Amicus Curiae Brief — National Endowment for Arts v. Finley

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Supreme Court of the Unt&s States

" THI . .

MILLER, JASPER JOHNS, HANS HAACKE, COOSJI

VAN BRUGGEN, E.L. DOCTOROW, NANCY SPERO,

LEON GOLUB, ANDRES SERRANO, ROBERT

COLESCOTT, TONY KUSHNER, LUIS CRUZ

AZACETA, TERRENCE MCNALLY, BARBARA

KRUGER, DAVID HAMMONS, ADRIAN PIPER,

SUSAN ROTHENBERG, BRUCE NAUMAN, ERICA

JONG, AND RICHARD SERRA, AMICI CURIAE,

TABLE OF CONTENTS

TABLE OF AUTHORITIES .

INTEREST OF THE AMICI CURIAE.

SUMMARY OF ARGUMENT .

ARGUMENT ..

THE “DECENCY” AND “RESPECT”

PROVISIONS OF THE NEA STATUTE

ARE UNCONSTITUTIONALLY VAGUE

UNDER THE FIFTH AMENDMENT

A. “General Standards Of Decency”.

B. “Respect For The Diverse Beliefs And

Values Of The American Public”......

The “Decency” And “Respect”

Provisions Cause The Harm That

The Vagueness Doctrine Attempts

To Avoid

“ARTISTIC EXCELLENCE” AND

‘ARTISTIC MERIT” ARE NOT

UNCONSTITUTIONALLY VAGUE...

A There Are Established Standards Of

“Artistic Excellence” And “Artistic

Merit”.

“Artistic Excellence” And “Artistic

Merit” Must Be Evaluated Within

The Particular Context Of The

NEA Program

PAGE

C. “Artistic Excellence” And “Artistic

Merit” Do Not Include “Standards

of Decency” And “Respect For

The Diverse Beliefs And Values Of

The American Public” .................. 28

RR a EE no sea cbdlepeanes 30

RCE NES SE oy a ee ee la

TABLE OF AUTHORITIES

Cases

American Communications Assn. v. Douds,

a ecauenees 25

Buckley v. Valeo, 424 U.S. 1 (1976) ................... 6

City of Cincinnati v. Discovery Network, Inc.,

RR enka eee 15

Coates v. City of Cincinnati, 402 U.S. 611 (1971) .... 5

Cohen v. California, 403 U.S. 15 (1971) .............. 7

FCC v. Pacifica Foundation, 438 U.S. 726 (1978) .... 7

Grayned v. City of Rockford, 408 U.S 104

Ce ee kb tens 15, 25, 27

Hannegan v. Esquire, Inc., 327 U.S. 146 (1946) ...... 15

Hoffman Estates v. The Flipside, Hoffman Estates,

ee A CO, ow. ces cceerovacseeess 6

Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952).. 9

Keyishian v. Board of Regents, 385 U.S. 589 (1967). 6

PAGE

Kingsley Pictures Corp. v. Regents, 360 U.S. 684

SPEC divest dbéadehinpbdedenbicvont 2 otk 14

Reno v. American Civil Liberties Union.

117 S.Ct. 2329 (1997) ........ 0. eee cece cence. s

Smith v. Goguen, 415 U.S. 566 (1974).............._. 5,6

Constitution, Statutes and Rules

United States Constitution

QMNOBG. Be co cccvcicvccccccccscvcedccdcccscecceesces passim

A passim

20 U.S.C. § 954(d) ooo. cee. passim

20 U.S.C. § 9S4(d)(1) 200. passim

20 U.S.C. § 955(b) ... ee. 27

20 U.S.C. § 959(c)(2) ©. eee. 27

Arts, Humanities and Museum Amendments of 1990.

Title 1, Pub. L. No. 101-512, § 318, 104 Stat.

1960 (1990), reprinted in 1990 U.S.C.C_A.N.

COUP MRD SOD. ccc cccnnscvcceccvccsocsctececcecs, l

Communications Decency Act of 1996, 47 U.S.C.

§ 223(a) (Supp.1997) ...... 0. cece cece eee. 8

National Foundation on the Arts and Humanities Act

of 1965, 20 U.S.C. §§ 951 et seg.................. 4

Supreme Court Rule 37.3(a)........................... l

Legislative Materials

95 Cong. Rec. H 11584 (Aug. 16,1949)... 13

135 Cong. Rec. S 5595 (daily ed. May 18, 1989)...... 11

135 Cong. Rec. S 12968 (Oct. 7, 1989)................

Department of the Interior and Related Agencies

Appropriations for 1993, Hearings Before the

Subcomm. on the Department of the Interior

and Related Agencies of the House Comm. on

Appropriations, 102 Cong., 2d Sess. (May 5,

BODES cccc<evedcetevkancepnkakadesedssrecaduanesabens

Department of the Interior and Related Agencies

Appropriations for 1992, Hearings before the

Subcomm. on the Department of the Interior

and Related Agencies of the House Comm. on

Appropriations, 102d Cong., Ist Sess. (Feb. 21,

SOOED knvccducccvdenencckdccestvasvbeussebecetanetssse

Other Materials

The American Heritage Dictionary of the English

Language (3d ed. 1996)...........0.ccceeceeeeeees

Archer, Michael, Art Since 1960 (1997)...............

Arnason, H.H., History of Modern Art (3d. ed. 1986).

Askew, Pamela, Caravaggio's Death of the Virgin

CORN vccikncocéaccesds cnudeueddnenutapsapedesdhuals

Baron, Stephanie, ed., “Degenerate Art”: The Fate

of the Avant-Garde in Nazi Germany (1991) .....

Belting, Hans, The End of the History of Art

(Christopher S. Wood trans. 1987) ...............

Carmilly-Weinberger, Moshe, Fear of Art: Censorship

and Freedom of Expression in Art (1986) ........

PAGE

Clapp, Jane, Art Censorship: A Chronology of

Proscribed and Prescribed Art (1972) ...... 7,8, 10, 11

Clark, T.J., The Painting of Modern Life: Paris

in the Art of Manet and His Followers (1984)...._ 22

Danto, Arthur C., After the End of Art: Contemporary

Art and the Pale of History (1997) ............... 17, 25

Fernie, Eric, “A History of Methods,” Art History

and Its Methods: A Critical Anthology (1995) ...18, 19

Four Frames on America, N.Y. Times, July 6, 1991 .. 11

Gardner, Helen, Gardner's Art Through the Ages

GEE vents cts titbdbseiidcdinincktida te 11

Greenberg, Clement, “The Identity of Art,” 4 The

Collected Essays and Criticism (John O’ Brian,

a a | 26

Hegel, G.W.F., Introductory Lectures on Aesthetics

(Michael Inwood ed. & Bernard Bosanquet

trans., Penguin Books 1993)...................... 17

Janson, H.W. and Anthony F. Janson,

History of Art (Sth ed. rev. 1997)..... 10, 20, 21, 22, 24

Janson, H.W., History of Art (1st ed. 1962) ........... 17

Mairowitz, David Zane, Fascism a la Mode: in

France, the Far Right Presses for National

Purity, Harper's Magazine, Oct. 1997............ 13

A ee ere Te 11

Pliny the Elder, Natural History, reprinted in H.W.

Janson and Anthony F. Janson, History of Art

8, PP a see 18

PAGE

Poussin, Nicholas, an undated manuscript, reprinted

in H.W. Janson and Anthony F. Janson, History

af Art (St OB. GBC. TGPT) 2.0.00. cccccccescccesececes 21

Reynolds, Sir Joshua, Discourses on Art (Robert R.

tS a ee ee ere 21

Richard, Paul, Robert Colescott's Perspectives on

Black and White, The Washington Post, Jan. 20,

DOG cc xk <cnwicenecnsccusenetasdteenentihetets<atsts 12

Roberts, Roxanne, Hammering the Body Politic;

Blacks Wreck a Portrait of a Blond, White Jesse

Jackson, Time, Dec. 18, 1989...............055-- 12

Roberts, Roxanne, Jackson: Not Insulted by Painting;

Says Destruction of Portrait Reflects Hidden

Anger, The Washington Post, Dec. 4, 1989....... 12

Rosenblum, Robert and H.W. Janson,

19th Century Art (1984) ...... 26.0600 cece eeees 22, 23, 26

Russell, John, Turbulent Restatements from Robert

Colescott, N.Y. Times, Mar. 3, 1989.............. 12

Traynor, lan, Austrian Far Right Turns the Arts into

Theatre of War, The Guardian, Dec. 14, 1995.... 14

1 Vasari, Giorgio, Lives of the Artists (George Bull

trans., Penguin Books 1965).............--....55: 19

Waxman, Sharor, Artists Put on Brakes at France's

Right Turn; Some Urge Boycott in National Front

Towns, The Washington Post, June 22, 1995 ..... 14

Whitford, Frank, Egon Schiele (1981)..............+-. 7

Wypijewski, Joann, ed., Painting By Numbers: Komar

and Melamid's Scientific Guide to Art (1997).... 29

Claes Oldenburg, Arthur Miller, Jasper Johns, Hans

Haacke, Coosje van Bruggen, E.L. Doctorow, Nancy Spero,

Leon Golub, Andres Serrano, Robert Colescott, Tony Kush-

ner, Luis Cruz Azaceta, Terrence McNally, Barbara Kruger,

David Hammons, Adrian Piper, Susan Rothenberg, Bruce

Nauman, Erica Jong, and Richard Serra submit this brief as

amici curiae in support of respondents. The parties to the

action have given their written consent to the filing of this

brief pursuant to Rule 37.3(a) of the Rules of this Court. The

letters of consent have been filed with the Clerk.

INTEREST OF THE AMICI CURIAE

The amici curiae are 20 distinguished visual and literary

artists, who share an interest that the creation of art be judged

on standards of excellence and merit that are free of restric-

tions based on the viewpoint of the artist. Because the amici

have extensive experience in the arts, they believe that they

can offer the Court views about the creation and evaluation of

the arts that are relevant to the Court's consideration of the

issues in this case.

The visual artists among the amici have created works—

sculpture, paintings, constructions, prints, photographs—that

exemplify many of the major artistic movements since the

1940s. Works of these artists are included in the permanent

collections of major museums in the United States and

abroad, including the Smithsonian Institution, the National

Gallery of Art, the Metropolitan Museum of Art, the Museum

of Modern Art, the Art Institute of Chicago, the Pompidou

Center in Paris, the Tate Gallery in London, the National

Gallery of Canada, and the National Gallery of Australia.

The literary artists among the amici have created novels

and plays that are read and produced woridwice, and the

excellence of their work has been recognized with awards,

such as the Pulitzer Prize, the Antoinette Perry Award (the

“Tony”), the Emmy Award and the National Book Award.

Some of the amici have served on NEA panels of experts,

and one was the recipient of an NEA grant earlier in her

career.

The amici use their work as a vehicle for the expression of

ideas, viewpoints, or beliefs, and they are troubled by any

governmental effort to control protected expression in artis-

tic work—whether directly or indirectly —through the selec-

tive withholding of subsidies. A work of one of the amici,

Andres Serrano, which appeared in an NEA-funded exhibi-

tion, was attacked during the 1989 and 1990 congressional

debates regarding the NEA, and the institution that exhibited

the work was subsequently penalizes, because some con-

gressional representatives and their constituents perceived the

work as blasphemous.

The work of visual and literary artists is often intended to

challenge the viewer or rcader and to provoke thought. The

imposition of vague, viewpoint-based restrictions, such as the

“decency” and “respect” provisions at issue in this case, as

criteria for funding the arts infringes protected First Amend-

ment expression. These provisions authorize public officials

to apply such standards based on their personal interpreta-

tions, and they cause artists and arts organizations that rely on

public funding to engage in self-censorship rather than risk

the loss of funding. Not only do such vague standards squelch

creativity and artistic innovation, they foster the proliferation

of art striving to satisfy the lowest common denominator.

Because the amici are concerned that artistic expression not

be subjected to government censorship in the form of vague

restrictions that invite judgment based on viewpoint, they join

in urging this Court to affirm the court of appeals’ decision.

SUMMARY OF ARGUMENT

1. The “decency” and “respect” provisions of the NEA

statute conflict with the Fifth Amendment because they are

unconstitutionally vague. Neither “general standards of

decency” nor “respect for the diverse beliefs and values of the

American public” are terms that can be understood—- without

guesswork—either by NEA applicants or NEA personnel

charged with making the funding decisions. Depending upon

the perspective of the decision-maker, such terms could

encompass much of the art that we flock to museums to see,

because it might offend some Americans’ views of what is

politically correct, morally acceptable, sexually restrained, or

religiously orthodox.

