524 U.S. 569 (1998)
In 1965 Congress created the National Endowment for the Arts through the National Foundation on the Arts and the Humanities Act.1 The statute vests the NEA with substantial discretion to award grants for artistic projects.2
In 1989 two NEA-supported exhibitions drew congressional criticism.3 The Institute of Contemporary Art at the University of Pennsylvania had used $30,000 of a visual arts grant it received from the NEA to fund a 1989 retrospective of photographer Robert Mapplethorpe's work.4 Andres Serrano had been awarded a $15,000 grant from the Southeast Center for Contemporary Art, an organization that received NEA support, for his photograph Piss Christ depicting a crucifix immersed in urine.5
Congress responded in the 1990 appropriations legislation by first barring funds for obscene or indecent materials.6 After an Independent Commission report, Congress enacted the Williams/Coleman Amendment that became 20 U.S.C. § 954(d)(1).7 That provision directs the Chairperson to ensure that 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.8 The language has appeared in every subsequent NEA appropriation.9
Four performance artists—Karen Finley, John Fleck, Holly Hughes, and Tim Miller—applied for NEA grants before the 1990 amendment.10 Advisory panels recommended approval of their projects both initially and on reconsideration.11 A majority of the Council subsequently recommended disapproval, and in June 1990 the NEA informed respondents that they had been denied funding.12 The artists and the National Association of Artists' Organizations later joined as plaintiffs.13
The respondents sued in the United States District Court for the Central District of California.14 They alleged statutory violations, Privacy Act breaches, and First Amendment claims arising from the grant denials.15 After Congress passed § 954(d)(1), respondents amended their complaint to add a facial challenge to the new provision.16 The District Court granted summary judgment for the respondents in 1992.17 A divided Ninth Circuit panel affirmed in 1996.18 The Supreme Court granted certiorari in 1997.19
Whether 20 U.S.C. § 954(d)(1) is facially valid under the First Amendment?20
The government may allocate competitive funding according to criteria of its choosing, including content-based considerations, when subsidizing speech, provided the provision does not prohibit speech, penalize particular viewpoints, or compel endorsement of government-preferred ideas.21
Yes. The provision in 20 U.S.C. § 954(d)(1) adds general standards of decency and respect for the diverse beliefs and values of the American public to the criteria for judging artistic excellence and artistic merit in NEA grant applications.22 The established facts show that the NEA's grant-making process is inherently selective, with far more applications than funds available.23 The provision does not preclude awards to projects that some might find indecent or disrespectful.24 It merely requires the NEA to take such considerations into account when making decisions.25
The four performance artists had their grants denied before the provision took effect.26 The NEA has construed the language as hortatory rather than a categorical bar.27
Section 954(d)(1) is facially valid under the First Amendment.28
Related opinions on this issue
Joined by Justice Thomas
Justice Scalia concurred in the judgment on the ground that the provision establishes content- and viewpoint-based criteria upon which grant applications are to be evaluated.29 Such criteria are constitutional because the First Amendment does not compel the government to subsidize all speech equally.30 He emphasized that the statute means what it says in requiring the factors to be taken into account in every case.31
Denial of a subsidy does not abridge speech.32 The government is entitled to make content-based choices when it subsidizes speech, and the NEA's enabling statute requires the agency to take into account artistic excellence and artistic merit along with the decency and respect provision as an additional criterion that Congress has determined should be considered.33
Justice Thomas joined Justice Scalia's concurrence without separate writing, thereby endorsing the view that the provision is constitutional as a valid exercise of Congress's authority to determine what sorts of speech the government will subsidize.34 He agreed that the government is entitled to make content-based choices when it subsidizes speech and that there is no constitutional prohibition on Congress adding such criteria to the NEA's grant-making process.35
Justice Souter dissented on the ground that the provision is a viewpoint-based restriction on speech that violates the First Amendment because it requires the NEA to consider the content and viewpoint of proposed art when judging applications for a program that funds a wide range of artistic expression.36 He argued that reliance on Rust v. Sullivan is misplaced.37 The statute has a chilling effect on artists who fear that their work may be deemed indecent or disrespectful.38
The provision is also unconstitutionally vague because the terms decency and respect are inherently subjective and the NEA's guidelines do not provide adequate guidance to prevent arbitrary and discriminatory application.39
Whether the decency and respect provision constitutes impermissible viewpoint discrimination in the award of government grants?40
