# Amicus Curiae Brief — National Endowment for Arts v. Finley > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0117%3A14 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1998 - **Citation:** 524 U.S. 569 ## Text : Supreme Court of the Unt&s States i " 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 ii 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 IV 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 ” See David Zane Mairowitz, Fascism a la Mode: in France, the Far Right Presses for National Purity, Harper's Magazine, Oct., 1997, 14 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. 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. 16 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 17 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. 18 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. 19 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. 20 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. 21 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. 22 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). 23 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. a ode Cc * v ——— +5 \ t = 7 oo es» -w = SIPUXIW eUeNG — p2jues3 3:0) awe) sur UY [ENxXIs03930y UUM “qua Aojduis pure Bursnoy 0) s)y3u fPuswepun; way) IurAuap vores! 33; sy 3 Ae’ uo sy dee JO SUIT NA JUIOIAq JAPY SUPIQSa] = PUP S/ENXISOWIOY JO SUONTT Ww : uonogde UP DAPY O} JOUI2PUM :20UaI9811I09 JO 2>0Y) ayeaud ‘pnyured ysou NIU UO SHICVE JO SUITDWA awIO? aq aAPy UsUIOmM jo SUOTIT'!W sdnoi2 snoi3yas awod jO Epuarde peonyod aun Ajasi> aid $1 s1uy 394 ‘ue UaUTY J2auR0 Aue uo Ayyesow ajyeaud sty asod “Ut 0) WY AL au Sey UP UEUTY ON ‘$U2Z7NI9 MOT2] AU! jo awos AQ JOIAPYSq 3419120) 38 12BUe Au $3921j91 AsO Bai" oyoud stu | ns 5 $ oS DASE Sir cers -—— x he - PETE ek ie’ e ies 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 iv 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 ... 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 l 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 2 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). 4 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.'* "© $00 U.S. at 193-94. '* 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 9 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"). © Lamb's Chapel v. Center Moriches Union Free School Dist., 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). 10 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. 11 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. 12 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). 13 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). 14 ** Jefferson, supra at 232-33. % Riley v. Nat. Fed. of Blind, 487 U.S. 781 (1988). 15 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). 16 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). 17 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 18 — 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. 19 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). 20 [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. 21 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 22 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0117%3A14. Public record. Not legal advice.