The vagueness of the terms makes the statute vulnerable to

the very ills that the vagueness doctrine is meant to prevent:

the exercise of unbridled discretion by the decision-maker and

self-censorship by applicants anxious to avoid the statutory

prohibitions.

2. The statutory standards of “artistic excellence” and

“artistic merit” are not unconstitutionally vague. To evaluate

art in a meaningful sense, the evaluator must have knowledge

about the art work in question, experience in looking at sim-

ilar works, and understanding of the history of art and recent

developments in the art world. By requiring that the NEA

advisory panels and the NEA Council be comprised of indi-

viduals knowledgeable in the arts, Congress recognized that

such experts would have the requisite experience to make fair

and informed decisions when determining which works have

artistic excellence and merit. The expertise that qualifies the

NEA panelists and Council members to make judgments

about artistic merit, however, does not include reference to

“standards of decency” and the “respect for the diverse beliefs

and values of the American public.” Furthermore, no defini-

tion of “artistic excellence” and “artistic merit” can include

the conformity and orthodoxy necessarily imposed by the

“decency” and “respect” provisions, because such standards

are fundamentally antithetical to the making of art.

ARGUMENT

THE “DECENCY” AND “RESPECT” PROVISIONS OF

THE NEA STATUTE ARE UNCONSTITUTIONALLY

VAGUE UNDER THE FIFTH AMENDMENT

On November 5, 1990, Congress passed the Arts, Human-

ities and Museum Amendments of 1990 (the “Act”), as the

finale to a year of contentious debate brought about by con-

gressional efforts to dictate the content and viewpoint of art

funded by the National Endowment for the Arts (“NEA”).'

The Act amended the enabling legislation in certain respects;

in particular, it amended 20 U.S.C. § 954(d) so that it now

reads in pertinent part:

No payment shall be made under this section except. . .

in accordance with regulations issued and procedures

established by the [NEA] Chairperson. In establishing

such regulations and procedures, the Chairperson shall

ensure that—

(1) artistic excellence and artistic merit are the

criteria by_which applications are judged, taking

into consideration general standards of decency and

respect for the diverse beliefs and values of the

American public; and

(2) applications are consistent with the purposes of

this section. Such regulations and procedures shall

clearly indicate that obscenity . . . shall not be

funded... .

(the “ ‘decency’ and ‘respect’ provisions” or “Section 954

(d)(1)”).

| Pet. App. 102a-103a. Pub. L. No. 101-512, § 318, 104 Stat. 1960

(1990), reprinted in 1990 U.S.C.C.A.N. (104 Stat.) 1960. Title I of the

Act amended the National Foundation on the Arts and Humanities Act of

1965, 20 U.S.C. §§ 951 et seq.

Thus, under the amended statute, awards of NEA grants are

ultimately contingent upon the NEA Chairperson’s determi-

nation that the applications are consistent with “general stan-

dards of decency” and with “respect for the diverse beliefs and

values of the American public.” As implemented by the NEA

Chairperson, each member of the peer review panels that

review applications for NEA grants, each member of the

National Council that advises the Chairperson, and all the state,

local, and private arts organizations authorized to make sub-

grants of NEA funds are all charged with ensuring that their

decisions consider “general standards of decency” and “respect

for the diverse beliefs and values of the American public.”

Upon challenge by respondents, both the district court, Pet.

App. 76a-78a, and the court of appeals, Pet. App. 14a-19a,

invalidated the “decency” and “respect” provisions as uncon-

stitutionally vague in violation of the Fifth Amendment’s due

process clause. As the court of appeals recognized, the

“decency” and “respect” provisions are unconstitutional

because “ ‘no standard of conduct is specified at all’ ” and

“the statute thus provides no ‘ascertainable standard for inclu-

sion and exclusion.’ ” Pet. App. 17a (quoting Coates v. City

of Cincinnati, 402 U.S. 611, 614 (1971) and Smith v. Goguen,

415 U.S. 566, 578 (1974)).

In the face of these holdings, the NEA persists in its con-

tention that “Congress's use of imprecise terms in awarding

grants does not penalize speech in any meaningful sense.”

Pet. Br. 47. This contention completely ignores the well-

established principle that when a vague statute touches

2 See J.A. 12, 33; Department of the Interior and Related Agen-

cies Appropriations for 1992, Hearings before the Subcomm. on the Dep't

of the Interior and Related Agencies of the House Comm. on Appropri-

ations, 102d Cong., Ist Sess. 234 (Feb. 21, 1991) (testimony of NEA

Chairperson John Frohnmayer); Department of the Interior and Related

Agencies Appropriations for 1993, Hearings Before the Subcomm. on the

Dep't of the Interior and Related Agencies of the House Comm. on

Appropriations, 102 Cong., 2d Sess. 613-14 (May 5, 1992) (testimony of

NEA Chairperson Anne-Imelda Radice).

protected First Amendment expression, the vagueness

doctrine “demands a greater degree of specificity than in

other contexts.” Smith, 415 U.S. at 573: Buckley v. Valeo, 424

U.S. 1, 41 (1976). And while a greater degree of vagueness is

tolerated with respect to civil enactments because the con-

sequences are less severe, that exception does not apply

where a statute’s vagueness “threatens to inhibit the exercise

of constitutionally protected rights . . . [such as] free

speech.” Hoffman Estates v. The Flipside, Hoffman Estates,

Inc., 455 U.S. 489, 499 (1982): Keyishian v. Board of

Regents, 385 U.S. 589, 603-04 (1967). Section 954(d)(1)’s

requirement that the evaluation of grant applications take into

consideration “general standards of decency and respect for

the diverse beliefs and values of the American public” does

not satisfy, in any respect, the “greater specificity” standard

required by Smith and Hoffman.

A. “General Standards Of Decency”

On its face, “decency” is defined in terms of vague and

undefined standards of propriety or morality. According to

The American Heritage Dictionary of the English Language

483 (3d ed. 1996), “decency” is

the state or quality of being decent: propriety. . . . Con-

forming to prevailing standards or propriety or modesty,

and “decent” is

characterized by conformity to recognized standards of

propriety or morality. . . . Free from indelicacy; mod-

est. . . . Meeting acceptable standards: adequate. . .

Morally upright; respectable. . . .

Such definitions do not provide the greater specificity

required by Smith and Hoffman to save the phrase “general

standards of decency” from unconstitutional vagueness. They

provide artists and art institutions no guidance whatsoever

about what qualities or elements, if found in an artistic work,

would trigger rejection under Section 954(d)(1), and they do

not prescribe explicit standards for NEA judging officials to

use in making funding determinations. As the court of appeals

noted, “[the NEA decision-makers] have no. . . expertise in

applying such free-floating concepts as ‘decency’ and

‘respect.’ ” Pet. App. 19a n.18. Just as “one man’s vulgarity

[may be} another's lyric” (Cohen v. California, 403 U.S. 15,

25 (1971)), so too may works of art be “decent” or not

depending on a viewer’s own particular background and per-

sonal philosophy. See FCC v. Pacifica Foundation, 438 U.S.

726, 742 (1978) (“for indecency is largely a function of con-

text—it cannot be adequately judged in the abstract”).

For example, what is “decent” is likely to run afoul of some

viewer’s standards of propriety regarding sexuality and

nudity. Examples of art works that have provoked objections

to allegedly explicit sexuality or excessive nudity range from

Michelangelo’s Last Judgment (1534-41) (App. 2a), to

Rodin’s “The Kiss” (1886-98) (App. 3a), to Edouard Manet’s

1863 “Déjeuner sur I’herbe” (Luncheon on the Grass) (App.

4a), to much of the work of Egon Schiele,’ whose oeuvre was

recently featured in a retrospective exhibition at the Museum

of Modern Art in New York City. In fact, Schiele’s work was

so offensive to his Austrian contemporaries, that in 1913 he

was convicted of creating pornography at a trial during which

the judge burned one of his pictures in the courtroom.‘

Although Michelangelo's “David” (1501-1504) (App. 5a) and

Henri Matisse’s “Hindu Pose” (1923) (App. 6a) managed to

escape serious censure in their own times, each has been the

subject of outrage in modern times: a replica of the David was

seized in 1966 in Beverly Hills for “appearing without a

figleaf” and the U.S. Post Office revoked the mailing permit

Jane Clapp, Art Censorship: A Chronology of Proscribed and

Prescribed Art, 143-45, 167, 369 (1972).

* Frank Whitford, Egon Schiele 115 (1981).

of an issue of a fine arts publication because it contained

reproductions of nudes, including “Hindu Pose.”®

Even assuming that an artist applying for a grant could haz-

ard a guess about what is meant by “decency” in the statute,

the applicant could never know with any degree of certainty

what is the “general standard” referred to in the statute or

what “general standard” NEA decision-makers were using. Is

the same general standard applied in Kansas City and New

York City? If there are differing standards, who decides which

standard to apply?

In Reno v. American Civil Liberties Union, 117 S.Ct. 2329

(1997), this Court considered the Communications Decency

Act of 1996 (the “CDA”) which attempted to restrict access

to speech on the Internet that was “indecent.” 47 U.S.C.

§ 223(a) (Supp.1997). Like the NEA “decency” and “respect”

provisions, the CDA did not further define or qualify “inde-

cent.” This Court invalidated the decency provision of the

CDA statute, concluding that the vagueness of such termi-

nology raised special constitutional concerns because of its

“obvious chilling effect on free speech.” Reno, 117 S.Ct at

2344. The NEA “decency” provision suffers from the same

defect. Without further definition, “general standards of

decency” provides no standard at all; worse, such a vague for-

mulation both encourages the rejection of art because of the

viewpoint the art may express and dampens the free expres-

sion of ideas by artists and arts organizations that seek NEA

funding.

B. “Respect For The Diverse Beliefs And Values Of The

American Public”

The meaning of the phrase “diverse beliefs and values of

the American public” is as opaque as is “general standards

of decency.” Which particular set of beliefs and values is to

Clapp, supra note 3, at 265, 323-25, 369.

4 ———

Le hE ed AE ee me oe

serve as the standard for selection? Although the statute rec-

ognizes that the beliefs and values of the American public are

“diverse,” it fails to indicate which values should prevail if

respecting one set of values means offending another. Who is

to make this subjective judgment? Since Section 954(d)(1)

designates the NEA’s Chairperson as the final arbiter of what

art conforms to the “decency” and “respect” provisions, does

this mean that the Chairperson is empowered to reject any

grant application that he or she believes criticizes or questions

the political, religious, or moral values of some part of the

American public?

“Respect for the diverse beliefs and values of the American

public” is necessarily defined with reference to religion, pol-

itics, racial or ethnic attitudes, and attitudes about human sex-

uality, among other beliefs and values. Within each of these

spheres, there is ample potential for discordant views and atti-

tudes, depending upon the point of view of the person doing

the evaluating.

Assuming that religion is included among the American

beliefs and values that an arts grant must respect, it is quite

possible that depicting religious figures or symbols in uncon-

ventional contexts or in unflattering postures may be con-

sidered indecent or disrespectful. See Joseph Burstyn, Inc.

v. Wilson, 343 U.S. 495, 504-05 (1952) (“In seeking to apply

the broad and all-inclusive definition of ‘sacrilegious’ .

the censor is set adrift upon a boundless sea amid a myriad

of conflicting currents of religious views, with no charts

but those provided by the most vocal and powerful ortho-

doxies”).

For example, Paolo Veronese’s 1573 painting “Christ in

the House of Levi” (App. 7a) now hanging in the Galleria

dell’ Accademia in Venice, was criticized by the religious

tribunal of the Inquisition because it included figures—

a dwarf, jesters, servants, and a dog—considered inappro-

priate alongside the Holy Figures.’ Michelangelo's “Last

Judgment” (App. 2a) (1534-41) was censored in part because

of the nudity of the figures, a defect that Pope Paul IV finally

cured in 1558 by having draperies and loincloths painted over

the offending body parts;’ and Caravaggio’s “Death of the

Virgin” (1605-06) (App. 8a), first commissioned as an altar-

piece, was then rejected as blasphemous because the Virgin

® H.W. Janson and Anthony F. Janson, History of Art 494-95 (Sth

ed. rev. 1997). The painting was originally known as “The Last Supper.”

On July 17, 1573, Veronese was summoned by the Holy Office to be

questioned before the Holy Tribunal, Paolo Caliari of Verona:

. . .Q: Who are at the table of Our Lord?

The Twelve Apostles.

What is St. Peter, the first one, doing?

Carving the lamb in order to pass it to the other end of the

table.

What is the Apostle next to him doing?

