Finley v. National Endowment for the Arts

• Decision Date: 09 June 1992
• Docket Number: No. CV 90-5236 AWT.,CV 90-5236 AWT.
• Court: U.S. District Court — Central District of California
• Parties: Karen FINLEY, John Fleck, Holly Hughes, Tim Miller and National Association of Artists' Organizations, Plaintiffs, v. NATIONAL ENDOWMENT FOR THE ARTS; and John E. Frohnmayer, in his official capacity as Chairperson National Endowment for the Arts, Defendants.

795 F. Supp. 1457

Karen FINLEY, John Fleck, Holly Hughes, Tim Miller and National Association of Artists' Organizations, Plaintiffs, v. NATIONAL ENDOWMENT FOR THE ARTS; and John E. Frohnmayer, in his official capacity as Chairperson National Endowment for the Arts, Defendants.

No. CV 90-5236 AWT.

United States District Court, C.D. California.

June 9, 1992.

COPYRIGHT MATERIAL OMITTED

David Cole, Center for Constitutional Rights; Mary Dorman, Nat. Campaign For Freedom of Expression; Marjorie Heins, American Civ. Liberties Union Foundation, New York City; Paul L. Hoffman, Carol A. Sobel, Jon W. Davidson, ACLU Foundation of Southern California, Los Angeles, Cal.; Nan D. Hunter, American Civ. Liberties Union Foundation, Brooklyn, N.Y.; and Ellen Yaroshefsky, Cardozo Law Clinic, New York City, for plaintiffs.

Stuart M. Gerson, Asst. Atty. Gen., Theodore C. Hirt, Mark W. Batten, Dept. of Justice, Washington, D.C., and Lourdes G. Baird, U.S. Atty., and Stan Blumenfeld, Asst. U.S. Atty., Los Angeles, Cal., for defendants.

Gloria C. Phares, Sabrina E. Silverberg, Weil, Gotshal & Manges, New York City, and Ronald D. Reynolds, and Rita L. Tuzon, Hill Wynne Troop & Meisinger, Los Angeles, Cal., for amici curiae Claes Oldenburg, Hans Haacke, Coosje van Bruggen, Nancy Spero, Leon Golub, Andres Serrano, Robert Colescott, Luis Cruz Azaceta, Barbara Kruger, David Hammons, Adrian Piper, Susan Rothenberg and Bruce Nauman.

Leon Friedman and Edward De Grazia, Cardozo Law School, New York City, for amicus curiae PEN American Center.

Barbara Hoffman, New York City and Stephen F. Rohde, Los Angeles, Cal., for amici curiae PEN American Center and College Art Ass'n.

MEMORANDUM OPINION

TASHIMA, District Judge.

Plaintiffs are four individual performance artists ("individual plaintiffs") and the National Association of Artists' Organizations ("NAAO"). Individual plaintiffs allege that defendants the National Endowment for the Arts ("NEA") and John E. Frohnmayer ("Frohnmayer"),¹ NEA Chairperson, violated their constitutional and statutory rights by improperly denying their applications for NEA grants and by releasing to the public information from their application files. They seek declaratory and injunctive relief on their constitutional and statutory funding claims, and damages on the Privacy Act claim. In addition, all plaintiffs seek a declaration that the so-called "decency clause" of 20 U.S.C. § 954(d), enacted several months after individual plaintiffs' applications were denied, is void for vagueness and violates the First Amendment on its face.

Before the court are two motions. The first is defendants' motion for judgment on the pleadings. Defendants contend that: (1) the NEA's funding decisions are unreviewable because they are committed to agency discretion by law; (2) venue is improper as to the Privacy Act claim; and (3) plaintiffs lack standing to challenge the facial validity of the "decency clause" because they cannot establish the necessary injury.

Plaintiffs, in turn, have moved for summary judgment on their facial challenge to the "decency clause."

I. BACKGROUND

A. Statutory framework

The NEA was created by Congress in 1965 as part of the National Foundation on the Arts and the Humanities (the "Foundation"). In establishing the Foundation, Congress found that "it is necessary and appropriate for the federal government 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." 20 U.S.C. § 952(5).² It was the intent of Congress to encourage "free inquiry and expression," and to insure that "conformity for its own sake is not to be encouraged" and that "no undue preference should be given to any particular style or school of thought or expression." 111 Cong.Rec. 13,108 (1965).

