# Amicus Curiae Brief — National Endowment for Arts v. Finley

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0117%3A11

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1998
- **Citation:** 524 U.S. 569

## Text

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
v.

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

0

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

iv

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

Vv
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
v.
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.

2

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

3

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

4

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.

5

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

6

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

7

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

9

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

10

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).

11

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

12

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

13

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

14

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

15

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).

16

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).

17

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

18

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.

19

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.

20

§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.

21

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

22

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.

23

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

4

NATIONAL ENDOWMENT FOR THE ARTS, ET AL..,
Petitioners,

V.
KAREN FINLEY, ET AL.,
Respondents.

7

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

A.

In A Facial Challenge, The General
Standards For Decency Provision Should
Be Construed As Constitutional To Avoid

il
B.

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,

Ee

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

iV

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

Vv

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

l
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.

2
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

3

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.

4
A.

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)).

6

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.

8

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.

9

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).

10
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

12

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

13

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

14

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.

15

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).

16
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0117%3A11. Public record. Not legal advice.