He is holding a dish in order to receive what St. Peter will give

him.

Q: Tell us what the one next to this one is doing.

A: He has a toothpick and cleans histeeth. . .

Q: Did any one commission you to paint Germans, buffoons, and

similar things in that picture?

A: No, milords, but I received the commission to decorate the pic-

ture as I saw fit. It is large and, it seemed to me, it could hold

many figures.

Q: Are not the decorations which you painters are accustomed to

add to paintings or pictures supposed to be suitable and proper

to the subject and the principal figures or are they for plea-

sure—simply what comes to your imagination without any

discretion or judiciousness?

A: I paint pictures as well as I see fit and as well as my talent

permits.

Id. at 634-65. To appease his critics, the artist consented to changing the

title to “Christ in the House of Levi.” /d. at 495.

” Clapp, supra note 3, at 61. Moshe Carmilly-Weinberger, Fear of

Art: Censorship and Freedom of Expression in Art 17-18 (1986).

7 Oe

2 ©

figure in the picture was modeled after a prostitute and was

bare-footed.*

Although it is easy to dismiss such attitudes as the unen-

lightened views of the 16th and 17th centuries, recent history

shows that artists are not immune from those who consider

blasphemous the use of religious symbols in artistic expres-

sion. For example, in 1928 George Grosz, a well-known

German artist, and his publisher were prosecuted for depict-

ing “Christ in a Gas Mask” (App. 9a).’ In 1991, a “photo-

allegory” by the artist Duane Michals drew criticism for

depicting a crucifix, pointed gun-like at the head of a victim,

to show the artist’s belief that “no American has the right to

impose his private morality on any other American” (App.

10a).'° And Senator Jesse Helms used Andres Serrano’s 1987

photograph “Piss Christ” (App. lla) as a focal point in his

attack on the NEA’s 1989 appropriations.'' If offending reli-

gious sensibilities is a criterion for denying NEA funds, such

a rule might exclude Max Ernst’s 1926 “The Holy Virgin

Chastising the Infant Jesus Before Three Witnesses: Andre

Breton, Paul Eluard and the Artist” (App. 12a) and Francis

Bacon's 1953 “Study After Velasquez’s Portrait of Pope Inno-

cent X” (App. 13a), among countless other visual art works

and works of literature, opera and theater.

5 Pamela Askew, Caravaggio's Death of the Virgin 50-68 (1990);

Helen Gardner, Gardner's Art Through the Ages 728 (1991).

° Clapp, supra note 3, at 224-26.

we Op-Ed, Four Frames on America, N.Y. Times, July 6, 1991, at

A21; N.Y. Times, July 20, 1991, at A1l8 (Letters).

| See, e.g., 135 Cong. Rec. § 5595 (daily ed. May 18, 1989)

(“Senator [D’ Amato] is absolutely correct in his indignation and in his

description of the blasphemy of the so-called artwork. I do not know

Mr. Andres Serrano, and I hope never to meet him. Because he is not an

artist, he is a jerk.”); id. at S 12968 (Oct. 7, 1989) (criticizing the con-

ference bill on the 1990 appropriations bill for its failure “to get tough

on the NEA for funding trash like Mr. [Robert] Mapplethorpe’s and

Mr. Serrano’s”). One of the immediate results of Senator Helms’s attack

was the legislation at issue here.

Whether a particular work of art will offend Americans’

beliefs or values often depends on the perspective of the

viewer. This is well illustrated by David Hammons’s “How Ya

Like Me Now” (1988) (App. 14a), which depicts a white,

blue-eyed Jesse Jackson. The work Outraged many young

African-Americans, who saw it as insulting to Mr. Jackson,

unaware that the African-American artist was using color to

comment on how race influences political (and other) judg-

ments.'* Similarly, viewers offended by Robert Colescott’s

highly stereotypical images of African-Americans in “George

Washington Carver Crossing the Delaware: Page From Amer-

ican History” (1975) (App. 15a) might react differently once

they realize that Colescott, an African-American, seeks to

attack such stereotypes with his figures."?

Differing political viewpoints can also influence the per-

ception of whether a particular artistic work collides with “the

beliefs and values of the American public.” In the age of

McCarthyism in the United States, artists, especially those

of foreign origin, were often identified with communism. In

1949, Congressman George A. Dondero delivered the follow-

ing lines in a speech before the House of Representatives:

- . . artis considered a weapon of communism, and the

Communist doctrinaire names the artist as a soldier of

the revolution. It is a weapon in the hands of a soldier in

the revolution against our form of government, and

against any government or system other than commu-

nism. .

ue Roxanne Roberts, Jackson: Not Insulted by Painting; Says

Destruction of Portrait Reflects Hidden Anger, The Washington Post,

Dec. 4, 1989, at BI; Hammering the Body Politic; Blacks Wreck a Por-

trait of a Blond, White Jesse Jackson, Time. Dec. 18, 1989, at 79.

‘3 See John Russell, Turbulent Restatements from Robert Colescott,

N.Y. Times, Mar. 3, 1989, at C32: Paul Richard, Robert Colescott's

Perspectives on Black and White. The Washington Post. January 20,

1988, at Cl.

What are these isms that are the very foundation of so-

called modern art?. . . I call the roll of infamy without

claim that my list is all-inclusive: dadaism, futurism,

constructionism, suprematism, cubism, expressionism,

surrealism, and abstractionism. All of these isms are of

foreign origin, and truly should have no place in Amer-

ican art. . . . Picasso, who is also a dadaist, an abstrac-

tionist, or a surrealist, as unstable fancy dictates, is the

hero of all the crackpots in so-called modern art."

Most of the artists that Senator Dondero believed were con-

spiring to overthrow democracy in America (such as Marcel

Duchamp and Fernand Léger), today are accepted, almost uni-

versally, as important contributors in the development of Amer-

ican art.

A more extreme example of artistic expression colliding

with the reigning political regime was the Third Reich's pro-

gram to brand as “degenerate” much of the modern art that

flourished in Germany after World War I in order to clarify

for the German public “exactly what type of modern art was

unacceptable to the Reich, and thus ‘un-German.’ "5 Con-

fiscating art from museums all over Germany, the Nazis

installed over 600 works in an exhibition of so-called “Degen-

erate Art.” To discredit the works further for the popular audi-

ence, many of the works were affixed with a red sticker

stating “Paid for by the taxes of the German working peo-

ple.”'® The condemnation of contemporary art and the threat

of eliminating public funding for the arts is still part of the

agenda of some right-wing European politicians including

Jean-Marie Le Pen in France and Jorg Haiden in Austria."”

'$ 95 Cong. Rec. H 11584 (Aug. 16, 1949).

'S Stephanie Baron (ed.), “Degenerate Art”: The Fate of the

Avant-Garde in Nazi Germany 9-23, 45-46, 89 (1991).

” See David Zane Mairowitz, Fascism a la Mode: in France, the

Far Right Presses for National Purity, Harper's Magazine, Oct., 1997,

These examples demonstrate that the public’s opinions as to

whether any particular art work is “decent” will be as diverse

as their beliefs and values in general. As should be apparent,

there is no way to determine the content of “general standards

of decency” and the “respect for the diverse beliefs and

values of the American public.” Because Section 954(d)(1)

implicates protected speech under the First Amendment, those

standards need to be defined with specificity. They are not.

The statute, therefore, is unconstitutionally vague.

C. The “Decency” And “Respect” Provisions Cause The

Harm That The Vagueness Doctrine Attempts To

Avoid

The harm of the unconstitutionally vague “decency” and

“respect” provisions is that authority to administer this vague

Statute is placed, with no form of review, in the panelists,

Council, and ultimately, in one person, NEA’s Chairperson,

with knowledge that members of Congress and others with

particular political viewpoints will be looking over their

shoulders. This sort of unguided discretion fosters precisely

the kind of invidious discrimination among viewpoints that is

intended to be avoided by the Due Process Clause’s require-

ment that a statute be reasonably clear. As Justice Clark

pointed out, concurring in Kingsley Pictures Corp. v. Regents,

360 U.S. 684, 701 (1959), with this sort of statutory guideline

[{t}he only limits on the censor’s discretion is his under-

standing of what is included in the term “desirable,

acceptable or proper.” This is nothing less than a roving

commission in which individual impressions become the

yardstick of action, and result in regulation in accor-

dance with the beliefs of the individual censor rather

than regulation by law.

at 59; Sharon Waxman, Artists Put on Brakes at France's Right Turn;

Some Urge Boycott in National Front Towns, The Washington Post, June

22, 1995, at Cl; lan Traynor, Austrian Far Right Turns the Arts into The-

atre of War, The Guardian (London), Dec. 14, 1995, at 15.

Accord, City of Cincinnati v. Discovery Network, Inc., 507 U.S.

410, 423-24 n.19 (1993).

Moreover, the Chairperson is not required to give reason

for disapproving a grant, so that there is no record that can be

reviewed if the Chairperson abuses his or her authority and

rejects an application because of its political or ideological

viewpoint. Thus, the sole, unsupervised and unreviewable

authority to decide whether a grant application comports with

“general standards of decency” and is respectful of the Amer-

ican “beliefs and values” amounts to bestowing on the Chair-

person a power of censorship, a power that this Court has said

“should not be easily inferred.” Hannegan v. Esquire, Inc.,

327 U.S. 146, 151 (1946)."*

Unjustified rejection of artistic expression because of its

viewpoint is just one side of the harm flowing from this uncon-

stitutionally vague statute. The other is the self-censoring effect

that such a limitless standard will have on the artists and arts

organizations who seek NEA grants to support their work and

exhibitions. Artists producing works worthy of funding will be

discouraged from applying for an NEA grant, fearing that any

subject too unconventional will not overcome the hurdle of

Section 954(d)(1)’s “decency” and “respect” provisions. A sec-

ond level of self-censorship comes from arts institutions that

decline to display works out of fear of being rejected for future

funding under some interpretation of the “decency” and

“respect” provisions. Section 954(d)(1) thus has the doubly

undesirable effect of forcing artists and arts organizations to

“steer far wider of the unlawful zone. . . than if the bound-

aries of the forbidden areas were clearly marked” (Grayned v.

City of Rockford, 408 U.S. 104, 109 (1972) (internal quotes

omitted)), and stifling the creation of the best and most inno-

'$ In Hannegan, this Court held that to uphold the Postmaster Gen-

eral’s revocation of Esquire Magazine's second-class postal permit on the

ground that, although not obscene, material in the magazine was “inde- _

cent, vulgar and risque” “would grant the Postmaster General a power of

censorship [which is} abhorrent to our traditions. . . .” 327 U.S. at 149,

151.

vative work that artists are capable of creating—just what the

NEA was originally established to promote.

ARTISTIC “EXCELLENCE” AND “MERIT”

ARE NOT UNCONSTITUTIONALLY VAGUE

In support of its contention that Section 954(d)(1) is not

vague, the NEA has adopted an argument advanced by Judge

Kleinfeld in his dissent from the court of appeals panel deci-

sion (Pet. App. 38a-40a) and repeated by Judge O’Scanniain in

his dissent from the denial of the petition for rehearing en banc

(Pet. App. 95a). The NEA claims that if “general standards of

decency” and “respect for the diverse beliefs and values of the

American public” are impermissibly vague, then so too are

“artistic excellence” and “artistic merit.” Pet. Br. 48.

The court of appeals rejected Judge Kleinfeld’s argument as

irrelevant because the meaning of those terms had not been

challenged by respondents. Pet. App. 18a n.18. However, the

court of appeals noted that there were obvious differences

between the “decency” and “respect” provisions and “artistic

excellence” and “artistic merit,” including the fact that the

NEA decision-makers are knowledgeable about the arts, but

have no particular expertise in determining what is “decent”

or whether the American public shares any particular beliefs

or values on a given subject. /d.

The NEA’s argument that “artistic excellence” and “artis-

tic merit” are unconstitutionally vague suggests that it is

impossible to answer the questions “what is az*?” and “how

do we tell the difference between good art and bad art?” The

amici curiae believe that, although there may be no absolutes

when it comes to art, there are, in fact, standards and tools

which can be used to answer these questions.'®

'? Some philosophers of art and aesthetics, for example, have rec-

ognized that visual art is the marriage of (1) content and (2) a mode of

In his dissenting opinion, Judge Kleinfeld tries to suggest

that the process of judging art is wholly elusive. Pet. App.

