100 F.3d 671 (9th Cir. 1996), 92-56028, Finley v. Nat'l Endowment for Arts

Docket Nº:92-56028, No. 92-56387, No. 92-55089
Citation:100 F.3d 671
Party Name:KAREN FINLEY; JOHN FLECK; HOLLY HUGHES; TIM MILLER; NATIONAL ASSOCIATION OF ARTISTS' ORGANIZATIONS, PLAINTIFFS-APPELLEES, v. NATIONAL ENDOWMENT FOR THE ARTS; JANE ALEXANDER,[*] IN HER OFFICIAL CAPACITY AS CHAIRPERSON OF THE NATIONAL ENDOWMENT FOR THE ARTS, DEFENDANTS-APPELLANTS. KAREN FINLEY; JOHN FLECK; HOLLY HUGHES; TIM MILLER; NATIONAL ASSOCIATI
Case Date:November 05, 1996
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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100 F.3d 671 (9th Cir. 1996)

KAREN FINLEY; JOHN FLECK; HOLLY HUGHES; TIM MILLER; NATIONAL ASSOCIATION OF ARTISTS' ORGANIZATIONS, PLAINTIFFS-APPELLEES,

v.

NATIONAL ENDOWMENT FOR THE ARTS; JANE ALEXANDER,[*] IN HER OFFICIAL CAPACITY AS CHAIRPERSON OF THE NATIONAL ENDOWMENT FOR THE ARTS, DEFENDANTS-APPELLANTS.

KAREN FINLEY; JOHN FLECK; HOLLY HUGHES; TIM MILLER; NATIONAL ASSOCIATION OF ARTISTS' ORGANIZATIONS, PLAINTIFFS-APPELLEES,

V.

NATIONAL ENDOWMENT FOR THE ARTS; JANE ALEXANDER, IN HER OFFICIAL CAPACITY AS CHAIRPERSON OF THE NATIONAL ENDOWMENT FOR THE ARTS, DEFENDANTS-APPELLANTS.

KAREN FINLEY; JOHN FLECK; HOLLY HUGHES; TIM MILLER; NATIONAL ASSOCIATION OF ARTISTS' ORGANIZATIONS, PLAINTIFFS-APPELLEES,

V.

NATIONAL ENDOWMENT FOR THE ARTS; JANE ALEXANDER, IN HER OFFICIAL CAPACITY AS CHAIRPERSON OF THE NATIONAL ENDOWMENT FOR THE ARTS, DEFENDANTS-APPELLANTS.

No. 92-56028, No. 92-56387, No. 92-55089

United States Court of Appeals, Ninth Circuit

November 5, 1996

Argued and Submitted February 3, 1994

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Alfred R. Mollin, United States Department of Justice, Washington, D.C., for the defendants-appellants.

David Cole, Center for Constitutional Rights, New York, New York, for the plaintiffs-appellees.

Gloria C. Phares and Victoria A. Kummer, Weil, Gotshal & Manges, New York, New York, for the amici curiae.

Len L. Munsil, Phoenix, Arizona, for the amicus curiae.

Robert M. O'Neil, Charlottesville, Virginia, for the amici curiae.

Ann H. Franke, Washington, D.C., for the amici curiae.

Elliot M. Mincberg and Sonia Bacchus, People for the American Way, Washington, D.C., for the amici curiae.

Barbara Hoffman, Schwartz, Weiss, Steckler & Hoffman, P.C., on the brief, for Amici Leaned Societies.

Appeals from the United States District Court for the Central District of California, A. Wallace Tashima, District Judge, Presiding. D.C. Nos. CV-90-5236-AWT, CV-90-5236-AWT and CV-90-5236-AWT.

Before: James R. Browning, Warren J. Ferguson, and Andrew J. Kleinfeld, Circuit Judges.

BROWNING, Circuit Judge:

Plaintiffs Karen Finley, John Fleck, Holly Hughes, and Tim Miller were refused fellowships under the defendant National Endowment for the Arts' ("NEA") solo performance artists program. They filed suit, alleging, among other things, that a provision of the NEA's governing statute identifying the standard for approval of funding applications violated the Fifth and First Amendments because it was impermissibly vague and imposed content-based restrictions on protected speech. The district court agreed, granted summary judgment to the plaintiffs, and certified its ruling for interlocutory appeal. Finley v. National Endowment for the Arts, 795 F.Supp. 1457 (C.D. Cal. 1992). We affirm, essentially for the reasons stated by the district court.1

Congress gave the NEA authority "to establish and carry out a program of . . . grants-in-aid . . . to . . . individuals of exceptional talent engaged in or concerned with the arts." 20 U.S.C. § 954(c). The Chairperson of the NEA has ultimate authority to approve or disapprove grants. 20 U.S.C. §§ 954(c), 955(f). Before making a decision on a particular grant application, however, the Chairperson must consult and receive the advice of the 26-member National Council on the Arts.2 20 U.S.C. § 955(f). The Chairperson may not approve any application disapproved by the National Council. Id. The Chairperson must also utilize advisory panels to review applications and make recommendations to the National Council. 20 U.S.C. § 959(c).

