Summary of National Endowment for the Arts v. Finley
Citation: 524 U.S. 569 (1998)
Relevant Facts: Congress created the National Endowment for the Arts (NEA) in order to provide funding in support of the arts. Artists and arts organizations could apply for funding from the NEA in support of their artistic endeavors, and such applications were then reviewed by experts as a part of a thorough process for awarding limited funds. In 1989, the NEA funded several controversial projects. As a result, Congress adopted an amendment when they reauthorized the NEA and appropriate funding. Under §954(d)(1), Congress directed the chairperson of the NEA to use artistic excellence as the standard for evaluating applications, and required consideration of general standards of decency and respect for diverse viewpoints as a part of the funding review process. While the NEA failed to issue an interpretation of the amendment, they did direct that members of the advisory panel represent diverse geographic, ethnic, and aesthetic backgrounds. Respondent Finley was one of four artists that brought suit as a result of the amendment. Each of the four artists, including Finley, applied for funding prior to the adoption of the amendment. Each artist was recommended for approval by the advisory panel. However, in each case, the Commission recommended disapproval of funding and their applications were denied. Finley and the other Respondents brought suit against the NEA and John Frohnmayer, as chairperson of the NEA, arguing that the amendment at issue was void for vagueness and impermissible discriminated on the basis of viewpoint. The District Court granted summary judgment in favor of the respondents, and the Ninth Circuit affirmed, concluding that the amendment was facially invalid based on vagueness and viewpoint discrimination in violation of the First and Fifth Amendments.
Issue: Whether §954(d)(1) is void for vagueness as it provides insufficient Congressional guidance to the NEA chairperson in making funding determinations consistent with statutory intent? Whether §954(d)(1) impermissibly discriminates on the basis of viewpoint by directing the chairperson to deny funding based on perceived indecency?
Holding: The amendment is a facially valid exercise of Congressional judgment regarding the appropriate standard for reviewing applications for funding from the NEA. §954(d)(1) does not require rejection of controversial art and does not pose a substantial risk of suppressed expression, and is therefore consistent with First Amendment guarantees.
Reasoning: Justice O’Connor delivered the majority opinion, joined by Chief Justice Rehnquist and Justices Stevens, Kennedy, and Breyer. (Justice Ginsburg joined as to all but Part II-B). The majority began by noting the high burden that the Respondents must carry in order to prevail, namely that they were required to demonstrate a substantial risk of suppressed free expression. However, in Justice O’Connor’s view, the statutory language here merely directs consideration of certain factors and does not, under any plausible reading, prohibit speech. Furthermore, the majority noted the political compromise represented by adoption of the amendment at issue, whereby Congress defeated attempts to strip funding from the NEA and instead required greater consideration of certain factors in the review process. Despite the varied interpretations of “decency and respect" as urged by the parties, Justice O’Connor noted that the Court failed to perceive any realistic threat of speech suppression. The Court noted that language elsewhere in the statute already afforded the NEA broad authority in making funding determinations, while noting that the process was inherently subjective. Similarly, the Court noted that Congress has wide latitude in making spending determinations, and the addition of supplemental guidance to NEA review decisions was a permissible exercise of guidance in helping to allocate limited resources. Next, the Court found that lower courts erred in reading the language of §954(d)(1) as vague. When, as here, the language at issue relates to funding decisions rather than administrative or criminal prohibitions, a lower standard is appropriate for evaluating vagueness. While the majority noted that some artists may alter their behavior in attempting to conform to statutory guidelines and thus be better-positioned to received funding, there was little risk that opaque language would lead to impermissible prohibition of protected conduct. Justice O’Connor explained that the government here was acting as a patron of the arts rather than as a sovereign and the corresponding standard is accordingly less precise. When, as here, Congress distributes funds based on selective criteria, the statutory language is necessarily vague. To cast constitutional doubt on subject decision-making, however, would render all discretionary distribution of funding suspect on vagueness grounds, which the majority was unwilling to do.
Concurrence: Justice Scalia concurred in the judgment, joined by Justice Thomas. In his view, the Court gutted the language of the amendment at issue. Rather than going to great lengths to show neutrality, Justice Scalia preferred to interpret the amendment as a constitutional exercise of Congressional authority to discriminate in making funding determinations. As Justice Scalia explained, whether merely one factor or a dispositive prohibition, factors for funding approval necessarily require viewpoint discrimination. However, he explained that the question of government funding is quite separate from government prohibition. The Respondents are free to engage in as much speech as their desire, whether deemed but anyone or everyone to be indecent. The only question here is whether their rights are violated when Congress, and the NEA, refuses funding. In Justice Scalia’s view, the Respondents were not deprived of any right. Congress could have, consistent with the Constitution, banned all funding for displays deemed offensive. Instead, they choose to direct consideration of decency as part of the review process. In Justice Scalia’s view, that modest step was rendered a nullity by the majority’s analysis.
Dissent: Justice Souter dissented. He concluded that a finding of impermissible viewpoint discrimination in the exercise of governmental authority was unavoidable. Furthermore, he pointed out that citation to examples where the statute could be constitutional were insufficient to defeat an attack on facial validity. Justice Souter pointed out that the majority’s interpretation, whereby diversity meant diversity in the identity of those charged with evaluating applications, was misplaced given requirements elsewhere that already made such a duty clear. Reciting a long history of impermissible speech-regulation, Justice Souter concluded that the amendment at issue here would necessarily have a chilling effect on speech and was therefore invalid.
Conclusion: Congress may, consistent with the Constitution, provide standards for evaluating applications for funding that are necessarily vague. Furthermore, the standards at issue here do not constitute impermissible viewpoint discrimination as they do not prohibit any particular viewpoint, but instead only require consideration of further factors in making funding decisions.