39a. He relies for this startling proposition on a passage in the

1962 first edition of “History of Art,” the well known text-

book by H.W. Janson.*® A closer examination, however,

reveals that Janson does not support Judge Kleinfeld’s asser-

tion. Aithough Janson admits that absolute definitions cannot

be reached, the Introduction to his first edition discusses at

least two factors which are necessary to distinguish art from

mere craft: originality and creativity.*' By the 1997 fifth edi-

tion of the Janson text, the Introduction has been expanded to

include discussions of creativity, imagination, originality,

technique, meaning and style, self-expression, and taste.”

That Introduction continues by listing certain visual elements

that should be analyzed when looking at art: line, color, light,

composition, form and space. Contrary to Judge Kleinfeld’s

assertion that there are no standards for evaluating art, the lat-

est edition of Janson takes a far less absolutist view: “If

definitive conclusions are impossible, there is still a good

deal that can be said.”* Indeed, Janson’s “History of Art” is

visual presentation. See, e.g., G.W.F. Hegel, Introductory Lectures on

Aesthetics 13 (Michael Inwood ed. & Bernard Bosanquet trans., Penguin

Books 1993) (“What is now aroused in us by works of art is over and

above our immediate enjoyment, and together with it, our judgment; inas-

much as we subject the content and the means of representation of the

work of art and the suitability and the unsuitability of the two to our

intellectual consideration.”); Arthur C. Danto, After the End of Art: Con-

temporary Art and the Pale of History 81-98 (1997) (applying Hegel's

paradigm to contemporary art criticism).

20 “Pet. App. 39a. The exact passage is: “But if we must give up any

hope of a trustworthy rating scale for artistic quality, can we not at least

expect to find a reliable, objective way to tell art from non-art? Unfor-

tunately, even this rather more modest goal proves so difficult as to be

almost beyond our powers.”

2! «HW. Janson, History of Art 9-17 (1st ed. 1962).

a2 Janson, supra note 6, at 16-25.

23° Jd. at 16.

a 1000-page tome of judgments about which objects are the

visual artistic masterpieces of the Western World.

The factors listed in Janson’s most recent Introduction

demonstrate that there are, in fact, standards which may be

used to determine artistic excellence and ment. Furthermore,

and central to this case, whatever artistic “excellence” and

“merit” mean, their definition cannot and do not include “gen-

eral standards of decency” and the “respect for the diverse

beliefs and values of the American public.”

A. There Are Established Standards Of “Artistic

Excellence” And “Artistic Merit”

Since the advent of art history as a discipline, there have

been established standards for determining artistic excellence.

However, the answers to the questions “what is art?” and

“how can we tell the difference between good art and bad

art?” have depended on where and when they are asked.

In ancient Greece and Rome, writers mentioned objects

that today are classified as art, such as paintings and sculp-

tures, but they were not discussed as works of art. Instead,

these mentions appeared in texts on other subjects and

described only how the objects were made, their size, their

cost, the artists who made them, how lifelike they were,

whether they were the first of their kind, and the extent

to which they embodied either natural or ideal beauty.**

Cicero (106-44 B.C.), Pliny (23-79 A.D.) and Quintillian

(30-100 A.D.), for example, described the development of

sculpture beginning from the Sth century B.C., moving from

crude early representations to a style of perfect naturalism

(the way things really look) in the 4th century B.C. (evi-

denced by the sculptural work of Phidias on the Parthenon),

to idealism (the way things ought to look in a perfect

“ Eric Fernie, “A History of Methods,” Art History and Its

Methods: A Critical Anthology 10 (1995). See Pliny the Elder, Natural

History, excerpts reprinted in Janson, supra note 6, at 213-14.

world).*> These ways of writing about art objects continued,

for the most part without change, from antiquity, throughout

the first millennium and up to the Middle Ages.”®

The study of art became a subject in its own right in the 16th

century with the publication of Giorgio Vasari’s Lives of Artists

in 1550 in Florence.*’ The Lives is a series of biographies

which treat the Renaissance artist as genius, set apart from

ordinary man by the grace of God. The Lives featured artists

such as Leonardo da Vinci, Michelangelo and Raphael; and

their achievements in painting, sculpture and architecture were

compared to the classics of ancient Greece and Rome. Unlike

prior historians, Vasari did not merely describe art works;

instead, he made judgments about the quality of art works for

the purposes of attribution and to decide which artists belonged

among the most accomplished of the Renaissance.** Vasari

assessed artistic quality on the degree of naturalism or illusion

attained and considered ideal beauty to be the selection and

combination of the most beautiful parts of nature. He encour-

aged connoissuership and the close study and analysis of works

of art, leading to the classification of styles of individual artists

and schools, and tracing the influences among them.”

Following the peak of the Renaissance style (generally con-

sidered from 1500 to 1525), the history of Western art is best

characterized by a series of stylistic innovations and reac-

tionary movements, labeled by historians with such terms as

the Baroque, Rococo, Neo-Classical and Romantic periods.

Not surprisingly, these movements in painting and sculpture

25 “Fernie, supra note 24, at 10.

26 Id.

a 1 Giorgio Vasari, Lives of the Artists (George Bull trans.,

Penguin Books 1965). See Fernie, supra note 24, at 22-28.

28 Vasari, supra note 27, at 83-84 (“I have endeavored not only to

record what the artists have done but also to distinguish between the

good, the better, and the best. . .”).

29 «See Fernie, supra note 24, at 22-28; Janson, supra note 6, at 452.

had companion periods in music and literature. At first, each

of these movements presented, in some way, a challenge to

the then-established style of art. They subsequently became

popular and, therefore, established in their own right, and,

eventually, declined as they were challenged by a new style or

the revival of an old style.

The Renaissance “classical” style of Leonardo da Vinci,

Michelangelo and Raphael can best be characterized by clar-

ity, balance and restraint. By the mid to late 16th century,

many artists began moving away from this classical style and

developed a style that had more of a mannered elegance.”

This break led to the rise and dominance in the 17th century

of the Baroque artists (such as Caravaggio and Bernini in

Italy, and Rubens, Rembrandt and Vermeer in Northern

Europe), whose painting and sculpture were generally char-

acterized by great drama or elaborate ornamentation.

Despite the work of these Italian and Northern artists, it

was France that became the most culturally (and militarily)

powerful European country in the 17th century (a reign that,

in the visual arts, would continue until the middle of the 20th

century). In response to the dramatic works of the Baroque

painters, many French artists began once again to champion

the classical style. The Frenchman Nicholas Poussin (1593-

1665) was the protagonist of the classical style in the 17th

century. He wrote that the painter must:

make every effort to avoid getting lost in minute detail,

SO as not to detract from the dignity of the story. He

should describe the magnificent and great details with

a bold brush and disregard anything that is vulgar and

of little substance. Thus the painter should not only

be skilled in formulating his subject matter, but

wise enough to know it well and to choose something

os The “Mannerist” style is represented by the Italian painters Pon-

tormo (1494-1556), Parmigianino (1503-1540), and Bronzino (1503-

1572). See generally Janson, supra note 6, at 482-496.

that lends itself naturally to embellishment and per-

fection.*!

Following Poussin’s death, the French government, under

Louis XIV (crowned in 1661), adopted classicism as the offi-

cially approved style in order to glorify the monarchy.** Louis

XIV also reconstituted the Royal Academy of Painting and

Sculpture in Paris to inculcate this style. The Academy even

devised a method for grading artists of the past and present

in such categories as drawing, expression and proportion.

(The ancient Greeks and Romans received the highest grades,

followed by Raphael and "oussin. The Venetians, such as

Veronese, and the Dutch received the lowest marks.)**

In England, Sir Joshua Reynolds, the president of the Royal

Academy in London, also professed the Academy style. In his

famous Discourses, Reynolds developed a hierarchy for artis-

tic merit in painting based on subject matter and style that

was similar to the rules of the French Academy.™ Paintings of

subjects from Greek and Roman mythology and history and

the Bible were considered to be more dignified than paintings

of landscapes, which, in turn, were considered more advanced

and noble than portraits and still life paintings.*°

Following Louis XIV’s death in 1715, the French nobility

were no jonger tethered to the court at Versailles, and the

monarchy loosened its grip on the French Academy. In this

freer society, artistic taste swung in the other direction toward

the highly fashionable style of the Rococo painters such as

Antoine Watteau, Francois Boucher and Jean-Honoré Frago-

a Nicholas Poussin, from an undated manuscript, reprinted in Jan-

son, supra note 6, at 641.

a See Janson, supra note 6, at 600-01.

33 Jd. at 601.

” Sir Joshua Reynolds, Discourses on Art, ed. Robert R. Wark, 57-

73 (1975). ‘es

3S Id. Given Reynolds's theories, it is surprising that he was, in

fact, primarily a painter of portraits.

nard. Instead of choosing noble and dignified subjects from

Greek and Roman mythology or the Bible, these painters

showed scenes of elegant society, generally in parklike set-

tings, and comedies.*®

The Rococo period lasted only a short time, however, as the

politics of the French Revolution and Empire greatly influ-

enced the favored artists of the late 18th and early 19th cen-

tury. A revival of classical antiquity (the “Neo-Classical”

period) dominated the late 18th century (e.g., the painting of

Jacques-Louis David, a hero of the French Revolution), and

was linked to the Enlightenment thinkers in France, England

and Germany. Then, around 1800, the Romantic artists (as

well as writers and musicians) began to flourish.*’ These

artists were more linked to each other in thought (generally a

“return to Nature”) than in style, which was really a revival of

many different styles (e.g. the “Neo-Rococo” of Francisco

Goya in Spain, the “Neo-Baroque” of Théodore Géricault and

Eugéne Delacroix in France, the “Neo-Classicism” of J.A.D.

Ingres also in France, and the landscape painters of France

and England including Camille Corot, Jean-Francois-Millet,

John Constable and J.M.W. Turner).

Toward the end of the 19th century, at the dawn of the

Industrial Age, a revolutionary development in painting took

place in France. In 1863 Edouard Manet (1832-1883) shocked

the Paris art world with his “Déjeuner sur I’herbe” (App. 4a).

This painting particularly offended contemporary morality by

juxtaposing a nude woman with two men in contemporary

dress in an outdoor setting, without a title that invoked any

“higher” meaning.** More importantly, however, the painting

6 See generally Janson, supra note 6, at 610-629.

dd See generally, Janson, supra note 6, at 672-706; Robert Rosen-

blum and H.W. Janson, /9th Century Art 114-218 (1984).

38“ See Janson, supra note 6, at 720; see also TJ. Clark, The Paint-

ing of Modern Life: Paris in the Art of Manet and His Followers 94-95

(1984).

is among the first to use pictorial elements purely for aes-

thetic effect, thereby demonstrating that painting does not

have to be a window to the world. Manet took this concept

even further by painting his later pictures with very little

modeling, depth or shadows, thus rejecting the notion that a

painting must transform a flat surface into a pictorial space.”

Manet’s style of painting was adopted and advanced by

Claude Monet and the Impressionist painters, including

Camille Pissarro, Auguste Renoir and Edgar Degas.*” When

these artists were refused permission to exhibit at the Salon

of Paris, they were forced to organize an exhibition of their

own works in the spring of 1874.*' Their paintings depicted

outdoor, “slice-of-life” scenes using innovative networks of

color and seemingly spontaneous brush strokes. Painters such

as Paul Cézanne carried Impressionism even further by paint-

ing still-life subjects (bowls of apples, for instance) using

brush strokes that resulted in highly textured canvasses and

perspectives that could not exist in the real world.*

Just as there were standards for judging art in the 16th

through 19th centuries, there are also standards for judging

20th century art. However, judging artistic excellence in the

20th century is more complex than in the past because of the

tremendous variety of artistic styles and movements.** Not

only have new and previously unimagined styles of painting

and sculpture emerged in the 20th century, entirely new forms

of art have been developed. This tradition was begun around

1913 when Marcel Duchamp began to display ordinary

objects such as bicycle wheels, shovels and, in one case, a

49 Rosenblum and Janson, supra note 37, at 278-295.

40 See generally id. at 331-53.

41 Id. at 331-54.

< See generally id. at 384-93.

= As various styles and movements have developed, so too have

the number of “isms” that historians use to label them. Examples include:

Cubism (e.g., Picasso and Braque), Futurism (e.g., Umberto Boccioni),

urinal, as “ready made” sculptures.“* Duchamp'’s intent in pre-

senting such objects, without altering them at all, was to give

them different meaning by placing them in a new context, an

art gallery, in order to challenge the idea that aesthetics were

necessary for art and to expand the notion of the artist as cre-

ator. Duchamp’s views were carried forward in the 1960s by

the Pop Artists (e.g. Claes Oldenburg, Roy Lichtenstein and

Andy Warhol) who displayed ordinary objects as art works to

expose art as a commodity and to comment on the new com-

mercial nature of the art world.** Since Duchamp’s time,

unconventional objects such as air, light, sound, words, live

persons, animals and food have all been used as components

of art works. In addition, photography, video, installations,

performances (“happenings”), environmental constructions

(“earth art”), assemblages, and mere ideas have become legit-

imate art forms.

