indecency

In 1965 Congress created the National Endowment for the Arts through the National Foundation on the Arts and the Humanities Act. The statute vests the NEA with substantial discretion to award grants for artistic projects. In 1989 two NEA-supported exhibitions drew congressional criticism. 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. 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. Congress responded in the 1990 appropriations legislation by first barring funds for obscene or indecent materials. After an Independent Commission report, Congress enacted the Williams/Coleman Amendment that became 20 U.S.C. § 954(d)(1). 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. The language has appeared in every subsequent NEA appropriation. Four performance artists—Karen Finley, John Fleck, Holly Hughes, and Tim Miller—applied for NEA grants before the 1990 amendment. Advisory panels recommended approval of their projects both initially and on reconsideration. A majority of the Council subsequently recommended disapproval, and in June 1990 the NEA informed respondents that they had been denied funding. The artists and the National Association of Artists' Organizations later joined as plaintiffs. The respondents sued in the United States District Court for the Central District of California. They alleged statutory violations, Privacy Act breaches, and First Amendment claims arising from the grant denials. After Congress passed § 954(d)(1), respondents amended their complaint to add a facial challenge to the new provision. The District Court granted summary judgment for the respondents in 1992. A divided Ninth Circuit panel affirmed in 1996. The Supreme Court granted certiorari in 1997.

In Houston, Texas, officers of the Harris County Police Department were dispatched to a private residence in response to a reported weapons disturbance. They entered an apartment where one of the petitioners, John Geddes Lawrence, resided. The officers observed Lawrence and another man, Tyron Garner, engaging in a sexual act. The two petitioners were arrested, held in custody overnight, and charged and convicted before a Justice of the Peace. The complaints described their crime as "deviate sexual intercourse, namely anal sex, with a member of the same sex (man)." Texas Penal Code Ann. § 21.06(a) (2003) provides that a person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex. The statute defines deviate sexual intercourse as any contact between any part of the genitals of one person and the mouth or anus of another person, or the penetration of the genitals or the anus of another person with an object. The petitioners exercised their right to a trial de novo in Harris County Criminal Court. They challenged the statute as a violation of the Equal Protection Clause of the Fourteenth Amendment and of a like provision of the Texas Constitution. Those contentions were rejected. The petitioners, having entered a plea of nolo contendere, were each fined $200 and assessed court costs of $141.25. The Court of Appeals for the Texas Fourteenth District considered the petitioners' federal constitutional arguments under both the Equal Protection and Due Process Clauses of the Fourteenth Amendment. After hearing the case en banc the court, in a divided opinion, rejected the constitutional arguments and affirmed the convictions. The majority opinion indicates that the Court of Appeals considered our decision in Bowers v. Hardwick, 478 U.S. 186 (1986), to be controlling on the federal due process aspect of the case. The Supreme Court granted certiorari to consider three questions. The petitioners were adults at the time of the alleged offense. Their conduct was in private and consensual.

Respondents Glen Theatre, Inc. and Kitty Kat Lounge, Inc. operate establishments in South Bend, Indiana, that provide adult entertainment including live performances by nude or seminude dancers viewed through glass panels or on stage. Darlene Miller worked at the Kitty Kat Lounge on commission and sought to dance totally nude to increase her earnings. Gayle Ann Marie Sutro performed at Glen Theatre after a professional career in dancing and modeling. In 1985 the city enacted an ordinance banning public nudity, defined as the showing of genitals, pubic area, buttocks, or female nipples with less than full opaque covering, which required dancers to wear pasties and G-strings. Respondents filed suit in the United States District Court for the Northern District of Indiana alleging that the ordinance violated the First Amendment by prohibiting totally nude dancing. The District Court originally granted respondents' prayer for an injunction, finding that the statute was facially overbroad. On remand after the Seventh Circuit's initial reversal, the District Court concluded that the type of dancing these plaintiffs wish to perform is not expressive activity protected by the Constitution of the United States. It rendered judgment in favor of the defendants. The case was again appealed to the Seventh Circuit, and a panel of that court reversed the District Court, holding that the nude dancing involved here was expressive conduct protected by the First Amendment. The Supreme Court granted certiorari to resolve a conflict among the Courts of Appeals on the question whether nude dancing is expressive conduct protected by the First Amendment.

Congress enacted Section 505 of the Telecommunications Act of 1996 to address signal bleed from channels primarily dedicated to sexually oriented programming. The statute required cable operators either to fully scramble or block such channels or to limit transmission to the hours between 10 p.m. and 6 a.m. Playboy Entertainment Group, Inc. owns and prepares programs for Playboy Television and Spice. It transmits its programming to cable operators who retransmit the signals in scrambled form to paying subscribers via addressable converters. Almost all of Playboy's programming consists of sexually explicit material as defined by the statute. Imperfect analog scrambling on RF or baseband systems produced signal bleed, allowing non-subscribers to see or hear portions of the programming. Most cable operators complied with Section 505 by time channeling the targeted programming. This eliminated the targeted programming for two-thirds of the day in affected service areas. The result was a significant reduction in Playboy's revenues because 30 to 50 percent of adult programming was viewed before 10 p.m. Playboy filed suit in a three-judge District Court. It obtained a temporary restraining order on March 7, 1996. After the FCC began enforcement on May 18, 1997, the court held a full trial in March 1998. At trial the Government presented anecdotal evidence of complaints from two city councilors, eighteen individuals, one senator, and officials of one city. The Government also presented an expert estimate that 39 million homes with 29.5 million children had the potential to be exposed to signal bleed. A survey showed fewer than 0.5 percent of subscribers requested blocking under Section 504 during the period when Section 505 was enjoined. The District Court found the Government had not quantified the actual extent of signal bleed. It also found that Section 504 supplemented with adequate notice could serve as an effective alternative. The District Court declared Section 505 unconstitutional and enjoined its enforcement. The United States filed a direct appeal. The Supreme Court noted probable jurisdiction in 1999.