An advisory panel recommended approval of plaintiffs' applications; a majority of the Council recommended disapproval; the Chairperson denied the applications. The district court concluded the statutory standard under which the applications were Judged, which requires the NEA to "take into consideration general standards of decency

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and respect for the diverse beliefs and values of the American public," 20 U.S.C. § 954(d)(1), violated plaintiffs' due process and free speech rights.3

I.

The void-for-vagueness doctrine incorporates several important due process principles.4 It requires that a law give fair notice of its mandate. "Because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly." Grayned v. City of Rockford, 408 U.S. 104, 108, 33 L.Ed. 2d 222, 92 S.Ct. 2294 (1972). The void-for-vagueness doctrine also requires that a law provide explicit standards for those who are to apply it. "A vague law impermissibly delegates basic policy matters to policemen, Judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application." Id. at 108-09.

The twin dangers of a vague law - lack of notice and arbitrary or discriminatory application - may chill the exercise of important constitutional rights. "Where a vague statute 'abuts upon sensitive areas of basic First Amendment freedoms,' it 'operates to inhibit the exercise of [those] freedoms.'" Id. at 109 (citation omitted). Not surprisingly, therefore, courts apply a heightened vagueness standard to a law that could deter protected speech because of its uncertain meaning. N.A.A.C.P. v. Button, 371 U.S. 415, 432-33, 9 L.Ed. 2d 405, 83 S.Ct. 328 (1963) ("Standards of permissible statutory vagueness are strict in the area of free expression. . . . Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.").5

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A.

NEA's primary contention is that the vagueness of the "decency and respect" provision is not an issue. In its view, Congress did not compel NEA to add this element to the standard for judging grant applications, and the NEA elected not to add it. The standard therefore remains as it was before the amendment: the sole criteria for judging grant applications are "artistic excellence and artistic merit."

NEA reads the "decency and respect" amendment as requiring only that the Chairperson " take into consideration general standards of decency and respect for diverse beliefs and values" when promulgating regulations and procedures for judging grant applications. 20 U.S.C. § 954(d)(1) (emphasis added). According to NEA, the Chairperson did address Congress's concern that decency and respect for diverse beliefs and values be considered in funding decisions, and concluded no change in the regulations was necessary because the NEA's governing statute requires advisory panels with diversified membership to review applications and make recommendations to the National Council.6 The Chairperson reasoned that because advisory panels were composed of members chosen to reflect a wide range of backgrounds and points of view, the decisions of these panels as to the artistic excellence and merit of individual applications would necessarily reflect general standards of decency and show respect for the diverse beliefs and values of the American public.

This interpretation reads § 954(d) as if it had not been amended. Congress added the clause at issue - "taking into consideration general standards of decency and respect" - immediately after the clause specifying the criteria by which applications are to be Judged - "artistic excellence and artistic merit." Read together, these clauses instruct the Chairperson to ensure that standards of decency and respect for diverse values are considered when judging the artistic merit and excellence of an application.

Congress spoke in mandatory terms when it amended the criteria for judging grant applications: "the Chairperson shall ensure that . . . artistic excellence and artistic merit are the criteria by which applications are Judged, taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public." 20 U.S.C. § 954(d) (emphasis added). This language does not grant the Chairperson broad discretion in establishing criteria for judging grant applications, as NEA contends; it actually restricts the Chairperson's discretion by requiring him or her to Judge applications according to standards of "decency and respect."7

NEA's reading of § 954(d)(1) is also contrary to traditional canons of statutory construction. If § 954(d)(1) required nothing more than diverse advisory panels, the "decency and respect" provision would be redundant in view of § 959(c), also adopted as part of the 1990 amendments, which expressly requires that advisory panels reflect diversity.8 See Freytag v. Commissioner, 501 U.S. 868, 877, 115 L.Ed. 2d 764, 111 S.Ct. 2631 (1991) ("Our cases consistently have expressed 'a deep reluctance to interpret a statutory provision so as to render superfluous other provisions in the same enactment.'")

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(citation omitted).9

And turning to the legislative history, as we do to interpret an ambiguously worded statute, makes it clear that Congress intended to change the standard NEA applied in judging applications for funding, not simply to ask the NEA to consider the problem. NEA had been attacked for funding controversial artists and art works. Criticism had focused on a series of photographs by Robert Mapplethorpe objected to as homoerotic images, and on a photograph by Andres Serrano criticized as blasphemous. The "decency and respect" provision was enacted in direct response to this controversy and was specifically designed to prevent the funding of similar art works. Members of Congress noted that the "decency and respect" provision would...

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