These are fascinating, exciting and challenging times for

artists, art historians and critics. Artists are choosing new and

controversial subjects for their art as well as presenting new

forms and technologies to embody those subjects. It is a time

when the audience may have just as much responsibility for

the understanding of an art work as the artist has in convey-

ing its meaning: a time when sensory experience, traditionally

thought to be paramount in the appreciation of the visual arts,

may be subordinate to thought; a time when art does not even

require a tangible object.*

Surrealism (e¢.g., René Magritte, Joan Miré, and Salvador Dali), Dadaism |

(e.g., Marcel Duchamp), Suprematism (e.g., Kazimir Malevich), Expres-

sionism (e.g., Franz Marc, Max Ernst, and Egon Schiele), Abstract

Expressionism (e.g., Jackson Pollock and Willem de Kooning) and

Minimalism (e.g., Sol LeWitt, Donald Judd and Ellsworth Kelly).

44 “See H.H. Arnason, History of Modern Art 227-230 (3d. ed.

1986).

aaa See generally, id. at 452-470; Janson, supra note 6, at 831-834;

Michael Archer, Art Since 1960 9-25 (1997).

= Because art created in the last twenty-five years has gone so far

beyond traditional notions of painting and sculpture, some art critics have

ee? See

Despite the changed nature of art in the 20th century, there

remain standards for determining artistic excellence. Cre-

ativity, imagination, originality, technique, meaning, style,

and self-expression are all still relevant. However, it requires

skilled, knowledgeable and fair evaluators to apply these

standards.

B. “Artistic Excellence” And “Artistic Merit” Must Be

Evaluated Within The Particular Context Of The

NEA Program

For the purposes of the void-for-vagueness doctrine of the

Fifth Amendment, statutory language must be interpreted in

the “particular context” within which the legislation was

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

(quoting American Communications Assn. v. Douds, 339 U.S.

382, 412 (1950)). The “particular context” within which

“artistic excellence” and “artistic merit,” as used in Section

954(d)(1), must be evaluated for vagueness purposes is the

NEA grant program. It is the NEA decision-makers, after all,

who must apply those standards. Because these decision-

makers are knowledgeable about the arts (indeed, many are

experts in their fields), “artistic excellence” and “artistic

merit” are concepts with which they are extremely familiar.

In order to arrive at a meaningful evaluation of art, espe-

cially 20th century art, the evaluator must have knowledge

about the objects at which he or she is looking. The more

knowledge, the better. Important information to the evaluator

neay include the identity of the artist, his or her background,

knowledge of prior works done by that artist, and the locale

in which the work was created. In addition, he or she must be

able to place the object within its art historical context. Is the

work influenced by a prior artist? Are there literary or musi-

argued that the history of art ended in the 1960s and that art created since

that time is “beyond the pale of history.” See Arthur C. Danto, After the

End of Art: Contemporary Art and the Pale of History (1997); Hans Belt-

ing, The End of the History of Art (Christopher S. Wood trans. 1987).

cal influences? Is the work making a statement about the his-

tory of art, as Duchamp’s works were? Finally, and perhaps

most importantly, the evaluator must be able to learn about

the art work by closely looking at it. The ability to learn

about an object by looking can come only with experience.*’

If the judge is a person who has examined hundreds or thou-

sands of the saza« type of object, the evaluation becomes

much more advene_d and reliable. For example, an expert in

ancient Greek painted ceramic pots could probably, without

much controversy, examine two such pots and explain why

one has more artistic merit than the other. This same is true.

of course, in judging literature, music and performing arts.

Evaluating the art created by one’s contemporaries is

usually more difficult than evaluating art of the past. The

problem is lack of perspective.** As with the writing of any

history, a certain period of time needs to pass before any par-

ticular event can properly be put into context. Desite these

#7 The art critic Clement Greenberg wrote in 1961: “Experience

itself—and experience is the only court of appeal in art—has shown that

there is both bad and good in abstract art. And it has also been revealed

that the good in one kind of art is always, at bottom, more like the good

in all other kinds of art than it is like the bad in its own kind.” Clement

Greenberg, “The Identity of Art,” 4 The Collected Essays and Criticism

118 Viohn O'Brian ed. 1993).

“8 For example, as popular as their style is today and as innocuous

as their works now seem, the Impressionist painters were at first rejected

by critics. In fact, their first exhibition in 1874 was received with outrage

and condemnation. The critic Louis Leroy mockingly commented that

viewers might have thought their eyeglasses were dirty by looking at all

of the specks in one Pissarro painting. Rosenblum and Janson. supra note

37, at 334. In 1875, a public scandal arose after an exhibition in London

of paintings by J.A.M. Whistler, including the painting “Nocturne in

Black and Gold: The Falling Rocket” (App. 16a). The critic John Ruskin

accused Whistler of asking “two hundred guineas for flinging a pot of

paint in the public's face.” Jd. at 363. Forced to defend his reputation and

his belief in the artist's freedom to create beauty by his own standards,

Whistler sued Ruskin for libel and won after a trial in which many British

artists testified about whether the painting was a legitimate work of art.

Id.

complexities, there are experts in the various arts who are

equipped with the knowledge, skill and experience to make

valid evaluations of art works. Congress recognized that it

would require the talent of these experts to make the deter-

minations necessary to award NEA funds. The Act requires

that funding applications be reviewed by advisory panels

composed of artists and “lay individuals who are know]-

edgeable about the arts.” 20 U.S.C. § 959(c)(2). Recommen-

dations of the advisory panels are reviewed by the National

Council of the Arts, which is composed of people selected

“from among the private citizens of the United States who (A)

are widely recognized for their broad knowledge of, or exper-

tise in, or for their profound interest in, the arts and (B) have

established records of distinguished service, or achieved emi-

nence, in the arts.” 20 U.S.C. § 955(b). In practice, the NEA

advisory panels and the National Council are comprised of

just such experts, skilled at discerning the best works among

those submitted for NEA funding.

Thus, within the “particular context” (Grayned, 408 U.S. at

112) of government funding of arts programs, “artistic excel-

lence” and “artistic merit” are not unconstitutionally vague.

Although lay people with only passing knowledge of the arts

cannot make an informed decision regarding an NEA grant

award, these are not the people Congress selected to be the

decision-makers for NEA grants. Instead, the NEA peer pan-

elists and the NEA Council members, people with a broad

understanding of the history of their particular artistic dis-

cipline and knowledgeable in the recent developments in the

art or literary world, make the judgments regarding the appli-

cants for NEA funding.* They are not well-versed in “stan-

dards of decency” and “the diverse beliefs and values of the

American public,” but they are uniquely qualified to evaluate

artistic excellence.

*” Despite the addition of more lay people to the NEA advisory

panels and the addition of members of Congress to the National Council

of the Arts, the panels are still made up primarily of experts in the arts.

Cc. “Artistic Excellence” And “Artistic Merit” Do Not

Include “Standards Of Decency” And “Respect

For The Diverse Beliefs And Values Of The American

Public”

Throughout history, artists have traditionally experimented

with what is new and unconventional, and artistic work often

compels the viewer to look at the world in new, often trou-

bling, and provocative ways. Given that tradition, a standard

for judging artistic merit that focuses upon “general standards

of decency”—and implicitly the idea of conformity—is fun-

damentally antithetical to the making of art. This is especially

true in the 20th century when almost every major art move-

ment is a rejection of the perceived established order in the

art world or society.

Even if “general standards of decency” and the “beliefs and

values of the American public” could be defined with some

degree of accuracy, imposing those standards on NEA’s selec-

tion of works showing artistic excellence and merit would

have a devastating effect on the creation of art. Such stan-

dards would oblige artists to compromise their creativity and

originality in order to conform to the viewpoint of the major-

ity. This result was clearly not intended by Congress when it

created the NEA in 1965. The Senate Report on the legisla-

tion creating the NEA stated:

It is the intent of the committee that in the administration

of this act there be given the fullest attention to freedom

of artistic and humanistic expression. . . . Countless

times in history artists and humanists who were vilified

by their contemporaries because of their innovations in

style or mode of expression have become prophets to a

later age.

Therefore, the committee affirms that the intent of this

act should be the encouragement of free inquiry and

expression. . . . [CJonforming for its own sake is not

to be encouraged, and. . . no undue preference should

be given to any particular style or thought of expres-

sion.*°

The NEA suggests that “artistic excellence” and “artistic

merit” refer only to “technical proficiency,” and that the

“decency” provision serves to expand those standards. Pet.

Br. 42-43. This equation of artistic excellence with technical

skill grossly simplifies the definition of artistic merit and

ignores entirely the roles of creativity, imagination, origi-

nality and meaning in art. For it is the relationship between

the mode of representation (the “technical proficiency”) and

the meaning of a work that raises an object from mere craft to

the level of art.*' By imposing standards that are impossible

to define and reducing the universe of possibilities, the

“decency” and “respect” provisions necessarily infringe on

artists’ ability to choose the most effective mode of repre-

sentation for their art and to give their art work meaning. Far

from expanding standards of “artistic excellence” and “artis-

tic merit,” the “decency” and “respect” provisions detract

from them.

Imagine the results if Americans were polled on their “stan-

dards of decency” and their “beliefs and values.”* Even if a

50S. Rep. No. 89-300, at 3-4 (1965).

5! See texts cited at supra note 19.

52‘ The results of such a poll might resemble the results of the poll

conducted by the artists Vitaly Komar and Alexander Melamid to create

“America’s Most Wanted Painting” (App. 17a). See Painting By Numbers:

Komar and Melamid’s Scientific Guide to Art, ed. Joann Wypijewski

(1997). Komar and Melamid sought to learn through a scientific study

what the American people wanted if they could construct a painting. They

polled 1001 persons, asking them what kind of paintings they liked and

what features, colors, textures, etc. they wanted to see in painting. The

survey showed that Americans’ favorite color is blue (44%), and that they

wanted “realistic-looking” paintings (60%), dishwasher-sized (67%), wild

animals (51%) in their natural setting (89%), both ordinary and famous

people, visible brush strokes (53%), blended colors (68%), etc. The artists

took the survey results and painted “America’s Most Wanted Painting”,

a landscape with mountains, a lake and blue sky, a posed George Wash-

consensus could be reached (what would the questions be”),

the majoritarian view on various topics, if implemented,

would chill the creation of art. In order to be eligible for an

NEA grant, artists would be compelled to make art works that

satisfied some notion of political correctness, instead of, sim-

ply, the best art they can create. To the extent that such vague

statutory language as the “decency” and “respect” provisions

mean anything, they imply a standard of that which is

accepted, traditional and orthodox. To use such a benchmark

to evaluate art that is intended to provoke viewers and to

challenge traditional standards amounts to setting a standard

that can never be met. As a standard for receiving NEA

grants, this may be a prescription for the death of art funded

by the NEA. While some members of Congress may intend

that result, they should not be permitted to achieve it under

the guise of an unconstitutionally vague statute.

CONCLUSION

For the foregoing reasons, the amici curiae respectfully

submit that the judgment of the court of appeals should be

affirmed.

Respectfully submitted,

Gloria C. Phares

Counsel of Record

James Kronenberg

PATTERSON, BELKNAP, WEBB

& TYLER LLP

1133 Avenue of the Americas

New York, New York 10036

February 6, 1998 (212) 336-2000

ington figure, a hippopotamus, deer frolicking through the lake, and a

group of people walking. It is easy to see that very few Americans would

actually want “America’s Most Wanted Painting.” Although its individual

aspects may be desirable, the sum of its parts is much less desirable. /d.

APPENDIX

TABLE OF CONTENTS

“The Last Judgment,” Michelangelo, 1534-41

“The Kiss,” Auguste Rodin, 1886-98

“Déjeuner sur |’ Herbe” (Luncheon on the Grass),

Edouard Manet, 1863

“David,” Michelangelo, 1501-04

“Hindu Pose,” Henri Matisse, 1923

“Christ in the House of Levi,” Paolo Veronese, 1573. 7a

“Death of the Virgin,” Caravaggio, 1605-06

“Christ in a Gas Mask,” George Grosz, 1928

Photograph, Duane Michals, 1991

“Piss Christ,” Andres Serrano, 1987

“The Holy Virgin Chastising the Infant Jesus Before

Three Witnesses: Andre Breton, Paul Eluard and

the Artist,” Max Ernst, 1926

“Study After Velasquez’s Portrait of Pope Innocent X,”

Francis Bacon, 1953

“How Ya Like Me Now,” David Hammons, 1988

“George Washington Carver Crossing the Delaware:

Page From American History,” Robert Colescott,

“Nocturne in Black and Gold: The Falling Rocket,”

J.A.M. Whistler, 1874

“America’s Most Wanted Painting,” Vitaly Komar and

Alexander Melamid, 1994

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BEST AVAILABLE COPY.

