National Endowment for the Arts v. Finley, 524 U.S. 569; 118 S. Ct. 2168; 141 L. Ed. 2d 500 (1998)
Facts—Stung by outcries over federal funding of art that was considered to be obscene or blasphemous, Congress amended the National Foundation on the Arts and Humanities Act of 1990 to require the National Endowment for the Arts (NEA) to assure that “artistic excellence and artistic merit are the criteria by which [grant] applications are judged, taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public.” After a number of performance artists, including Finley, questioned this provision, the U.S. District Court and the U.S. Ninth Circuit invalidated this provision as improper viewpoint discrimination and for being void for vagueness.
Question—Does the provision of the National Foundation on the Arts and Humanities Act of 1990 calling for the NEA to take account of standards of decency and respect for diverse viewpoints violate the First Amendment?
Decision—No.
Reasons—J. O’Connor (6 1/2–1 1/2) O’Connor, like the NEA, reads the congressional regulation at issue as “merely hortatory.” It “imposes no categorical requirement” and “stands in sharp contrast to congressional efforts to prohibit the funding of certain classes of speech.” The NEA interpreted the congressional provision as a call for creating panels that reflected diverse viewpoints. The requirement for the NEA to fund works that are “artistic” already calls for subjective judgments, and considerations of “decency” are appropriate where works are judged in part for their “educational suitability.” There is no evidence that the NEA has exercised its power to prohibit funding of disfavored viewpoints. Questions as to whether laws are void for vagueness have primary weight when addressing matters of criminal law, “But when the Government is acting as patron rather than as sovereign, the consequences of imprecision are not constitutionally severe.” Congress has merely added “some imprecise considerations to an already subjective selection process.”
J. Scalia, concurring, argued that the majority decision is equivalent to saying that “The operation was a success, but the patient died.” Scalia believed that Congress was quite clear in expecting that decency and respect were to be taken into account, and he saw no problem with such requirements for “viewpoint discrimination” in cases where government is not restricting speech but deciding which speech it will fund. Those who want to create “indecent and disrespectful art are as unconstrained now as they were before the enactment of this statute.” This law was simply designed to limit the funding of such speech. Scalia does not think that the void for vagueness requirement applies to cases involving government funding.
J. Souter, dissenting, viewed the congressional requirement as a clear case of unconstitutional viewpoint discrimination: “a statute disfavoring speech that fails to respect America’s ‘diverse beliefs and values’ is the very model of viewpoint discrimination; it penalizes any view disrespectful to any belief or value espoused by someone in the American populace.” He did not think that the NEA had interpreted the statute plausibly. He argued that the decision in Rosenberger v. Rector and Visitors of University of Virginia, 515 U.S. 819 (1995) should govern here, in that, once the government creates a forum, it should not discriminate among the viewpoints aired in this forum. Souter was further concerned that the statute was overly broad and vague and “carries with it a significant power to chill artistic production and display.”