U.S. Supreme Court Rules That "Decency" Can Be Required for Federal Arts Grants

Date June 25, 1998

After the U.S. Congress passed legislation requiring the National Endowment for the Arts to consider general standards of decency before awarding new grants, performance artist Karen Finley and three other artists challenged the law in the courts, arguing that it gave government the power to censor artists whose works were seen was unacceptable because of their disturbing style or unpopular political messages. The U.S. Supreme Court, however, upheld the decency law.

Also known asNational Endowment for the Arts v. Finley, 524 U.S. 569

Locale Washington, D.C.

Key Figures

• Karen Finley (b. 1956), controversial performance artist
• Jesse Helms (b. 1921), U.S. senator from North Carolina
• Sandra Day O’Connor (b. 1930), associate justice of the United States, 1981-2006

Summary of Event

The U.S. Congress established the National Endowment for the Arts (NEA) in 1965 to support artistic accomplishment and community involvement in the arts. Through grants to individuals and museums, the NEA typically supports artists whose work may not be commercially successful. Public arguments about “decency” in the work of NEA-funded artists came to the surface in the late 1980’s, when influential politicians learned of NEA support for the work of Andres Serrano and Robert Mapplethorpe. Serrano was a visual artist whose works included Piss Christ, a photograph showing a plastic crucifix immersed in a small fish tank filled with Serrano’s urine. This photograph was displayed at a contemporary art museum exhibit in Winston-Salem, North Carolina, that was partially funded by the NEA. Mapplethorpe was a photographer whose controversial black-and-white images included scenes depicting homosexual behavior and sadomasochistic sexuality. Mapplethorpe’s work appeared in many books and museum exhibits in Philadelphia and Chicago.

Led by Republican U.S. senator Jesse Helms of North Carolina, a group of politicians with the support of conservatives, including many on the Christian Right, lambasted the NEA for supporting what they saw as morally corrupt and blasphemous art with taxpayers’ dollars. In response to pressure, the Corcoran Gallery of Art in Washington, D.C., withdrew plans to host Mapplethorpe’s exhibition The Perfect Moment in 1989. The Mapplethorpe show traveled to several other cities, where it received mixed reviews but no attempts were made to censor it. When the show reached the Contemporary Arts Center in Cincinnati, Ohio, in 1990, however, the Hamilton County sheriff closed down the exhibit. Public resentment against unregulated government funding of controversial works of art was growing, and some politicians wanted complete abolishment of the NEA because it placed the federal government in the role of unregulated patron of the arts.

When the U.S. Congress reviewed the NEA annual budget for reauthorization in 1990, it placed clear conditions of review on the agency’s funding of future artists and exhibitions. Congress passed U.S. Code 954, which states that the chairperson of the NEA is required to ensure 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.” Furthermore, the law states that the NEA needs to employ funding review procedures that clearly indicate that obscenity is without artistic merit, is not protected speech, and shall not be funded. The new law prevented artists, productions, workshops, and exhibitions that are determined to be generally in violation of standards of decency from receiving any financial support from the NEA.

Artists Holly Hughes, John Fleck, Tim Miller, and Karen Finley had all received small amounts of NEA grant money in the past, but their work seemed to violate the new decency guidelines. This group became known as the NEA Four because theirs was the first artistic work to test the new guidelines. Hughes was a playwright whose work embraced lesbian and feminist themes and had been termed pornographic by some observers. Fleck was a writer and performance artist who had been accused of acts of public indecency, including urination and masturbation. Miller was a gay actor and writer. Finley was a controversial performance artist.

Finley had become famous for works in which she covered her body with yams or chocolate while delivering verbal tirades about female sexuality and oppression of women. She had developed a style of performance in which she challenged audiences about their stereotypes and biases against women. During her monologues, Finley would break out of character to argue with people who laughed at the wrong time or tried to leave before a performance’s conclusion. Another performance art project by Finley consisted of people dialing a telephone number to talk with each other. In her work, Finley tried to bring attention to the status of women and to bring oppressed voices into the open. She felt that women were marginalized, sanitized, and taught to sound safe and domesticated, like the voices of characters in novels by Barbara Pym or Jane Austen.

