan court also holds here--"Congress has not

infringed any First Amendment rights or regulated any First

Amendment activity[, it] has simply chosen not to pay for [the]

lobbying [of charitable organizations or the artistic endeavors

of an artist].” 461 U.S. at 546. To the same effect, those

awarded grants under the NEA's application process remain

free to independently pursue other artistic expressions that do

not use grant monies. The NEA's grant program simply decides

to pay for certain art, but not all art. Accordingly, the NEA

grant program is consistent with the First Amendment and

trenches upon no constitutional rights.

Il. BASING ART FUNDING ON STANDARDS OF

DECENCY AND RESPECT FOR DIVERSE VALUES

DOES NOT DISCRIMINATE ON THE BASIS OF ANY

“PROHIBITED PERSPECTIVE” AND THEREFORE

DOES NOT CONSTITUTE VIEWPOINT

DISCRIMINATION.

Even if Congress were forbidden from making viewpoint-

based distinctions in granting special prizes (funding) to a

select few artists (or purchasing art for the public), the

requirement that no funds be spent for indecent or disrespectful

art would not violate the Free Speech Clause because such a

requirement does not constitute viewpoint discrimination.

Congress has not targeted any particular perspective on subjects

Congress is willing to fund. Rather, Congress has restricted the

manner in which an artist can address a particular subject or

perspective.

Viewpoint discrimination, as this Court’s cases have

defined it, generally involves singling out speech for disfavor

because of “the specific motivating ideology or the opinion or

perspective of the speaker.” Rosenberger, 115 S.Ct. at 2516.

As the First Circuit recently noted, “viewpoint” connotes “a

specific premise, a perspective, a standpoint from which a

variety of subjects may be discussed and considered.” General

Media Communications, Inc. v. Cohen, 1997 WL 732329, at *7

(2d Cir. Nov. 21, 1997) (quoting Rosenberger, 115 S.Ct. at

2517). Thus, for example, the University’s decision in

Rosenberger to refuse to fund discussion of subjects from a

religious perspective while funding discussion of the same

subjects from other perspectives constituted viewpoint

discrimination. See 115 §.Ct. at 2517-19. Likewise, the Court

found in Lamb 's Chapel v. Center Moriches Union Free School

District, 508 U.S. 384, 393 (1993) that “permitting school

property to be used for the presentation of all views about

family issues and child rearing except those dealing with the

subject matter from a religious standpoint” constituted

viewpoint discrimination.

To find indecency and disrespect to be viewpoints would be

“linguistic overreaching.” General Media, 1997 WL 732329,

at *8. Indecency and disrespect are not “standpoint[s] from

which a variety of subjects may be discussed and considered”

any more than obscenity, nudity, or voice amplification.

Rather, indecency and disrespect are much more naturally

understood as connoting types of speech or manners of

speaking. Like, for instance, nudity or voice amplification,

indecency or disrespect might make speech more effective (or

at least more emphatic) by emphasizing the speaker’s point or

making it easier to hear the speaker. But the NEA grant

program does not exclude from funding, for example, art that

criticizes government policy or promotes eroticism or sexual

libertinism. All Congress asks is that the artist not do so in an

indecent or disrespectful way--that the art not be gratuitously

insulting, or degrading, or sexually explicit in a way most

would find offensive.

Several of this Court’s cases support, by analogy, the

conclusion that distinctions based on indecency and disrespect

do not constitute viewpoint discrimination. Jn Bethel School

District No. 403 v. Fraser, 478 U.S. 675 (1986), this Court

allowed a school to punish a student for “offensively lewd and

indecent speech” because the punishment was “unrelated to any

political viewpoint.” Jd. at 685. In Board of Education v. Pico,

457 U.S. 853 (1982), a plurality of this Court noted that while

a school board could not remove books from a school library to

deny students access to disfavored ideas, the board could

remove books because they are “pervasively vulgar.” Jd. at

870-71; see also id. at 880 (Blackmun, J., concurring) (“First

Amendment principles would allow a school board to refuse to

make a book available because it contains offensive language”).

And in R.A.V. v. City of Saint Paul, 505 U.S. 377 (1992), this

Court suggested in dicta that prurience and patent offensiveness

are not viewpoints. See id at 388 (while requirement of

viewpoint neutrality applies to unprotected as well as protected

speech, “[a] state might choose to prohibit only that obscenity

which is the most patently offensive in its prurience”). See also

General Media, 1997 WL 732329, at *8 and n. 12 (holding that

distinctions based on “lasciviousness” are not viewpoint-

based).