MOTION FILED

FG,

No. 97-371

IN THE

Supreme Court of the Gnited States

OCTOBER TERM. 1997

NATIONAL ENDOWMENT FOR THE ARTS; JANE

ALEXANDER, IN HER OFFICIAL CAPACITY AS

CHAIRPERSON OF THE NATIONAL ENDOWMENT

FOR THE ARTS,

Petitioners.

Vv.

KAREN FINLEY; JOHN FLECK;: HOLLY HUGHES; TIM MILLER;

NATIONAL ASSOCIATION FOR ARTIST’ ORGANIZATIONS,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURL4E

AND BRIEF AMICUS CURIAE OF THE FAMILY

RESEARCH INSTITUTE OF WISCONSIN

IN SUPPORT OF RESPONDENTS

Daniel Kelly

Counsel of Record for Family

Research Institute of Wisconsin

McLario, Helm & Bertling, $.C.

N88 W16783 Main Street

Menomonee Falls, Wisconsin 53051

(414) 251-4210

Case No. 97-37]

IN THE SUPREME COURT

OF THE UNITED STATES OF AMERICA

1997 Term

cree LE eee TE

National Endowment for the Arts; Jane

Alexander, in her official Capacity as

Chairperson of the National Endowment

for the Arts,

Petitioners,

Karen Finley; John Fleck: Holly Hughes;

Tim Miller; National Association of Artists’

Organizations,

Respondents.

i TLE ee ce

MOTION FOR LEAVE TO FILE BRIFF

AMICUS CURIAE

Now comes Family Research Institute of Wisconsin

(FRI) and seeks leave to file this brief as Amicus Curiae. As

grounds therefore, FRI would show that:

1. The Office of the Solicitor General of the United

States has granted permission for FRI to file this brief, which

letter is made a part of this motion;

2. Counsel for Respondents have denied permission

for FRI to file this brief on the ground that FRI’s interests are

not aligned with theirs, which letter is made part of this

motion;

3. FRI’s interests are sufficiently aligned with those

of Respondents that their denial of permission to bring this

brief to the Court’s attention ought not bar its filing.

Respondents seek the broadest flow of speech and

other expressive conduct consistent with the parameters of

the First Amendment. To that end, they challenged part of

the NEA’s enabling legislation as a content-based restriction

on their right to free speech. Both the District Court for the

Central District of California and the Court of Appeals for

the Ninth Circuit agreed, and struck down the offending

provision. Respondents appear before this Court to defend

the broadened access to funding made possible by the courts

below.

The Family Research Institute of Wisconsin also

supports the greatest liberty possible in the free exchange of

ideas consistent with the First Amendment. Specifically,

FRI joins Respondents in proclaiming the importance of the

arts, and the need for them to be free of governmental

interference. Presumably, Respondents would join with FRI

in decrying any attempt to further free speech issues through

coercion. If any arts program is to survive constitutional

review, it must fit within the parameters of the First

Amendment. The FRI simply seeks to ensure that any

governmental involvement does not jeopardize the freedom

and liberty that are essential to the flourishing of the arts in a

democratic society.

Both FRI and Respondents seek to have the Ninth

Circuit’s decision upheld by this Court. The fact that FRI

advances a different rationale for affirmance does not mean

its interests are insufficiently aligned with Respondents to

allow filing of the brief. The FRI respectfully requests leave

to file this brief.

Table of Contents

EES SE A A a Re ili

TEI TA AE TE Oe Vil

a vill

NN ESE eae Ce aN toe l

Il. Taxpayer Funding of the NEA Constitutes

I oo cinirsiseceneinniientinnnistenepeenintes =

PET Re > oe 4

B. The NEA is a Financial Forum .............. 5

C. Correlation Between how a Financial

Forum is Funded and its Permissible

EE 7

D. Historical Foundation for Financial

PE crntentuniniinnphiermenees 11

l Governmental Compulsion in

the Realm of Ideas .................... 11

2. Impermissible Financial

ae eee

Table of Authorities

Cases

Abood v. Detroit Bd. of Ed.,

|, STEER cere ae 7, 11, 12, 13

Bowen v. Kendrick, 487 U.S. 589 (1988) .......cccccceccecsesseoes 1]

Bradfield v. Roberts, 175 U.S. 291 (1899) o.....cccccccccsecseees 11

Buckley v. Valeo, 424 U.S.1 (1976) occcccccccccceceeoeens 8,11, 15

Committee for Public Ed. v. Nyquist,

ce TIL a A a 10

Everson v. Board of Education, 330 U.S. 1 REDS 9

Finley v. National Endowment for the Arts,

are es I icici isteniccsesasenrmiciniasereanenens 7

Finley v. National Endowment for the Arts,

795 F.Supp. 1457 (C.D. Cal. 1992) ooo..ccccccccccececccsesececseeees 6

Flast v. Cohen, 392 U.S. 83 (1968) o.......cccccccccccececereseseovees 10

Keller v. State Bar of California,

| TEE Tes end ae 8,11, 12

Lamb's Chapel v. Center Moriches Union Free

School Dist., 508 U.S. 384 (1993) .........0sesessessssrseeseesserees 10

Lathrop v. Donohue, 367 U.S. 820 (1961) ....cccccccccccseeeeeee 20

Lee v. Weisman, S05 U.S. 577 (1992) .........ccccscssssesseeeeseee 10

Riley v. Nat. Fed. of Blind, 487 U.S. 781 (1988) .............. 15

Roemer v. Board of Public Works of Md.,

GED Gs Fay POS CPD eientttininricntiiccttaciinitnieis antennas 11

Rosenberger v. Rector and Visitors of the Univ. of

ja LS ne 4

Rust v. Sullivan, 500 U.S. 173 (1991) .....ccccccccceeseesees 8,9, 11

School Dist. of Grand Rapids v. Ball,

GI8 Ab. FEA CROSS ccinsiittnitibinnaitiecinivcitsinitinnntiasiiiiamiice 9

ChE, 0 RGA, TIP e Gy 0 Ge wnccittadicrentahissninntitainaianciinti 9

Westside Comm. Bd. of Ed. v. Mergens,

OB. Tae GG ccivscliteiociiliteaatiniiacinbitiiiabinciibiaaiilisiss isa toe. 10

West Virginia Bd. of Ed. v. Barnette,

FIP GO Cee eseiteccisdiiciiditiintiiiinsemandiiainics 12, 13, 19

Widmar v. Vincent, 454 U.S. 263 (1981) .......cccccccccccseeeeees 10

Wooley v. Maynard, 430 U.S. 705 (1977) .........cc0000000000e. 12

Constitutional Provisions

U.S. Comet. Amman 1 .ccccocccscccossscesssccesnesccssonsrsosssssscsesseoooes 12

United States Statutes

20 U.S.C. cnatiae BBE cccoccisecctvcevescsccccesenscsscotporveiconssssneanen 1-3

20 UBC. G0cthen DFE .2..0cccosccrccersoseserscoscscocseres 3, 5, 6, 20, 21

, a YS "Oe ee anno ne eT EED 3,5

State Statutes

Va. Code Ann. sec. 57-1 (1950) .....sccccceccreeseneeseeenensnnes 14, 21

Supreme Court Rules

Supreme Court Rule 37.6 .........-.c-c-sereeseneneeseneenererseereenensees l

Other Authorities

William Blackstone, Commentaries ................::0:+000 16, 17

Irving Brant, James Madison: The Nationalist (1948) ...... 14

Tine Podieralliet MO. 31. ...cxcecscocesssossoseseescsscsscecsscecssensesocsoveers 17

Thee Pedasallict No. 79 ...<0ccscreccorecsvsescosesesssseosesssscosessosseseees 16

Thomas Jefferson, Notes on the State of Virginia

(2nd Amer. @d. 1794) .......csrccscsecsososeressseesessesssosereoeoees 14, 15

Henry Schofield, Essays on Constitutional Law and

Equity (Faculty of Law, Northwestern University,

Oe. GREED cerernicenoninuiitesiibanialaniianteidiiniani iti tithe 13

Bernard Schwartz, The Bill of Rights: A Documentary

ig | EE ACER SOE EE A ne 18

Alexis de Tocqueville, Democracy in America

(Phillips Bradley, ed. 1991) ..............cccccccccssccccssecsceeeecereeees 18

Interest of Amicus Curiae

The Family Research Institute of Wisconsin, Inc., is a

non-partisan, not-for-profit, pro-family, state legislative

research institute. The Institute is dedicated to researching

issues of interest to, and which have an impact on, Wisconsin

families, and then disseminating that information to

institutions and individuals. The Institute’s goal is to

strengthen and educate Wisconsin families.

The freedoms of speech, religion and the press are of

inherent value to Wisconsin’s families and, hence to the

Family Research Institute. Specifically, when government

becomes involved in the choice of ideas to be advanced in

the marketplace of ideas with taxpayer funds derived, at least

in part, from Wisconsin’s families, the Family Research

Institute believes it necessary to respectfully offer its views

regarding the legal and historical principles underlying the

treatment of First Amendment principles as they intersect

with individual liberties.

Vil

Summary of Argument

Congress, in establishing the National Endowment

for the Arts, created a financial forum. Forum analysis as it

applies to a fund of money is an emerging field, requiring

scrutiny of the source of funds going into the forum, and the

objects on which it is spent. Purposes for which Congress

may appropriate funds are limited by the characterization of

the funds comprising the forum. If the contributions are

compelled, Congress may use them only to advance goals

germane to the purpose of the Federal Government. To do

otherwise would violate the First Amendment’s Free Speech

Clause by compelling individuals to advance speech or ideas

with which they may not agree. If the contributions are

voluntary, Congress enjoys a broader latitude in what it may

fund without offending the First Amendment.

I. Introduction’

In 1965, Congress created the National Endowment for

the Arts (hereinafter “NEA”) as part of the National Foundation

on the Arts and the Humanities.’ In so doing, it provided the

raison d'etre of the program, viz., to “transmit the achievement

and values of civilization from the past via the present to the

future, and make widely available the greatest achievements of

art.» The NEA carries out this mandate by appropriating

' Pursuant to Supreme Court Rule 37.6, counsel states that he

has authored this brief in whole, and that the Alliance Defense Fund has

made a monetary contribution to its preparation.

? 20 U.S.C. section 951 et. seq.

> 20 U.S.C. section 951(11). As justification for the program,

Congress made the following findings:

(1) The arts and the humanities belong to all

the people of the United States.

(2) The encouragement and support of

national progress and scholarship in the humanities and

the arts, while primarily a matter for private and local

initiative, are also appropriate matters of concern to

the Federal Government.

(3) An advanced civilization must not limit its

efforts to science and technology alone, but must give

full value and support to the other great branches of

scholarly and cultural activity in order to achieve a

better understanding of the past, a better analysis of the

present, and a better view of the future.

(4) Democracy demands wisdom and vision in

its citizens. It must therefore foster and support a form

of education, and access to the arts and the humanities,

designed to make people of all backgrounds and

wherever located masters of their technology and not

its unthinking se rvants.

(5) It is necessary and appropriate for the

Federal Government to complement, assist, and add to

programs for the advancement of the humanities and

the arts by local, State, regional, and private agencies

and their organizations. In doing so, the Government

must be sensitive to the nature of public sponsorship.

Public funding of the arts and humanities is subject to

the conditions that traditionally govern the use of

public money. Such funding should contribute to

public support and confidence in the use of taxpayer

funds. Public funds provided by the Federal

Government must ultimately serve public purposes the

Congress defines.

(6) The arts and the humanities reflect the

high place accorded by the American people to the

nation's rich cultural heritage and to the fostering of

mutual respect for the diverse beliefs and values of all

persons and groups.

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

humanities require constant dedication and devotion.

While no government can call a great artist or scholar

into existence, it is necessary and appropriate for the

Federal Government to help create and sustain not only

a climate encouraging freedom of thought,

conditions facilitating the release of this creative talent.

(8) The world leadership which has come to

the United States cannot rest solely upon superior

power, wealth, and technology, but must be solidly

founded upon worldwide respect and admiration for

the Nation's high qualities as a leader in the realm of

ideas and of the spirit.