When Finley, Hughes, Fleck, and Miller applied to the NEA again for funding after the new law was passed, the agency’s board of directors initially approved them. However, new NEA director John Frohnmayer then vetoed the recommendations of the board and denied funding to the four artists on the grounds that their work was blatantly sexual and controversial and seemed to go against community standards of decency. In response, the NEA Four brought a lawsuit against the NEA, claiming that Frohnmayer’s veto went against the 1965 NEA original charter to support artists. They also asserted that the new grant review process limited their freedom of expression, in violation of the First Amendment of the U.S. Constitution.

By a vote of eight to one, the U.S. Supreme Court held that the NEA could reference community standards of decency in making budgetary decisions about funding artists and exhibitions. In writing for the majority, Justice Sandra Day O’Connor stated that upholding decency standards does not constitute an act of censorship or a violation of free speech guaranteed in the First Amendment. O’Connor wrote that the NEA law is not absolute in nature but only advisory, just one consideration in a complicated and subjective review process. The law does not deliberately exclude future works of art that some might perceive as indecent, nor does it discourage future artistic accomplishment or support of artists, exhibits, and museums. O’Connor also wrote that the law does not violate artists’ First Amendment rights and does not violate constitutional prohibitions against vagueness.

Significance

During the 1980’s and the presidency of Ronald Reagan, the political climate in the United States turned away from the uncritical liberalism of the 1960’s and 1970’s. The U.S. Supreme Court finding in National Endowment for the Arts v. Finley had a chilling effect on performance artists and exhibitions of art that embraced controversial, disturbing, and sexual themes, although in the short term the case brought added attention to the artists of the NEA Four. Although Karen Finley complained of government censorship and suppression of free speech, the notoriety of the case guaranteed large audiences at her future performances.

Many observers asserted that accountability and public oversight of the NEA were long overdue. The federal law requiring consideration of standards of decency was based on common sense, even though Senator Helms tended to sound alarmist and his arguments struck fear into the hearts of liberals and patrons of the arts. The Supreme Court’s ruling did not challenge the integrity of the guarantee of freedom of speech in the First Amendment because the Court viewed the NEA guidelines as advisory. The decency requirement was only one of many factors the NEA board needed to consider when reviewing grant applications, and the requirement was never meant to apply more broadly to all displays of art or public art galleries. Controversial artists such as Finley were understandably upset by the ruling, but the increased publicity and vociferous political attacks against the NEA that surrounded the case actually brought out advocates on the other side and helped the government agency in its mission of supporting art and artists.

Bibliography

Mey, Kerstin. Art and Obscenity. New York: I. B. Tauris, 2007. Examines reactions to the works of twentieth century artists who have created art that some deem obscene or unacceptable.

Scholossman, David A. Actors and Activists: Performance, Politics, and Exchange Among Social Worlds. New York: Garland, 2001. Provides a good overview of the issues involved in the NEA controversy, with chapters on critical theory, performance art, the NEA Four, and issues surrounding the production of the musical Miss Saigon.

Yenawine, Philip, Marianne Weems, and Brian Wallis, eds. Art Matters: How the Culture Wars Changed America. New York: New York University Press, 1999. Collection of essays discusses visual art, popular culture, arts funding, censorship, and the nature of controversial artwork that explores racially and sexually challenging ideas.

Zeigler, Joseph Wesley. Arts in Crisis: The National Endowment for the Arts Versus America. Pennington, N.J.: A Cappella Books, 1994. Provides a historical overview of American public and government attitudes about funding in the arts. Includes a foreword by Garrison Keillor titled “Thanks for Attacking the NEA” and a chapter on the NEA Four.