In the NEA grant program, Congress has not singled out

any viewpoint, as this Court has defined that term, for

disfavored treatment. Therefore, the program does not violate

the Free Speech Clause.

CONCLUSION

For the foregoing reasons, the judgment below should be

reversed.

Respectfully submitted,

Jay Alan Sekulow

Counsel of Record

Colby M. May

James Matthew Henderson, Sr.

The American Center for Law

and Justice

1000 Thos. Jefferson Street NW

Suite 609

Washington, DC 20007

(202) 337-3167

John P. Tuskey

The American Center for Law

and Justice

1000 Regent University Drive

Virginia Beach, VA 23464

(757) 579-2489

Attorneys for Amicus Curiae

Dated: January 9th, 1998.

LL _

AMICUS CURIAE

BRIEF

Supreme Gowrt, U.S.

ot ee ee

JAN 8 1998

No. 97-371 CLERK

—————————————————————————————SSE>5>0—050—0OoO08—Sa>woOooO

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

NATIONAL ENDOWMENT FOR THE ARTS, ET AL..,

Petitioners,

KAREN FINLEY, ET AL.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF LIBERTY COUNSEL AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

Mathew D. Staver*

Frederick H. Nelson

Nicole Arfaras Kerr

LIBERTY COUNSEL

1900 Summit Tower Blvd.

Suite 560

Orlando, Florida 32810

(407) 875-2100

*Counsel of Record

TABLE OF CONTENTS

THE GENERAL STANDARDS FOR DECENCY

PROVISION IS NOT FACIALLY

UNCONSTITUTIONAL IN LIGHT OF THE

HIGHER STANDARD APPLIED TO FACIAL

CHALLENGES AND BECAUSE THIS COURT’S

PRECEDENT HOLDS THAT TRIBUNALS

SHOULD DEFER TO THE NEA’S

INTERPRETATION OF THE PROVISION

In A Facial Challenge, The General

Standards For Decency Provision Should

Be Construed As Constitutional To Avoid

The General Standards For Decency

Provision Should Be OConstrued As

Constitutional Because This Court’s

Precedent Holds That Tribunals Should

Defer To The NEA’S Interpretation Of The

oe. Ses a ror en ee

Il.

THE GENERAL STANDARDS FOR DECENCY

PROVISION IS NOT FACIALLY

UNCONSTITUTIONAL BECAUSE NO PERSON

OR ENTITY MAY CLAIM AN "ENTITLEMENT"

TO THE AWARD OF AGRANT ...........

CONCLUGION ...cscseveseteue ue eweee

TABLE OF AUTHORITIES |

CASE LAW:

Blodgett v. Holden,

Board of Regents v. Roth,

CO MEETER sss es ccc ces

Buckley v. Valeo,

4 a

Cammarano v. United States,

eee eee

Chevron U.S.A. Inc. v.

Natural Resources Defense Council, Inc.,

ee eee

Crowell v. Benson,

En) 356 ows ot wate a

Edward J. DeBartolo Corp. v.

Florida Gulf Coast Building &

Construction Trades Council,

GE Wu SOW GUOUED cw ccc ees

FTC v. American Tobacco Co.,

OL eee eee

FW/PBS v. City of Dallas,

eee ee

PAGE

Finley v. NEA,

795 F. Supp. 1457 (C.D. Cal. 1992) .. 2, 5,6, 7,9

Finley v. NEA,

100 F.3d 671 (9th Cir. 1996) ............ 6, 10

Harris v. McRae,

UL EE Eee re eee 13, 14

Maher v. Roe,

Pog 8 Bree eg ee 13, 14

Motor Vehicle Mfrs. Assn. of United States, Inc.

v. State Farm Mut. Automobile Ins. Co.,

CD WB: FP Gee 6 ao 6 Greet whisk diem 10, 11

NLRB v. Catholic Bishop of Chicago,

G4B UE. GD RGD oc ca ee wet eae ws 2.3%

Regan v. Taxation without Representation of Wash. ,

O68 U.B. SED CRREED ccc tec ceceunsuns 13, 15

Rust v. Sullivan,

_ i. fe. |. re 3, passim

South Dakota v. Dole,

IE ® OF) ee rr ee 15

United States ex rel. Attorney General v.

