Speech and Expression
Government Speech
National Endowment for the Arts v. Finley (1998)
524 U.S. 569 (1998)
Vote: 8-1
Decision: Reversed
Majority: O’Connor, joined by Rehnquist, Stevens, Kennedy, Breyer and Ginsburg (all but Part I-B)
Concurrence: Scalia (in judgment), joined by Thomas
Dissent: Souter
Justice O’Connor delivered the opinion of the Court.
The National Foundation on the Arts and Humanities Act, as amended in 1990, requires the Chairperson of the National Endowment for the Arts (NEA) 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.” In this case, we review the Court of Appeals’ determination that [the statute], on its face, impermissibly discriminates on the basis of viewpoint and is void for vagueness under the First and Fifth Amendments. We conclude that [the statute] is facially valid, as it neither inherently interferes with First Amendment rights nor violates constitutional vagueness principles.
With the establishment of the NEA in 1965, Congress embarked on a “broadly conceived national policy of support for the … arts in the United States,” pledging federal funds to “help create and sustain not only a climate encouraging freedom of thought, imagination, and inquiry but also the material conditions facilitating the release of … creative talent.” …
Applications for NEA funding are initially reviewed by advisory panels composed of experts in the relevant field of the arts. Under the 1990 Amendments to the enabling statute, those panels must reflect “diverse artistic and cultural points of view” and include “wide geographic, ethnic, and minority representation,” as well as “lay individuals who are knowledgeable about the arts.” The panels report to the 26-member National Council on the Arts (Council), which, in turn, advises the NEA Chairperson. The Chairperson has the ultimate authority to award grants but may not approve an application as to which the Council has made a negative recommendation.
… Throughout the NEA’s history, only a handful of the agency’s roughly 100,000 awards have generated formal complaints about misapplied funds or abuse of the public’s trust. Two provocative works, however, prompted public controversy in 1989 and led to congressional revaluation of the NEA’s funding priorities and efforts to increase oversight of its grant-making procedures …
When considering the NEA’s appropriations for fiscal year 1990, Congress reacted to the controversy surrounding the Mapplethorpe and Serrano photographs by eliminating $45,000 from the agency’s budget, the precise amount contributed to the two exhibits by NEA grant recipients. Congress also enacted an amendment providing that no NEA funds “may be used to promote, disseminate, or produce materials which in the judgment of [the NEA] may be considered obscene, including but not limi