Just how much of a setback to the First Amendment was the Supreme Court's decision in National Endowment for the Arts v. Finley?
At first the impact seemed major. The court by an 8-1 margin decided that the NEA may consider standards of decency in deciding which artists should receive federal grants. The June 25 ruling triggered reactions of disappointment among First Amendment advocates. Later that day Karen Finley, the artist who first challenged the decency standard, interrupted her New York performance in "The Return of the Chocolate-Smeared Woman" to say, "This is a great loss to our country."
But in the days since the ruling, the initial alarm seems to have subsided, and the consensus now appears to be that the First Amendment damage is limited, and the court established no new or damaging free-speech doctrine.
"A near-term loss for artists, but it leaves First Amendment law untouched," was the verdict of Stanford University law professor Kathleen Sullivan.
The decency standard was enacted by Congress in 1990 in the wake of angry protests by Sen. Jesse Helms, R-N.C., among others, over NEA funding for Robert Mapplethorpe's homoerotic photographs and Andres Serrano's urine-soaked crucifix called "Piss Christ." Helms described them as "homosexual pornography" and "blasphemy," respectively.
So how did the court manage to embrace a law with such anti-speech origins while leaving the First Amendment intact?
Justice Sandra Day O'Connor accomplished the difficult feat in part by describing the law in far less speech-threatening terms than its critics did.
Instead of imposing a decency requirement, O'Connor said the law was merely advisory, adding one more "consideration" to a host of subjective factors already in the mix when the NEA funds artists. "It does not preclude awards to projects that might be deemed indecent or disrespectful," O'Connor said in the majority opinion. As a result, with an almost wishful tone, O'Connor said, "the court does not perceive a realistic danger that it will be utilized to preclude or punish the expression of particular views."
The court acknowledged that the words of the law are "undeniably opaque," and might in other contexts be unconstitutionally vague. But since the grant process is by necessity a subjective process anyway, O'Connor said artists are probably already shaping their art to meet the endowment's criteria and would not be unduly chilled by the decency requirement. "When the government is acting as patron rather than as sovereign, the consequences of imprecision are not constitutionally severe," O'Connor wrote.
Since the law was challenged before it was fully applied, O'Connor added it was impossible to know whether the law would be applied in a way that would violate the First Amendment. "Unless and until [the law] is applied in a manner that raises concern about the suppression of disfavored viewpoints, we uphold the constitutionality of the provision."
In short, O'Connor found the law to be advisory, harmlessly vague and only speculatively unconstitutionalbenign enough, in the end, to be constitutional. Under that analysis, the court could endorse the law without disturbing its traditional rule that when government funds or sponsors speech, it must do so in a viewpoint-neutral way. O'Connor's opinion was joined by Chief Justice William Rehnquist and Justices John Paul Stevens, Anthony Kennedy, and Stephen Breyer.
Justice Antonin Scalia, joined by Justice Clarence Thomas, agreed with O'Connor that the law was constitutional. But they chided O'Connor for de-fanging the law in order to save it.
"The operation was a success, but the patient died," Scalia said sarcastically. "What such a procedure is to medicine, the court's opinion in this case is to law. It sustains the constitutionality of [the law] by gutting it"
Scalia preferred to interpret the law as a more muscular measureone that is not merely advisory but imposes viewpoint-based criteria on arts grants. But Scalia's fortified version of the law is still constitutional, he said, because government funding decisions can never be said to "abridge" free speech in violation of the First Amendment.
"The nub of the difference between me and the court is that I regard the distinction between abridging speech and funding is as a fundamental divide, on this side of which the First Amendment is inapplicable," Scalia said.
If Scalia's view had prevailed, Stanford professor Sullivan said, the ruling would have represented a "sea-change" in First Amendment doctrine.
Justice David Souter was the only member of the court who viewed the law as both strong and unconstitutional. In his dissent, Souter said the O'Connor majority was "patently mistaken" in finding that the law was viewpoint-neutral. The fact that the law only tells the NEA to "consider" decency does not make it neutral, Souter asserts. He suggested that if Congress told the NEA to consider "the superiority of the white race" in doling out funds, the court would surely find it unconstitutional even though it was only advisory.
Souter's strong pro-First Amendment stance is somewhat ironic. One of the first cases he voted in after joining the court in 1990 was Rust v. Sullivan, in which the court held that government can require government-funded family planning clinics not to discuss abortion as an option with patients. Souter was the swing vote in favor of that position. Eight years later, he was the only justice who seemed to think that when government gives out money with viewpoint-related strings attached, it violates the First Amendment.
But however Souter's views evolved to where they are today, the fact, disturbing to some First Amendment advocates, is that he was alone in dissent. But others in the First Amendment community are content to applaud O'Connor's strategic wisdom in convincing a majority of justicesincluding some conservativesto join an opinion that could be applauded by the Christian right without doing too much damage to the First Amendment.
In the process, O'Connor may even have managed to help inoculate the NEA from future attack from Republicans who have targeted the agency for elimination ever since it became a battleground in the cultural wars of a decade ago. On the same day as the Supreme Court ruling, a House appropriations committee approved a $98 million budget for the agency. NEA chairman William Ivey could only describe the coincidence of timing as "cosmic."
Following is a sampling of reactions by organizations to NEA v. Finley:
Family Research Council: "No individual has a right to be granted tax dollars with no strings attached," said cultural director Robert Knight. "If the government's in the art business, it has every right to call the tune."
American Civil Liberties Union: "The court's reading of the law is unrealistic, and ignores the real-world chilling effect of the 'decency and respect' language on artists, arts institutions and the agency itself," said Marjorie Heins, senior staff attorney. "But the court's decision does relatively little damage to the First Amendment principle that when the government is supporting free expression… it cannot discriminate against unconventional or controversial ideas."
National Endowment For The Arts: "Today's decision is an endorsement of the endowment's mission to nurture the excellence, vitality and diversity of the arts and a reaffirmation of the agency's discretion in funding the highest quality art in America," said NEA chairman William Ivey. "The endowment remains committed to full First Amendment protection of freedom of expression."
The Creative Coalition: "Today's ruling allows the government to discriminate against non-traditional art forms and is clearly a violation of artists' rights," said actor William Baldwin, president of the coalition. "Artists may now be judged on their political and social views rather than the excellence of their work. … The true issue at stake is the standard over which art is defined and judged."
Morality in Media: "We are thankful the Supreme Court upheld an approach to public funding of the arts that for most Americans just makes plain common sense," said president Robert Peters. "Namely, that while the First Amendment prevents government from banning all 'art' that offends standards of decency and civility, it doesn't require government to fund it."
Christian Coalition: "This ruling was a victory for millions of pro-family taxpayers who have been forced to fund pornography and indecency under the guise of art," said Randy Tate, executive director. "Although this decision places the onus on the NEA to deny funding for offensive art, we are still not convinced they will act responsibly. Ultimately, both taxpayers and the arts are better served by local, private funding."
Tony Mauro covers the Supreme Court for USA TODAY and is a legal correspondent for the First Amendment Center