Delaware & Hudson Co.,

203 U.S. SEB CIGD 2 cece ccc seven 7

United States v. Jin Fuey Moy,

y Et | Servrresteratr 7

Webster v. Reproductive Health Services,

i nD . Gy css swe bee 6s 2, 13

STATUTES:

20 U.S.C. § 954(cK(1), (2), @-@............. 14

RN ak a, age ee ae 5

oe Pe ee ee er 14

OTHER AUTHORITIES:

136 Cong. Rec. H9410-57 (Oct. 11, 1990) ......... 10

TS a eee 11

INTEREST OF AMICUS CURIAE

Liberty Counsel is a non-profit civil liberties education

and legal defense organization.’ Liberty Counsel's activities

include educating the public regarding civil liberties and the

interaction between law and individual freedoms. As part of

advancing Liberty Counsel's purpose, education is provided

through interaction with attorneys and members of the

academic community, publication of articles and journals in

law reviews, providing legal counsel where appropriate, and

filing amicus curiae briefs on a variety of issues.

Liberty Counsel is interested in protecting the First

Amendment speech\expression rights of individuals. Liberty

Counsel is also interested in ensuring that our government

utilizes funds in the advancement of our citizen’s goals while

keeping intact Congressional guidance regarding

appropriations for the arts and cultural diversity. Liberty

Counsel files this brief in support of the Petitioners with the

aim to assist this Court in rendering a reasoned decision

regarding the use of taxpayer funds for artistic advancement.

Attorney Mathew D. Staver has argued before this Court and

herein attempts to lend his assistance in the proper

interpretation and application of Congress’ approach to grant

making through the NEA.

' Liberty Counsel files this brief with the consent of all parties.

The letters granting consent of the parties are attached hereto with

the filing of this brief. Counsel for a party did not author this brief

in whole or in part. No person or entity, other than Amicus Curiae,

its members, or its counsel made a monetary contribution to the

preparation and submission of this brief. A grant application is

pending with the Alliance Defense Fund in Phoenix, Arizona, but

no funds have been received.

SUMMARY OF ARGUMENT

On its face, the General Standards for Decency

provision does not transgress constitutional tenets. This Court

has repeatedly held that facial challenges to legislation are

generally disfavored and legislation will generally be upheld.

In NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 500

(1979), this Court held that "an Act of Congress ought not be

construed to violate the Constitution if any other possible

construction remains available." This precept is based on the

fact that a decree to declare an Act of Congress

unconstitutional "is the gravest and most delicate duty that this

Court is called on to perform." Blodgett v. Holden, 275 U.S.

142, 148 (1927) (opinion of Holmes, J.).

In light of the substantial burden which must be met by

those presenting a facial challenge to Congressional

legislation, this Court should defer to the reasonable

interpretation advanced by the NEA. As submitted by the

NEA, “decency” and "respect . . . are factors only to the

extent that they are implicit in the assessment of artistic

merit." Finley v. NEA, 795 F. Supp. 1457, 1470 (C.D. Cal.

1992). This construction does not violate the Constitution and

is, therefore, a possible construction to the provision on its

face.

The Respondents assert a “property” interest in

receiving government subsidies of their artistic expression.

This Court has long-recognized the principle that "‘the Due

Process Clauses generally confer no affirmative right to

governmenial aid, even where such aid may be necessary to

secure life, liberty, or property interests of which the

government itself may not deprive the individual.’" Webster

v. Reproductive Health Services, 492 U.S. 490, 507 (1989)

(quoting DeShaney v. Winnebago County Dept. of Social

Services, 489 U.S. 189, 196 (1989)). In rejecting any

constitutional violation in Rust v. Sullivan, 500 U.S. 173, 193

(1991), this Court held that, "[t]he Government can, without

violating the Constitution, selectively fund a program to

encourage certain activities it believes to be in the public

interest, without at the same time funding an alternative

program which seeks to deal with the problem in another

way.”

As clearly enunciated in Rust, "when the Government

appropriates public funds to establish a program it is entitled

to define the limits of that program." Rust, 500 U.S. at 194.

An NEA grant is not an "entitlement" which Respondents may

claim a property interest. As noted by this Court in Rust, this

is not a case of the Government “suppressing a dangerous

idea," but of a prohibition on a project grantee or its

employees from engaging in activities outside of the project's

scope." Rust, 500 U.S. at 194.