Viewpoint discrimination occurs when the government targets particular views for disadvantage.41 In the subsidy context the government may favor certain perspectives without violating the First Amendment so long as it does not suppress disfavored ideas through coercive means or create a limited public forum open to all speakers.42
No. Although the provision introduces considerations of decency and respect, it does not target particular viewpoints or compel the suppression of any particular idea.4344 The NEA has implemented it through diverse advisory panels without evidence of denial based on viewpoint.45 The facts indicate the denial of grants to the four performance artists occurred before the provision's enactment.46 The political context shows the language was a bipartisan compromise aimed at reforming procedures rather than precluding speech.47
The NEA receives far more applications than it can fund, requiring content-based judgments inherent to selective arts funding.48
The decency and respect provision does not constitute impermissible viewpoint discrimination in the award of government grants.49
Related opinions on this issue
Joined by Justice Thomas
Justice Scalia concurred on the ground that the provision unquestionably constitutes viewpoint discrimination by making it more difficult for indecent or disrespectful art to receive funding.50 Yet it remains constitutional because Congress may selectively fund projects it believes to be in the public interest without abridging anyone's freedom of speech.51 The First Amendment reads that Congress shall make no law abridging the freedom of speech.52
With the enactment of the provision, Congress did not abridge the speech of those who disdain the beliefs and values of the American public.53 Those who wish to create indecent and disrespectful art are as unconstrained now as they were before the enactment of this statute.54
Justice Thomas joined Justice Scalia's concurrence without separate writing, thereby endorsing the view that the provision is constitutional as a valid exercise of Congress's authority to determine what sorts of speech the government will subsidize. He agreed that the government is entitled to make content-based choices when it subsidizes speech and that there is no constitutional prohibition on Congress adding such criteria to the NEA's grant-making process. The First Amendment does not compel the government to subsidize all speech equally, and the statute means what it says in requiring the decency and respect factors to be taken into account in evaluating applications.55
Justice Souter dissented on the ground that the provision is quintessentially viewpoint based because it penalizes art that fails to respect mainstream values or offends standards of decency.56 The legislative history confirms Congress intended to disfavor works like Serrano's Piss Christ.57 The majority's reliance on Rust v. Sullivan is misplaced because in Rust the government was funding a particular message, whereas here the government is funding a wide range of artistic expression and the decency and respect provision impermissibly discriminates on the basis of viewpoint within that sphere of funded speech.58
Whether the provision is unconstitutionally vague under the Fifth Amendment?59
A statute is unconstitutionally vague if it fails to provide fair notice or invites arbitrary enforcement, but in the context of selective government subsidies rather than criminal penalties or direct regulation of speech, imprecise terms do not raise the same constitutional concerns.60
No. The terms decency and respect have commonly understood meanings, and in the context of selective subsidies rather than direct regulation of speech, the provision does not have a chilling effect that raises constitutional concerns.6162 The facts show the NEA has provided guidelines and the process remains subjective like the artistic excellence criterion itself.63 The established facts demonstrate that the NEA implemented the provision by ensuring diverse panel membership.64 The same imprecision exists in countless other government programs awarding grants on the basis of excellence.65
The provision is not unconstitutionally vague under the Fifth Amendment.66
Related opinions on this issue
Joined by Justice Thomas
Justice Scalia concurred on the ground that the constitutional rule against vague legislation has no application to funding decisions.67 If the vagueness doctrine were applicable, the agency charged with making grants under a statutory standard of artistic excellence would be of more dubious constitutional validity than the decency and respect limitations.68 The vagueness doctrine addresses the problems that arise from government regulation of expressive conduct, not government grant programs.69
In the former context, vagueness produces an abridgment of lawful speech; in the latter it produces, at worst, a waste of money.70
Justice Souter dissented on the ground that the terms decency and respect are inherently subjective and the NEA's guidelines do not provide adequate guidance to prevent arbitrary and discriminatory application, rendering the provision unconstitutionally vague.71 The provision has a chilling effect on artists who fear that their work may be deemed indecent or disrespectful.72 The majority's conclusion that the proviso is not viewpoint based and that the NEA may permissibly engage in viewpoint-based discrimination are all patently mistaken.73