(9) Americans should receive in school,

background and preparation in the arts and humanities

to enable them to recognize and appreciate the

aesthetic dimensions of our lives, the diversity of

excellence that comprises our cultural heritage, and

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

preserve its multicultural artistic heritage as well as

support new ideas, and therefore it is essential to

taxpayer funds and distributing them to, inter alia, individuals

for productions, performances, workshops or other related

activities. The Chairperson of the NEA, in consultation with

the National Arts Council, selects the recipients of this

munificence.*

Amicus is in entire agreement with Congress’

assignment of such great weight and importance to the arts and

humanities, and favors the laudable goals expressed in the

enabling _ legislation. However, good intentions

notwithstanding, the current method of funding this financial

forum and granting disbursements violates the First

Amendment’s guarantee of the freedom of speech. Amicus

respectfully suggests that the Ninth Circuit’s decision be

upheld, but upon the grounds that form the basis for this brief.

provide financial assistance to its artists and the

(11) To fulfill its educational mission, achieve

an orderly continuation of free society, and provide

models of excellence to the American people, the

Federal Government must transmit the achievement

and values of civilization from the past via the present

to the future, and make widely available the greatest

achievements of art.

(12) In order to implement these findings and

purposes, it is desirable to establish a National

Foundation on the Arts and the Humanities.

20 U.S.C. section 951.

* 20 U.S.C. sections 954(c), 960.

> Id.

Il. Taxpayer Funaing of the NEA Constitutes

Compelled Speech

A. Financial Fora

This Court’s opinions have nearly completed a very

neat framework within which to analyze free speech issues

touching on the creation of, and access to, various fora for the

expression of ideas. Forum analysis for free speech cases is not

limited to the traditional question of access to buildings,

sidewalks or parks. As this Court noted in Rosenberger v.

Rector and Visitors of the Univ. of Virginia, it is possible to

create a forum in a metaphysical sense through a poo! of funds,

which would implicate the same array of access questions as in

a traditional forum. The emerging picture of what may be

labeled “financial fora” is that they have two related but distinct

aspects. The first treats the means by which the forum was

fundec, the second addresses how the money is distributed

from the forum to its recipients. Such fora could be viewed as

a ledger of transactions, tracking the source of income and the

purposes for which the income is spent. Rosenberger itself

provided the definitive accounting guidelines for the expense

side of the ledger, holding that potential recipients may not be

excluded on the basis of the viewpoint they advocate. It was

also Rosenberger that identified the unanswered question on

the rules for the income side of the financial forum ledger:

“Finally, . . . I note the possibility that the student fee is

susceptible to a Free Speech Clause challenge by an objecting

student that she should not be compelled to pay for speech with

which she disagrees.” As a result of the NEA’s statutory

® 515 U.S. 819, 830 (1995).

” $15 U.S. at 851 (O'Connor, J. concurring).

framework, this question must be resolved in the case at Bar so

that the free flow of speech and ideas may continue unimpeded.

B. The NEA is a Financial Forum

Congress has created a financial forum through the

appropriations authorized by 20 U.S.C. section 960. The

distribution of funds brought into that forum is controlled by

the terms of 20 U.S.C. section 954(c), which favors:

(1) projects and productions which have

substantial national or international artistic and

cultural significance, giving emphasis to

American creati: .ty and cultural diversity and

to the maintenance and encouragement of

professional excellence,

(2) projects and productions, meeting

professional standards or standards of

authenticity or tradition, irrespective of ongin,

which are of significant merit and which,

without such assistance, would otherwise be

unavailable to our citizens for geographic or

economic reasons;

(3) projects and productions that will

encourage and assist artists and enable them to

achieve wider distribution of their works, to

work in residence at an educational or cultural

institution, or to achieve standards of

professional excellence;

(4) projects and productions which have

substantial artistic and cultural significance and

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

inner city, rural, or tribal community;

(5) projects and productions that will

encourage public knowledge, education,

understanding, and appreciation of the arts;

(6) workshops that will encourage and

develop the appreciation and enjoyment of the

arts by our citizens;

(7) programs for the arts at the local

level;

(8) projects that enhance managerial and

(9) projects, productions, and workshops

of the kinds described in paragraphs (1) through

(8) through film, radio, video, and similar

media, for the purpose of broadening public

access to the arts; and

(10) other relevant projects, including

surveys, research, planning, and publications

relating to the purposes of this subsection.

Additionally, “artistic excellence and artistic merit are the

diverse beliefs and values of the American public . . . .”*

Amicus notes that the District Court concluded that

“government funding of the arts is subject to the constraints of

the First Amendment’’ Respondents are troubled by the

content restriction they see in the decency clause. In truth,

though, this is of a kind with the standards enumerated in

section 954(c) -- each mandates decisions based on the content

and viewpoints of the material the applicants seek to have

* 20 U.S.C. section 954(d)( 1).

* Finley v. National Endowment for the Arts, 795 F Supp. 1457,

1475 (C.D. Cal. 1992).

funded."® The infirmity of the decency clause is not that it, as

opposed to the other standards, impermissibly impinges on the

First Amendment, but rather that such restrictions are

inconsistent with the method by which the financial forum is

funded and the entity creating the forum, thereby contravening

the strictures of the First Amendment.

C. Correlation Between how a Financial Forum is Funded

and its Permissible Disbursements

Financial fora are created either through voluntary

donations or compelled contributions. The method by which

they are funded dictates what may be done with the money so

received. For example, in Abood v. Detroit Bd. of Ed.,’’ this

Court addressed a legislatively mandated “agency shop”

arrangement for local government employees. Whether a

member of the union or not, employees were required to

contribute equal amounts, some part of which was used to

advocate ideas and positions not directly attributable to the core

function of the union. It was concluded that to the extent

using the money for any purpose not directly germane to the

purpose of a labor union. On the other hand, so long as the

contributions were voluntary, the union was free to put that

money to whatever use it desired. Similarly, lawyers in an

integrated bar may successfully preclude the State Bar from

using part of the mandatory dues to advocate legislation and

goals not related to the effective governance of the member

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

688 (1996) (Kleinfeld, J. dissenting) (“artistic merit” and “artistic

excellence” are content-based judgments).

" 431 U.S. 209 (1977).

attorneys.'? If the member lawyer does not object, there is no

In a case with aspects similar to the one at Bar, this

Court addressed the public financing of presidential elections."

Unquestionably, such financing implicates the very heart of the

Free Speech Clause -- political speech and elections. Funds

from general revenue were appropriated to be provided to

political parties, nominating conventions, and candidates

willing to abide by the restrictions of the financing scheme.

The program survived a First Amendment challenge because

this Court found that it furthered, rather than abridged,

“pertinent First Amendment values.”'* However, one of the

key provisions of the program limited grants to the parties,

conventions and candidates to the amount collected through the

“check-off” option on taxpayers’ income tax returns. Thus, the

financial forum created by Subtitle H of the Internal Revenue

Code consisted of funds voluntarily provided. Therefore,

Congress was free to implement a full panoply of regulations

respecting who the recipients would be and the terms upon

which grants would be made without offending the First

Amendment.

In Rust v. Sullivan,"* this Court considered whether the

First Amendment was transgressed when funds were

appropriated from the general revenue to fund a family

planning program. Part of the regulations prohibited any

" Keller v. State Bar of California, 496 U.S. 1 (1990).

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

Id. at 92.

'® $00 U.S. 173 (1991).

recipient of Title X funding from encouraging patients to

consider abortion as an alternative to carrying the child until

birth. It was concluded that Congress, when pursuing an

otherwise legitimate purpose, may condition the grant of funds

on complying with the terms of the grant, even when such

terms included a content-based ban on speech.'* In funding a

program to accomplish a particular goal, it is not

Constitutionally required to fund a program attempting to

achieve the opposite result. Contextually understood, then, the

impact on speech was merely incidental to Congressional

pursuance of a goal germane to its authority.

The federal government’s power to appropriate from the

public fisc has been construed expansively beginning with this

Court’s decision in U.S. v. Butler,’ in which it was concluded

that public funds need not be spent to advance any particular

object enumerated in the Constitution, and is limited only by

the mandate that the purpose for the expenditure fit within the

rubric of “the general welfare.”"* However, the expenditure

must also submit to other provisions of the Constitution. Thus,

this Court has consistently held that direct subsidies to

sectarian activities violates the Establishment Clause of the

First Amendment at its most fundamental level.'*

'* 297 U.S. 1 (1936).

* Id. at 65-66.

'° See Everson v. Board of Education, 330 U.S. 1, 15-16 (1947)

(The Establishment Clause means, at a minimum, that “{njo tax in any

amount, large or small, can be levied to support any religious activities or

institutions, whatever they may be called, or whatever form they may

adopt to teach or practice religion"); School Dist. of Grand Rapids v.

Ball, 473 U.S. 373, 385 (1985) (The “{Establishment] Clause does

This does not mean, though, that government trespasses

on the First Amendment when governmental resources are used

by individuals or organizations of faith. Thus, for example,

outside organizations with a faith-based presentation of issues

may have equal access to school buildings during non-

instructional hours,”’ and school districts must make school

facilities available to faith-based student organizations on the

same terms as other student organizations.*’ As long as the

resources were not created for the express purpose of advancing

religion, there is no Constitutional harm in allowing equal

access to all members of society. Nor is there a violation when

the incidental effect of governmental expenditures assists such

absolutely prohibit government-financed or government-sponsored

indoctrination into the beliefs of a particular religious faith"); Committee

for Public Ed. v. Nyquist, 413 U.S. 756, 780 (1973) ("In the absence of

an effective means of guaranteeing that the state aid derived from public

funds will be used exclusively for secular, neutral, and nonideological

purposes, it is clear from our cases that direct aid in whatever form is

invalid"), id., at 772 (Primary evil against which the Establishment

Clause protects is the sponsorship and active or financial involvement of

the government in things religious.); Lee v. Weisman, 505 U.S. 577, 640

(1992) (Scalia, J., dissenting) ("The coercion that was a hallmark of

historical establishments of religion was coercion of religious orthodoxy

and of financial support by force of law and threat of penalty") (emphasis

in original); Flast v. Cohen, 392 U.S. 83, 103-104 (1968) ("Our history

vividly illustrates that one of the specific evils eared by those who

drafted the Establishment Clause and fought for its adoption was that the

taxing and spending power would be used to favor one religion over

another or to support religion in general").

508 U.S. 384 (1993).

2! Widmar v. Vincent, 454 U.S. 263 (1981); Westside Comm.

Bd. of Ed. v. Mergens, 496 U.S. 226 (1990).

individuals or organizations.” Sotto voce, these cases

recognize that when a forum’s source of funds is compelled

through the government’s taxation authority, it may only put

that money to uses germane to its core functions.

D. Historical Foundation for Financial

Forum Analysis

These cases define the basic contours of the principles

underlying financial forum analysis. When the contributions

to the forum are compelled, the funds may be used only for

purposes germane to the central functions of the creating

entity.” On the contrary, when the funds are voluntarily given,

disbursement can be made for a broader range of purposes

without offending First Amendment principles.” The rationale

for such treatment is lodged deep within our historical

understanding of what is essential to a free society.

1. Governmental Compulsion in the Realm of Ideas

In comprehending that understanding, one must begin

with a recognition that the right to refrain from advocating an

idea is protected with as much fervor as the nght to speak one’s

= See Bowen v. Kendrick, 487 U.S. 589, 617 (1988) (grants to

non-profit organizations with religious affiliations for sex education);

Roemer v. Board of Public Works of Md., 426 U.S. 736, 741 (1976)

(grants to colleges with religious affiliations); Bradfield v. Roberts, 175

U.S. 291, 299-300 (1899) (funding of health care for indigent patients at

a hospital with a religious affiliation).

® Rust, 500 U.S. 173; Abood, 431 U.S. 209; Keller, 496 U.S. 1.

* Buckley, 424 US. 1.

mind.” “The right to speak and the right to refrain from

speaking are complementary components of the broader

concept of ‘individual freedom of mind.””® Further, for

Constitutional purposes, it matters not whether the

transgression on that freedom is accomplished by requiring an

individual to verbally proclaim an idea he disbelieves, or by

appropriating some measure of his property to the service of

such an idea.” This protection, enshrined in the First

Amendment’s provision that “Congress shall make no law . .

. abridging the freedom of speech” has a long and distinguished

pedigree, as this Court’s prior decisions make apparent.

Abood affirmed that “at the heart of the First

Amendment is the notion that an individual should be free to

believe as he will, and that in a free society one’s beliefs should

be shaped by his mind and his conscience rather than coerced

by the State.”* The centrality of this doctrine was emphasized

when this Court reasoned that “[i]f there is any fixed star in our

constitutional constellation, it is that no official, high or petty,

can prescribe what shall be orthodox in politics, nationalism,

religion, or other matters of opinion or force citizens to confess

2° West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624 (1943).