ARGUMENT

THE GENERAL STANDARDS FOR DECENCY

PROVISION IS NOT FACIALLY

UNCONSTITUTIONAL IN LIGHT OF THE

HIGHER STANDARD APPLIED TO FACIAL

CHALLENGES AND BECAUSE THIS COURT’S

PRECEDENT HOLDS THAT TRIBUNALS

SHOULD DEFER TO THE NEA’S

INTERPRETATION OF THE PROVISION.

In A Facial Challenge, The General

Standards For Decency Provision Should Be

Construed As Constitutional To Avoid The

Constitutional Question.

On its face, the General Standards for Decency

provision does not transgress constitutional tenets.

Respondents must bear a heavy burden in a facial challenge

because “facial challenges to legislation are generally

disfavored." FW/PBS vy. City of Dallas, 493 U.S. 215, 224

(1990). In Rust v. Sullivan, 500 U.S. 173 (1991), this Court

noted the unique limitations to a facial challenge. This Court

held that "we are concerned only with the question whether,

on their face, the regulations are both authorized by the Act

and can be construed in such a manner that they can be

applied to a set of individuals without infringing upon

constitutionally protected rights." /d., at 183.

{T]he [Respondents] face a heavy burden in

seeking to have the regulations invalidated as

facially unconstitutional. "A facial challenge to

a legislative Act is, of course, the most difficult

challenge to mount successfully, since the

challenger must establish that no set of

circumstances exists under which the Act woul

be valid. The fact that [the regulations] might

operate unconstitutionally under some

conceivable set of circumstances is insufficient

to render [them] wholly invalid.”

Id. (quoting United States v. Salerno, 481 U.S. 739, 745

(1987)).

5 ‘

The General Standards for Decency provision reads:

{T]he 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.

20 U.S.C. § 954(d)(1).

In the district court, the NEA advanced two possible

constructions which avoid constitutional infirmity:

(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."

Finley v. NEA, 795 F. Supp. 1457, 1470 (C.D. Cal. 1992).

On its face, the provision supports a constitutional

construction. In NLRB v. Catholic Bishop of Chicago, 440

U.S. 490, 500 (1979), this Court held that "an Act of

Congress ought not be construed to violate the Constitution if

any other possible construction remains available." Under this

canon of statutory construction, "‘[t}he elementary rule is that

every reasonable construction must be resorted to, in order to

save a Statute from unconstitutionality."" Edward J.

DeBartolo Corp. v. Florida Gulf Coast Building &

Construction Trades Council, 485 U.S. 568, 575 (1988)

(quoting Hooper v. California, 155 U.S. 648, 657 (1895)).

The axiom articulated in Hooper is a categorical one -- “as

between two possible interpretations of a statute, by one of

which it would be unconstitutional and by the other valid, our

plain duty is to adopt that which will save the Act." Blodgett

v. Holden, 275 U.S. 142, 148 (1927) (opinion of Holmes, J.).

In the Ninth Circuit, the panel majority gave the

provision an implausible construction in order to elevate this

issue into a constitutional controversy. The Ninth Circuit held

that rather than merely take “decency and respect" into

consideration, as the provision reads on its face, the NEA is

commanded to use “decency and respect” as the conclusive

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

680 (9th Cir. 1996).

On the contrary, the terms of the provision merely

provide criteria for awarding grants. As with any artistic

award, some criteria must be established to determine which

artist will carry away the prize. For the Academy Awards,

the criteria is simply based upon the artistic merit of the

production -- thereby reflecting appreciation of the artist's

work. In the music industry as well, the criteria is largely

based upon sales of the recording -- thereby reflecting the

general public's appreciation of the artist's work. The district

court held that artistic decisions are by their nature

unavoidably subject to aesthetic criteria such as “artistic

merit" and “artistic excellence". Finley, 795 F. Supp. at

1475.

Central to the decision that one artist wins is the

concurrent decision that another artist must lose. Not every

film or recording may win “Best Picture" or "Single of the

Year". These decisions must have some criteria. Criteria

for artistic expression does not prohibit “taking into

consideration general standards of decency and respect" when

awarding a prize. As submitted by the NEA, “decency” and

"respect . . . are factors only to the extent that they are

implicit in the assessment of artistic merit." Finley, 795 F.

Supp. at 1470. This construction does not violate the

Constitution and is, therefore, a possible construction to the

provision on its face.

