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Court To Study Indecency in Art

March 31, 1998

WASHINGTON (AP) _ The Supreme Court wrestled today with the question of whether the government can deny money to artists who produce indecent material. ``I don’t know what the word `indecent’ means,″ Justice Stephen G. Breyer said.

The government is asking the court to allow the National Endowment for the Arts to take ``general standards of decency″ into account in awarding grants.

Several justices suggested that if the government can underwrite messages such as Just Say No to Drugs, or withhold grants to offensive groups such as white supremacists, it might be justified in picking and choosing artists to support.

But some justices put little stock in the government’s contention that its decency standard is, as Solicitor General Seth Waxman, put it, ``innocuous.″

``I think you will have a hard time persuading me the statute is meaningless,″ Justice Anthony M. Kennedy said. He said the law took a ``wink, wink, nudge, nudge approach″ to restricting support for controversial artists _ ``meaningless, but everybody knows what it means.″

The court is expected to decide by July whether the decency standard, struck down after being applied for less than two years, is constitutional.

Attorney David Cole, representing performance artist Karen Finley and three others who opposed the NEA’s criteria, said grant decisions were being improperly made on the basis of the viewpoints of public officials.

``If you are respectful of American beliefs and values, you are advantaged,″ he said, arguing the government is not entitled to exclude grant applicants because they are not sufficiently in tune with the prevailing public sentiment.

Breyer, however, questioned whether it is wrong for officials to make the subjective judgment ``on what ordinary people believe is beautiful.″

And in wondering aloud whether any great art through the ages was also indecent, he concluded: ``I can’t think of one.″

The ruling could carry as much political and cultural impact as legal significance. The NEA, created in 1965 to subsidize artists and art groups, has become a favorite target of some conservatives.

House Republicans pledged to kill the agency in 1997 but it won another year of money last October. Congress has prohibited most grants to individual artists, however.

The Clinton administration is urging the justices to let the government tie grant awards to decency standards by ruling that such strings don’t violate artists’ free-speech rights.

Lawyers for Finley and three other artists are urging the opposite. Joined by the National Association of Artists’ Organizations, the four successfully attacked a 1990 decency provision passed by Congress and the NEA’s use of the law.

Two lower courts in California ruled for the artists, stating that ``government funding does not invariably justify government control of the content of speech.″

The lower courts invalidated the law Congress had passed after public furor over the NEA’s role in funding such works as the homoerotic images of Robert Mapplethorpe and an Andres Serrano photograph of a crucifix dipped in urine.

Under the law, the NEA was to judge grant applications on artistic merit, ``taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public.″

In defending the law, the administration relies heavily on a 1991 Supreme Court decision President Clinton opposed.

The decision allowed the government to prohibit the use of federal money for abortion counseling. The justices ruled that federally subsidized family-planning clinics can be barred from discussing abortion with pregnant women or from telling them where to get one.

When elected the next year, Clinton eradicated that government policy.

The artists rely on another Supreme Court ruling, one in which the justices invalidated a university’s policy of denying financial subsidies for a student-run religious magazine while subsidizing other student publications and activities.

In that 1995 decision, the court said the policy unlawfully discriminated on the basis of content in a ``public forum″ the school itself created.

How the justices decide the NEA case may hinge on which previous ruling they think provides the closest analogy.

The case is National Endowment for the Arts vs. Finley, 97-371.

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