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The Supreme Court Has Agreed To Decide Whether the Government Can Set Decency Standards for

November 26, 1997

The Supreme Court Has Agreed To Decide Whether the Government Can Set Decency Standards for Cash Grants to ArtistsBy LAURIE ASSEO

WASHINGTON (AP) _ The Supreme Court agreed Wednesday to decide whether federal grants to artists can be tied to decency standards in a case pitting free-speech rights against Congress’ desire to avoid spending tax dollars on lewd art.

The justices said they will consider reinstating a law that required the National Endowment for the Arts to consider decency, as well as artistic merit, in handing out public money.

The court also said it will use a dispute over a dentist who refused to treat an HIV-infected woman at his office to clarify legal protections against bias for people with the AIDS virus.

A dentist from Bangor, Maine, is appealing a lower court ruling that said he violated the federal Americans With Disabilities Act when he told the woman he would only fill her cavity at a hospital.

The arts-funding law was enacted by Congress in 1990 following public controversy over the NEA’s role in funding such works as the homoerotic images of Robert Mapplethorpe and Andres Serrano’s ``Piss Christ,″ a photograph of a crucifix immersed in urine.

The NEA was created in 1965 to subsidize artists and arts groups, but some conservatives contend it finances obscenity. House Republicans had vowed to kill the NEA, but the agency won another year of funding last month.

The 1990 law required the NEA 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.″

The law was challenged in court by the National Association of Artists’ Organizations and performance artists Karen Finley, John Fleck, Holly Hughes and Tim Miller.

A federal judge in Los Angeles ruled the law unconstitutional, saying it was too vague and violated artists’ free-speech rights.

The 9th U.S. Circuit Court of Appeals agreed in November 1996, saying the law allowed the government to discriminate based on the content of an artist’s work.

Under the law, ``funding may be refused because of the artist’s political or social message or because the art or the artist is too controversial,″ the appeals court said. ``Government funding does not invariably justify government control of the content of speech.″

In the appeal granted Supreme Court review, Justice Department lawyers said the 9th Circuit court’s ruling ``prevents Congress from making a legitimate legislative choice respecting the expenditure of public funds.″

NEA funding choices necessarily are based on the content of an artist’s proposed work, but a decency standard does not amount to viewpoint discrimination, government lawyers said.

The artists’ lawyers said the 9th Circuit court correctly ruled that the law allows government discrimination against any arts project ``that an NEA official deems `indecent’ or `disrespectful.‴

The justices also said Wednesday they would:

_Decide whether authorities may search the homes of paroled criminals not suspected of misconduct, when the criminals agreed to home searches as a condition of parole.

_Use an airline pilots’ lawsuit to clarify whether nonunion workers can be forced to go through arbitration before filing a lawsuit to challenge fees they are required to pay to a union under an agency-shop agreement.

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