This Court has traditionally held that when the validity

of an Act of Congress is drawn into question, "it is a cardinal

principle that this Court will first ascertain whether a

construction of the statute is fairly possible by which the

question may be avoided." Crowell v. Benson, 285 U.S. 22,

62 (1932). This precept is based on the fact that a decree to

declare an Act of Congress unconstitutional "is the gravest and

most delicate duty that this Court is called on to perform.”

Blodgett, 275 U.S. at 148. As early as 1895 (Hooper) and to

date, this Court cultivated the corollary doctrine that

Congressional statutes "must be construed, if fairly possible,

so as to avoid not only the conclusion that it is

unconstitutional but also grave doubts upon that score."

United States v. Jin Fuey Moy, 241 U.S. 394, 401 (1916); see

also United States ex rel. Attorney General v. Delaware &

Hudson Co., 213 U.S. 366 (1909). This Court has, by

convention and practice, historically assumed that Congress

legislates in the light of constitutional limitations. FTC v.

American Tobacco Co., 264 U.S. 298, 305-307 (1924).

The uniqueness of a facial challenge to the provision at

issue should move this Court to determine the provision is

> Most important, as explained more fully below, artists are not

“entitled” to win a grant, just as no artist is “entitled” to an Oscar.

constitutionally sound and, therefore, avoid the question

entirely. The lower court’s disregard of this Court's long

precedent of deferring to the validity of Congressional

legislation should not be upheld. This Court should reverse

the Ninth Circuit’s opinion and find the provision is not, on

its face, constitutionally infirm.

B. The General Standards For

Decency Provision Should Be

Construed As Constitutional

Because This Court’s

Precedent Holds That

Tribunals Should Defer To

The NEA’S Interpretation Of

The Provision.

In Rust, this Court reviewed a regulation which

authorized the Secretary to make grants pursuant to Title X of

the Public Health Service Act ("Act") in the realm of family

planning projects. Under the Act, however, "[nJone of the

funds appropriated . . . [could] be used in programs where

abortion is a method of family planning." Rust, 500 U.S. at

178. Like this case, new regulations were later promulgated

to provide “operational guidance" on “how to preserve the

distinction between Title X programs and abortion as a method

of family planning." /d., at 179 (quoting 53 Fed.Reg.

2923-2924 (1988)). Like this case, the regulations merely

clarified Congress’ intent. In Rust, the regulations affirmed

that the grants should be used “only to support preventive

family planning services." Rust, 500 U.S. at 179. Much like

this case, the Rust case presented a facial challenge to the

regulations on the grounds that they "violate the First and

Fifth Amendment rights of Title X clients and the First

Amendment rights of Title X health providers." Jd., at 181.

Most important in this case, this Court held in Rust that

deference must be afforded to agencies when ambiguity is

present. In this case, both the district court and court of

appeals held the regulation is facially invalid because of

vagueness concerns and because it allows an overbroad grant

of discretion in interpreting the regulation. In Rust, however,

this Court held that, "[wJe need not dwell on the plain

language of the statute because we agree with every court to

have addressed the issue that the language is ambiguous." /d..,

at 184. Like Rust, the lower courts have determined the

language at issue is ambiguous (thereby vague) and

unconstitutional.

Citing Chevron U.S.A. Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984), however, this

Court held in Rust that under a facial challenge, "substantial

deference is accorded to the interpretation of the authorizing

statute by the agency authorized with administering it."

Chevron, 467 U.S. at 844. In Chevron, this Court stated,

"the question for the court is whether the agency’s

[interpretation] is based on a permissible construction of the

statute." /d., at 842-843. Noting the "broad language” within

the Act, this Court rejected the facial challenge in Rust, noting

that "we are unable to say that the Secretary's construction of

the prohibition in § 1008 to require a ban on counseling,

referral, and advocacy within the Title X _ project is

impermissible." Rust, 500 U.S. at 184.

In the district court, the NEA argued that "decency"

and “respect . . . are factors only to the extent that they are

implicit in the assessment of artistic merit." Finley, 795 F.

Supp. at 1470. The district court rejected this interpretation,

holding that the NEA’s construction was not entitled to

deference because it was "manifestly contrary to congressional

intent." Jd., at 1470 (quoting Chevron, 467 U.S. at 844).

The Ninth Circuit contended that:

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 a™i works. Members of

Congress noted that the "decency and respect"

provision would prevent the funding of similar

works in the future. 136 Cong. Rec. H9410-57

(Oct. 11, 1990).