*® Wooley v. Maynard, 430 U.S. 705, 714 (1977).

2” See Abood, 431 U.S. 209 (union may not force members to

financially support non-germane advocacy); Keller, 496 U.S. 1 (State

Bar may not force member attorneys to fund non-germane advocacy);

Wooley, 430 U.S. 705 (motorist may not be compelled to display on his

license plate a message he finds distasteful); Barnette, 319 U.S. 624

(school may not compel student to recite Pledge of Allegiance).

** 431 US. at 234-35.

by word or act their faith therein.”

As a touchstone, Abood reached back to James

Madison’s rhetorical question “‘[w]ho does not see . . . [t]hat

the same authority which can force a citizen to contribute three

pence only of his property for the support of any one

establishment, may force him to conform to any other

establishment in all cases whatsoever?””® Mr. Jefferson,

drawing upon his survey of political history “swor[e] upon the

altar of God eternal hostility to every form of tyranny over the

mind of man.”*' His down payment on that oath was the

Virginia Act for Religious Liberty, cited by Abood, which

provides, in pertinent part:

Whereas, Almighty God hath created the mind

free; that all attempts to influence it by temporal

punishment, or burthens, . . . tend only to beget

habits of hypocrisy and meanness .. . ; that the

impious presumption of fallible and uninspired

men, . . . [have] set[] up their own opinions and

modes of thinking as the only true and

infallible, and as such endeavor{] to impose

them on others . . . ; that to compel a man to

furnish contributions of money for the

propagation of opinions which he disbelieves,

is sinful and tyrannical . . . ; that our civil rights

have no dependence on our religious opinions

any more than our opinions in physics or

*® Barnette, 319 U.S. at 642.

*° 431 U.S. at 234-35 n.31 (quoting 2 The Writings of James

Madison 186 (Hunt ed. 1901)).

*' Tl Henry Schofield, Essays on Constitutional Law and Equity

363 (Faculty of Law, Northwestern University, ed. 1921).

geometry... .”

After its passage, Mr. Madison exulted that the Act’s

provisions “have in this country extinguished forever the

ambitious hope of making laws for the human mind.””? He

may have spoken somewhat prematurely, for the goal was still

a work in progress in 1794, when Mr. Jefferson opined:

The error seems not sufficiently eradicated, that

the operations of the mind, as well as the acts of

the body, are subject to the coercion of the laws.

But our rules can have no authority over such

natural rights only as we have submitted to

them. The nghts of conscience we never

error. This error however at length prevailed,

the earth became a globe, and Descartes

declared it was whirled round its axis by a

vortex. The government in which he lived was

wise enough to see that this was no question of

civil jurisdiction, or we should all have been

involved by authorities in vortices. In fact, the

vortices have been exploded, and the

Newtonian principal of gravitation is now more

firmly established, on the basis of reason, than

it would be were the government to step in, and

to make it an article of necessary faith.*°

submitted, we could not submit.”

Though Messrs. Jefferson and Madison were specifically

addressing liberty of opinion regarding religion, it is clear that

The error is of no lesser magnitude when civil authority,

instead of prescribing by diktat what shall be orthodox, seeks

to advance one opinion over another in the marketplace of

Mr. Jefferson understood this liberty to fully encompass the

realm of ideas:

Was the government to prescribe to us our

medicine and diet, our bodies would be in such

keeping as our souls are now. Thus in France

the emetic was once forbidden as a medicine

and the potatoe [sic] as an article of food.

Government is just as infallible too when it

fixes systems in physics. Galileo was sent to

the inquisition for affirming that the earth was

a sphere: the government had declared it flat as

ideas.

2. Impermissible Financial Compulsion

Civil authorities must:

“presume that speakers, not the government,

know best both what they want to say and how

to say it... . [E]ven with the purest of motives,

[the government] may not substitute its

judgment as to how best to speak for that of

speakers and listeners . . . .”*°

a trencher, and Galileo was obliged to abjure his Buckley recognized that money is an integral part of speech:

“(making a contribution . . . enables like-minded persons to

pool their resources in furtherance of common political

* Va. Code Ann. sec. 57-1 (1950) (originally enacted January

16, 1786) (emphasis added).

* Irving Brant, James Madison: The Nationalist 354 (1948).

* Thomas Jefferson, Notes on the State of Virginia 231 (2nd

Amer. ed. 1794).

** Jefferson, supra at 232-33.

% Riley v. Nat. Fed. of Blind, 487 U.S. 781 (1988).

goals.”*’ If so, the opposite is a necessary corollary: mandating

a contribution forces a person to combine with persons who are

not necessarily like-minded in furtherance of a goal not

necessarily sought by the contributor. This imposition on an

individual’s will has been roundly criticized for centuries.

After denominating a citizen’s basic, fundamental rights

as personal security, personal liberty and private property,

William Blackstone observed that

there is no other known method of compulsion,

or of abridging man’s natural free will, but by

an infringement or diminution of one or other of

these important rights[;] the preservation of

these, inviolate, may justly be said to include

the preservation of our civil immunities in their

largest and most excessive sense.**

Alexander Hamilton, in writing an installment of the Federalist

Papers, was surely cognizant of this fact when he noted that

“(ijn the general course of human nature, a power over a man’s

subsistence amounts to a power over his will.”*

E. Disbursements by the NEA are Inconsistent With the

Method by Which the Forum is Funded

Alexander Hamilton observed that:

In disquisitions of every kind, there are

certain primary truths, or first principles, upon

which all subsequent reasoning must depend.

These contain an internal evidence which,

3? 424 US. at 22.

8 | William Blackstone, Commentaries *129.

® The Federalist No. 79, at 528 (emphasis in original).

antecedent to all reflection or combination,

commands the assent of the mind.”

Such are the preceding principles establishing the right of every

person to be free in forming beliefs and opinions by one’s own

reason and conscience, and the concomitant right to not suffer

a financial burden to advance ideas with which one does not

agree.

The NEA is essentially a clearinghouse for funds

appropriated from the general revenue, derived from taxpayers

upon pain of prosecution should they fail to comply with the

Internal Revenue Code. There is no option similar to the one

addressed in Buckley in which taxpayers would be free to

choose whether or not to fund the Agency’s activities. Thus,

the money entrusted to the NEA chair and Council for

distribution comes entirely from compelled contributions.

Congressional ipse dixit that this compelled speech is, in fact,

good for the general welfare, cannot disguise the harm such a

program wreaks on our First Amendment values. Blackstone

understood that “every wanton and causeless restraint of the

will of the subject, whether practiced by a monarch, a nobility,

or a popular assembly, is a degree of tyranny.” In fact, some

have argued that the very fact the compelled contribution stems

from a governing majority presents a greater, rather than a

lesser, threat to the free flow of opinions and ideas:

It is in the examination of the exercise of

thought in the United States that we clearly

perceive how far the power of the majority

surpasses all the powers with which we are

acquainted in Europe. Thought is an invisible

“ The Federalist No. 31, at 193 (Easton Press 1979).

*' | Blackstone, supra at *126 (emphasis added).

and subtle power that mocks all the efforts of

tyranny. At the present time the most absolute

monarchs in Europe cannot prevent certain

opinions hostile to their authority from

circulating in secret through their dominions

and even in their courts. It is not so in America;

as long as the majority is still undecided,

discussion is carried on; but as soon as its

decision is irrevocably pronounced, everyone is

silent .... The reason for this is perfectly

clear: no monarch is so absolute as to combine

all the powers of society in his own hands and

to conquer all opposition, as a majority is able

to do, which has the right both of making and

executing the laws.

The authority of a king is physical and

controls the actions of men without subduing

their will. But the majority possesses a power

that is physical and moral at the same time,

which acts upon the will as much as upon the

aotens cae mapendess ust only all contest, but

all controversy.”

M. de Tocqueville correctly identifies the awesome power the

majority holds and its capacity to eviscerate all competing

opinions when combined with the power of government.

Indeed, as Mr. Carroll remarked in discussion of the Bill of

Rights in the House of Representatives, “the rights of

conscience are, in their nature, of peculiar delicacy, and will

little bear the gentlest touch of governmental hand... ."™

“ | Alexis de Tocqueville, Democracy in America 263 (Phillips

Bradley, ed. 1991).

* TI Bernard Schwartz, The Bill of Rights: A Documentary

History 1088 (1971) (quoting debates of the House of Representatives on

—

While thought may mock all attempts at tyranny, the

government has at its disposal, through the power to tax and

spend, the means to deliver more than a gentle touch to the

liberties of conscience.

Our Bill of Rights, a distinctly anti-majoritarian

compilation of safeguards, was proposed so that the liberties of

conscience would not suffer government’s touch:

The very purpose of a Bill of Rights was

to withdraw certain subjects from the

vicissitudes of political controversy, to place

them beyond the reach of majorities and

officials and to establish them as legal

principles to be applied by the courts. One's

right to life, liberty, and property, to free

speech, a free press, freedom of worship and

assembly, and other fundamental nghts may not

be submitted to vote; they depend on the

outcome of no elections.“

Although direct governmental promotion of matters of secular

opinion through an exaction of taxes does not normally raise

popular ire to the extent that direct financial subsidies of

religious activities does, it should. In responding to an

argument in which it was asserted that abridgements of the

freedom of speech by a state government may be chimerical,

Justice Black stated, “I can think of few plainer, more direct

abridgments of the freedoms of the First Amendment than to

compel persons to support candidates, parties, ideologies or

August 14, 1789).

“ Barnette, 319 US. at 638.

causes that they are against."** As Mr. Jefferson has eloquently

elucidated, freedom in both matters of faith and of opinion

derive from precisely the same principle -- civil authority ought

to have no power over matters of the mind.

Nor does the fact that the NEA funds a broad array of

activities protected by the First Amendment do anything to

reduce the offensiveness of the expenditures. Should the

proponents of public funding in the Establishment Clause cases

have argued that no harm was done because the appropriations

were going to a profusion of organizations with differing views

on religion, they would surely have found their position

unavailing. The offense is in being compelled, in any degree,

to directly support the advancement of religious speech or

activity. So too, here, the transgression is not lessened because

a wide variety of artistic endeavors receive financial support.

Because the income side of the ledger for this financial forum

is characterized by compulsion, the purposes for which those

funds may be spent must be limited to matters otherwise

germane to the federal government.

Congress, in creating the NEA, was pursuing no other

goal than that expressed in its findings -- to enter the

marketplace of ideas with the sole intention of promoting, with

taxpayer funds, expressive conduct that garners insufficient

support in the marketplace to have the impact Congress desires.

Thus, it specifically declared the necessity to financially

otherwise be unavailable to our citizens and to “enable

* Lathrop v. Donohue, 367 U.S. 820, 873 (1961) (Black, J.

dissenting).

* 20 U.S.C. section 954(c)(2).

[artists] to achieve wider distribution of their works . . . ."*’ The

effect on speech is not incidental, it is the entire purpose of the

program.

Congress has settled on an impermissible mix of

income type and subject of expenditure. The ledger does not

balance. The power to tax and spend is so great that special

care must be taken in ensuring government’s hand does not

even gently touch matters of conscience. In procuring

expressive conduct for its own sake, Congress has re-entered

the realm denied it by the First Amendment. Only in an

Orwellian world-view would it be possible to argue that free

speech is furthered on the back of compelled contributions. At

an irreducible minimum, if Congress wishes to foster the

expansion of the arts and their broader availability, the money

going into the forum must be voluntarily given, a /a the public

financing of presidential campaigns approved in Buckley.

Anything less fails to comport with Jefferson’s admonition that

“to compel a man to furnish contributions of money for the

propagation of opinions which he disbelieves, is sinful and

tyrannical ... ."“*

II. Conclusion

This Court has already held that a labor union, under the

auspices of State law, may not compel the support of its

members for non-germane purposes. Nor may a State Bar,

created pursuant to State law. It would be ironic indeed if the

Federal Government, with limited and enumerated powers, had

wider latitude in compelling speech than would a State

*” 20 U.S.C. section 954(c)\(3).

“ VA Code Ann. sec. 57-1.

government, with plenary authority in its sphere, or one of its

functionaries. The principles of free speech will suffer injury

as long its proponents seek to further its goals via money

extracted from unwilling donors. Amicus urges this Court to

uphold the Ninth Circuit Court of Appeals’ decision, but for the

reasons herein advocated.

Respectfully submitted,

ell

Family Research Institute

Wisconsin

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