One of three components of the Foundation, the NEA is authorized to administer 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 NEA acts through its Chairperson and a 26-member National Council on the Arts (the "Council"), all of whom are appointed by the President, by and with the advice and consent of the Senate. 20 U.S.C. § 954(b)(1) & § 955(b). The Chairperson is the ultimate decision maker; however, the Chairperson is prohibited from approving or disapproving any grant application until he or she has received the recommendation of the Council on such application.³ 20 U.S.C. § 955(f). The Council, in turn, is required to meet at the call of the Chairperson, and 14 members of the Council constitute a quorum. 20 U.S.C. § 955(d). The Chairperson is also authorized to utilize panels of experts to review funding applications. 20 U.S.C. § 959(a)(4).⁴

On November 5, 1990, approximately four months after individual plaintiffs' applications were denied, in the 1990 Amendments, Congress amended the NEA's governing statute in several respects. Among the changes was the addition of a provision requiring that "general standards of decency and respect for the diverse beliefs and values of the American public" be taken into consideration in making funding determinations. 1990 Amendments, Pub.L. No. 101-512, § 103(b), 104 Stat. 1963, codified at 20 U.S.C. § 954(d).

B. Political context of the denials

At least since 1989 and continuing through to the present, the NEA has been the target of congressional critics and private interest groups for funding works, inter alia, that express women's anger over male dominance in the realm of sexuality or which endorse equal legitimacy for homosexual and heterosexual practices.⁵ For example, in the Spring of 1989, congressional critics assailed the NEA for funding two controversial projects: a photography exhibit by Robert Mapplethorpe, which included homoerotic images, and an exhibit by Andres Serrano⁶ entitled "Piss Christ," which was criticized as sacrilegious. E.g., 135 Cong.Rec. S5594 (daily ed. May 18, 1989) (statement of Sen. D'Amato); 135 Cong.Rec. S5805 (daily ed. May 31, 1989) (statement of Sen. Gorton). These two exhibits were frequently cited by members of Congress in debates during the Summer of 1989 over budget allocations for the NEA. E.g., 135 Cong.Rec. H3637, H3640 (daily ed. Jul. 12, 1989) (statements of Reps. Rohrabacher and Dannemeyer).

These funding debates were followed by a series of demands by certain members of Congress for information on NEA-funded artists whose work addressed political and sexual issues. In one instance, a senator requested that the General Accounting Office investigate apparent violations of § 304 of the FY 1990 NEA appropriations bill.⁷ The senator listed among such "apparent violations" three literature fellowships awarded to lesbian writers who address issues of sexuality in their work; two art exhibits, one of which incorporated images depicting homosexuality and the other of which included depictions of genital organs; and appearances by plaintiff Finley at two NEA-funded theaters.⁸

In addition, private special interest groups ran advertisements and circulated flyers condemning NEA funding of sexually-related works and in one case called for defunding of the NEA. In response to criticism by the American Family Association of one art exhibit, Frohnmayer wrote in April 1990 that its images "were disgusting and offensive to me, and undoubtedly to a large majority of the population. I would hope that with the procedures I am implementing at the arts endowment, images such as these would not again be funded."

C. Denial of plaintiffs' applications and violations of the Privacy Act

In the midst of this political maelstrom, individual plaintiffs each applied for funding under the Performance Artists Program. These applications were among the 90 applications reviewed by the Performance Artists Program Peer Review Panel (the "Panel"). The Panel unanimously recommended that the individual plaintiffs' applications be funded, along with 14 others in that category.⁹

In early May 1990, Frohnmayer asked the Panel to reconsider three of its recommendations, those for plaintiffs Fleck, Hughes and Miller. He stated that reconsideration of Finley's application was unnecessary because two of his close friends had attended a Finley show and had reported to him that it was not obscene. He arranged for an extraordinary Panel meeting by teleconference, in which he personally participated. After reconsidering the three grants, the Panel again unanimously recommended them for funding.

Shortly before the Council met to review recommended NEA grants and fellowships, a syndicated column published in Washington, D.C., reported that plaintiff Finley had been recommended to receive a grant and criticized the content of her work. The article contained a quotation from Finley's funding application, which the NEA admittedly released to the press. The column also stated that Frohnmayer had been "advised" by "friends" of the NEA to veto several grants, including Finley's, to "ease President Bush's deepening troubles with conservatives on his suspect cultural agenda."

Although the Council convened in May and acted on other categories of recommended grants, it deferred consideration of the Performance Artists Program fellowships until its August meeting, pending receipt of further information. In June 1990, Frohnmayer polled members of the Council by individual telephone calls regarding the Performance Artists Program fellowships. On June 28, 1990, the NEA advised individual plaintiffs that their applications had been denied.

Subsequent to these denials, a number of newspaper articles published references to or direct quotations from plaintiffs' NEA application files. A number of these articles cite the NEA as the source of this information. None of the individual plaintiffs consented to any of these disclosures.

D. Plaintiffs' claims

Following notification that their applications...