High Court May Revive ‘Decency’ Law

WASHINGTON — Jumping into one of the major battles in the nation’s culture wars, the Supreme Court announced on Wednesday it will consider reviving a federal law that imposed “general standards of decency” on the awarding of federal arts grants.

The case, to be heard in March, pits the free-speech rights of artists versus the government’s power to control how its money is used. The Clinton administration pressed the appeal of a lower-court ruling that overturned the law Congress passed in 1990.

Responding to reports of allegedly pornographic and blasphemous art receiving federal subsidies, the lawmakers had put new restrictions on the National Endowment for the Arts. Grants officers were told that in addition to the standard criteria of “artistic excellence and merit,” they should also “take into consideration general standards of decency and respect for the diverse beliefs and values of the American public.”

Soon after, four “performance artists” who had been recommended for small, individual grants by review panels were turned down by top NEA officials. The “NEA 4”--John Fleck of Los Angeles, Tim Miller of Santa Monica and Karen Finley and Holly Hughes, both of New York--filed a lawsuit in Los Angeles claiming the new “decency” standard violated the 1st Amendment’s guarantee of freedom of speech.

“What this is basically about is that gay and lesbian artists cannot do work about what they know,” Finley said of the case Wednesday. “In my case, it’s that as a woman I can’t do work about women’s oppression, or as a straight person talking about gay rights.”

Finley earned notoriety by appearing on stage naked but covered in melted chocolate.

Fleck said, “What seems clearer to me . . . is that if [the] government gives money to universities and doesn’t tie it into standards of decency, then why do they do it with artistic [endeavors]? If there’s academic freedom, there should also be artistic freedom.”

Miller, who heads Highways Performance Space, an experimental theater group, argued that the decency guidelines should not be part of the NEA’s decision-making. “It is inappropriate in a federal agency that is about free expression,” he said.

U.S. District Judge A. Wallace Tashima essentially agreed. In 1992, he struck down the “decency” standard because it was vague in its meaning and designed to stifle “speech and artistic expression that is protected by the 1st Amendment. . . . Artistic expression is at the core of a democratic society,” he said.

Last year, the U.S. 9th Circuit Court of Appeals in San Francisco upheld his decision on a 2-1 vote. But a sharp dissent from Judge Andrew Kleinfeld of Fairbanks, Alaska, may have attracted the high court’s attention.

“First Amendment law has taken some odd turns lately,” he began. On one hand, it is deemed illegal under the 1st Amendment to display a cross or menorah on government property. “But if the cross is dipped in urine, a government grant cannot be withheld. . . . This self-contradictory silliness is not built into the Bill of Rights.”

Kleinfeld referred to Andres Serrano’s photograph that portrayed a cross submerged in urine. This was one of the NEA-funded exhibits that aroused the ire of Congress and prompted the decency standard.

Artists and all others are entirely free to “express themselves indecently and disrespectfully,” Kleinfeld said, but they are not entitled to government funding for their efforts.

Clinton administration lawyers relied on Kleinfeld’s dissent in appealing the case of NEA vs. Finley, 97-371.

The administration’s decision to pursue the appeal came as no surprise, because a federal law is rarely overturned without a full judicial review. Still, the administration’s action has been criticized within the arts community.

Said Fleck: “Clinton, he’s a mixed bag of tricks. It seems like he’s good at offering carrots to the conservatives, and this is one of those issues. There’s disappointment with him in that area.”

The court battle may have more symbolic than practical significance.

Conservatives in Congress, while failing in efforts to abolish the NEA, have slashed its funding. Since 1992, when the decency standard was invalidated, the agency’s budget has fallen from $176 million to $98 million for the current fiscal year. And the individual theater grants, such as those sought by the “NEA 4,” have been canceled.

For their part, the justices have been closely divided of late on whether the 1st Amendment allows the government to restrict any form of expression that it subsidizes.

Ironically, lawyers for the performance artists are relying heavily on a recent free-speech victory won by conservative Christians.

In 1995, the high court on a 5-4 vote ruled the University of Virginia violated the 1st Amendment when it refused to fund a student magazine published by young Christians. The university had provided subsidies for all manner of student publications on campus, except for those advocating religious views.

Four years earlier, the court took a different tack in an abortion-related case. In a 5-4 ruling in Rust vs. Sullivan, the court upheld the federal regulation that barred doctors and nurses in subsidized family-planning clinics from advising pregnant patients about abortion.

The justices will rule on the NEA case by the end of the court’s term in late June.

Times special correspondent Jan Breslauer in Los Angeles contributed to this story.