Finley, 100 F.3d at 676-77 (footnote omitted).

This Court’s holding in Chevron is enlightening in

respect to the Ninth Circuit’s assertion that political forces

motivated the NEA’s (or Congress’) revised approach to grant

making. In Chevron, this Court rejected the argument that an

agency's interpretation "is not entitled to deference because it

represents a sharp break with prior interpretations." Chevron,

467 U.S. at 862. An agency is not required to "establish

rules of conduct to last forever,’" Motor Vehicle Mfrs. Assn.

of United States, Inc. v. State Farm Mut. Automobile Ins. Co. ,

463 U.S. 29, 42 (1983) (quoting American Trucking Assns.,

Inc. v. Atchison, T. & S.F.R. Co., 387 U.S. 397, 416 (1967);

NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775

(1990)), but rather “must be given ample latitude to ‘adapt

{its} rules and policies to the demands of changing

circumstances.’" Motor Vehicle Mfrs., supra, 463 U.S. at 42

(quoting Permian Basin Area Rate Cases, 390 U.S. 747, 784

(1968)). In Rust, this Court followed its reasoning in Chevron

by upholding the Secretary's decision, noting that:

in the wake of the critical reports of the General

Accounting Office (GAO) and the Office of the

Inspector General (OIG), the prior policy failed

to implement properly the statute and that it was

necessary to provide “‘clear and operational

guidance’ to grantees about how to preserve the

distinction between Title X programs and

abortion as a method of family planning.” 53

Fed. Reg. 2923-2924 (1988). He also

determined that the new regulations are more in

keeping with the original intent of the statute,

are justified by client experience under the prior

policy, and are supported by a shift in attitude

against the “elimination of unborn children by

abortion.” We believe that these justifications

are sufficient to support the Secretary's revised

approach.

Rust, 500 U.S. at 187.

Noting the unique limitations of a facial challenge, this

Court held in Rust that great deference must be afforded to the

agency charged with administering the program at issue. As

held in Rust, an agency's interpretation need not be the only

possible interpretation, it must simply be one which is not

contrary to Congressional intent. “When placed in context .

_ . the statements fall short of evidencing a congressional

intent that would render the Secretary's interpretation of the

statute impermissible. While [Respondents’] interpretation of

the legislative history may be a permissible one, it is by no

means the only one, and it is certainly not the one found by

the Secretary." /d., at 189.

Like Rust, the Respondents face a heavy burden in

seeking to have the provision invalidated as facially

unconstitutional because a facial challenge to a legislative Act

is the most difficult challenge to mount successfully. The

“challenger must establish that no set of circumstances exists

under which the Act would be valid. The fact that [the

regulations] might operate unconstitutionally under some

conceivable set of circumstances is insufficient to render

[them] wholly invalid.” Rust, 500 U.S. at 183. Like Rust,

the NEA should be allowed the necessary discretion to

administer the grants-in-aid program pursuant to Congress’

intent and should be allowed the deference accorded to other

federal agencies in interpreting the provision.

THE GENERAL STANDARDS FOR DECENCY

PROVISION IS NOT FACIALLY

UNCONSTITUTIONAL BECAUSE NO PERSON

OR ENTITY MAY CLAIM AN "ENTITLEMENT"

TO THE AWARD OF A GRANT.

In this case, the Respondents assert a “property”

interest in receiving government subsidies of their artistic

expression. In order for an artist to possess a “property”

interest in an NEA grant, the artist must first “have a

legitimate claim of entitlement to it." Board of Regents v.

Roth, 408 U.S. 564, 567 (1972). This Court has

long-recognized the principle that "‘the Due Process Clauses

generally confer no affirmative right to governmental aid,

even where such aid may be necessary to secure life, liberty,

or property interests of which the government itself may not

deprive the individual.’" Webster v. Reproductive Health

Services, 492 U.S. 490, 507 (1989) (quoting DeShaney v.

Winnebago County Dept. of Social Services, 489 U.S. 189,

196 (1989)).

"The Government has no constitutional duty to

subsidize an activity merely because the activity is

constitutionally protected ... ." Rust v. Sullivan, 500 U.S.

173, 182 (1991). This Court has repeatedly instructed that the

Constitution is not violated when Congress subsidizes some

speech, but not all speech. Rust, supra; Regan v. Taxation

without Representation of Wash. , 461 U.S. 540 (1983); Harris

v. McRae, 448 U.S. 297 (1980); Maher v. Roe, 432 U.S. 464

(1977); Buckley v. Valeo, 424 U.S. 1 (1976).

In rejecting any constitutional violation in Rust, this

Court held that, "[t}he Government can, without violating the

Constitution, selectively fund a program to encourage certain

activities it believes to be in the public interest, without at the

same time funding an alternative program which seeks to deal

with the problem in another way." Rust, 500 U.S. at 193. In

Regan, this Court held that Congress could refuse to subsidize

the lobbying activities of certain organizations by prohibiting

them from using tax-deductible contributions, holding that

such organizations remained free “to receive deductible

contributions to support . . . nonlobbying activit[ies].”

Regan, 461 U.S. at 545. “[A] legislature's decision not to

subsidize the exercise of a fundamental right does not infringe

the right." /d. at 549. In Maher, this Court reviewed a state

welfare regulation under which Medicaid recipients received

payments for medical services related to childbirth, but not for

nontherapeutic abortions. This Court refused the assertion

that such unequal subsidization violated the Constitution,

holding that the government may “make a value judgment

favoring childbirth over abortion, and . . . implement that

judgment by the allocation of public funds." Maher, 432 U.S.

at 474.

In funding one artist and not another, “the Government

has not discriminated on the basis of viewpoint; it has merely

chosen to fund one activity to the exclusion of the other.”

Rust, 500 U.S. at 193. See also Cammarano v. United States,

358 U.S. 498, 513 (1959). The NEA grant program was

conceived to provide grants for works that are “of significant

merit” or are “of substantial artistic and cultural significance”.

20 U.S.C. § 954(c)(1), (2), (4) - (6). A grant awarded by the

NEA is not an “entitlement” that an artist may assert is a

vested claim, but is limited to specific criteria and demanding

reporting requirements. 20 U.S.C. § 954(h). Merely refusing

a grant application does not forbid any conduct or artistic

expression. As this Court has held, a “refusal to fund

protected activity, without more, cannot be equated with the

imposition of a ‘penalty’ on that activity." McRae, 448 U.S.

at 317,n.19. “There is a basic difference between direct state

interference with a protected activity and state encouragement

of an alternative activity consonant with legislative policy."

Maher, 432 U.S. at 475.

To hold that the Government unconstitutionally

discriminates on the basis of viewpoint when it

chooses to fund a program dedicated to advance

certain permissible goals, because the program

in advancing those goals necessarily discourages

alternative goals, would render numerous

Government programs constitutionally suspect.

Rust, 500 U.S. at 194.

Like the argument rebuffed by this Court in Rust, the

Respondents’ assertions “ultimately boil down to the position

that if the government chooses to subsidize one protected

right, it must subsidize analogous counterpart rights. But the

Court has soundly rejected that proposition.” /d., at 194.

(citing Regan, 461 U.S. 540; McRae, 448 U.S. 297; and

Maher, 432 U.S. 464.). As clearly enunciated in Rust, "when

the Government appropriates public funds to establish a

program it is entitled to define the limits of that program."

Rust, 500 U.S. at 194.

An NEA grant is not an “entitlement” which

Respondents may claim a property interest. On the contrary,

the NEA grants-in-aid program merely established limited

funding for limited artistic ventures. As noted by this Court

in Rust and Regan, this is not a case of the Government

“suppressing a dangerous idea,” but of a prohibition on a

project grantee or its employees from engaging in activities

outside of the project's scope." Rust, 500 U.S. at 194;

Regan, 461 U.S. at 548.° “The condition that federal funds

will be used only to further the purposes of a grant does not

violate constitutional rights." Rust, 500 U.S. at 198.

* This Court has recognized that Congress’ power “to allocate

funds for public purposes includes an ancillary power to ensure that

those funds are properly applied to the prescribed use." South

Dakota v. Dole, 483 U.S. 203, 207-209 (1987) (upholding against

Tenth Amendment challenge requirement that States raise drinking

age as condition to receipt of federal highway funds).

CONCLUSION

For the forgoing reasons, the opinion of the Ninth

Circuit Court of Appeals should be reversed.

Respectfully submitted,

Mathew D. Staver*

Frederick H. Nelson

Nicole Arfaras Kerr

- LIBERTY COUNSEL

1900 Summit Tower Blvd.

Suite 560

Orlando, Florida 32810

(407) 875-2100

*Counsel of Record

January 9, 1998

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.