Nat'l Endowment for the Arts v. Finley, 97371

CourtUnited States Supreme Court
Writing for the CourtO'CONNOR
Citation141 L.Ed.2d 500,118 S.Ct. 2168,524 U.S. 569
PartiesNATIONAL ENDOWMENT FOR THE ARTS, et al., Petitioners, v. Karen FINLEY, et al
Docket Number97371
Decision Date25 June 1998

524 U.S. 569
118 S.Ct. 2168
141 L.Ed.2d 500
NATIONAL ENDOWMENT FOR THE ARTS, et al., Petitioners,

v.

Karen FINLEY, et al.

No. 97-371.
Supreme Court of the United States
Argued March 31, 1998.
Decided June 25, 1998.
Syllabus*

The National Foundation on the Arts and Humanities Act vests the National Endowment for the Arts (NEA) with substantial discretion to award financial grants to support the arts; it identifies only the broadest funding priorities, including "artistic and cultural significance, giving emphasis to . . . creativity and cultural diversity,'' "professional excellence,'' and the encouragement of "public . . . education . . . and appreciation of the arts.'' See 20 U.S.C. §954(c)(1)-(10). Applications for NEA funding are initially reviewed by advisory panels of experts in the relevant artistic field. The panels report to the National Council on the Arts (Council), which, in turn, advises the NEA Chairperson. In 1989, controversial photographs that appeared in two NEA-funded exhibits prompted public outcry over the agency's grant-making procedures. Congress reacted to the controversy by inserting an amendment into the NEA's 1990 reauthorization bill. The amendment became §954(d)(1), which directs the Chairperson to ensure that "artistic excellence and artistic merit are the criteria by which [grant] applications are judged, taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public.'' The NEA has not promulgated an official interpretation of the provision, but the Council adopted a resolution to implement §954(d)(1) by ensuring that advisory panel members represent geographic, ethnic, and aesthetic diversity. The four individual respondents are performance artists who applied for NEA grants before §954(d)(1) was enacted. An advisory panel recommended approval of each of their projects, but the Council subsequently recommended disapproval, and funding was denied. They filed suit for restoration of the recommended grants or reconsideration of their applications, asserting First Amendment and statutory claims. When Congress enacted §954(d)(1), respondents, joined by the National Association of Artists' Organizations, amended their complaint to challenge the provision as void for vagueness and impermissibly viewpoint based. The District Court granted summary judgment in favor of respondents on their facial constitutional challenge to §954(d)(1). The Ninth Circuit affirmed, holding that §954(d)(1), on its face, impermissibly discriminates on the basis of viewpoint and is void for vagueness under the First and Fifth Amendments.

Held: Section 954(d)(1) is facially valid, as it neither inherently interferes with First Amendment rights nor violates constitutional vagueness principles. Pp. ____-____.

(a) Respondents confront a heavy burden in advancing their facial constitutional challenge, and they have not demonstrated a substantial risk that application of §954(d)(1) will lead to the suppression of free expression, see Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2917-2918, 37 L.Ed.2d 830. The premise of respondents' claim is that §954(d)(1) constrains the agency's ability to fund certain categories of artistic expression. The provision, however, simply adds "considerations'' to the grant-making process; it does not preclude awards to projects that might be deemed "indecent'' or "disrespectful,'' nor place conditions on grants, or even specify that those factors must be given any particular weight in reviewing an application. Regardless whether the NEA's view that the formulation of diverse advisory panels is sufficient to comply with Congress' command is in fact a reasonable reading, §954(d)(1)'s plain text clearly does not impose a categorical requirement. Furthermore, the political context surrounding the "decency and respect'' clause's adoption is inconsistent with respondents' assertion. The legislation was a bipartisan proposal introduced as a counterweight to amendments that would have eliminated the NEA's funding or substantially constrained its grant-making authority. Section 954(d)(1) merely admonishes the NEA to take "decency and respect'' into consideration, and the Court does not perceive a realistic danger that it will be utilized to preclude or punish the expression of particular views. The Court typically strikes down legislation as facially unconstitutional when the dangers are both more evident and more substantial. See, e.g., R.A.V. v. St. Paul, 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d 305. Given the varied interpretations of the "decency and respect'' criteria urged by the parties, and the provision's vague exhortation to "take them into consideration,'' it seems unlikely that §954(d)(1) will significantly compromise First Amendment values.

The NEA's enabling statute contemplates a number of indisputably constitutional applications for both the "decency'' and the "respect'' prong of §954(d)(1). It is well established that "decency'' is a permissible factor where "educational suitability'' motivates its consideration. See, e.g., Board of Ed., Island Trees Union Free School Dist. No. 26 v. Pico, 457 U.S. 853, 871, 102 S.Ct. 2799, 2810, 73 L.Ed.2d 435. And the statute already provides that the agency must take "cultural diversity'' into account. References to permissible applications would not alone be sufficient to sustain the statute, but neither is the Court persuaded that, in other applications, the language of §954(d)(1) itself will give rise to the suppression of protected expression. Any content-based considerations that may be taken into account are a consequence of the nature of arts funding; the NEA has limited resources to allocate among many "artistically excellent'' projects, and it does so on the basis of a wide variety of subjective criteria. Respondent's reliance on Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 837, 115 S.Ct. 2510, 2520-2521, 132 L.Ed.2d 700-in which the Court overturned a public university's objective decision denying funding to all student publications having religious editorial viewpoints-is therefore misplaced. The NEA's mandate is to make aesthetic judgments, and the inherently content-based "excellence'' threshold for NEA support sets it apart from the subsidy at issue in Rosenberger. Moreover, although the First Amendment applies in the subsidy context, Congress has wide latitude to set spending priorities. See, e.g., Regan v. Taxation with Representation of Wash., 461 U.S. 540, 549, 103 S.Ct. 1997, 2002-2003, 76 L.Ed.2d 129. Unless and until §954(d)(1) is applied in a manner that raises concern about the suppression of disfavored viewpoints, the Court will uphold it. Pp. ____-____.

(b) The lower courts also erred in invalidating §954(d)(1) as unconstitutionally vague. The First and Fifth Amendments protect speakers from arbitrary and discriminatory enforcement of vague standards. See NAACP v. Button, 371 U.S. 415, 432-433, 83 S.Ct. 328, 337-338, 9 L.Ed.2d 405. Section 954(d)(1)'s terms are undeniably opaque, and if they appeared in a criminal statute or regulatory scheme, they could raise substantial vagueness concerns. It is unlikely, however, that speakers will be compelled to steer too far clear of any forbidden area in the context of NEA grants. As a practical matter, artists may conform their speech to what they believe to be the NEA decisionmaking criteria in order to acquire funding. But when the Government is acting as patron rather than sovereign, the consequences of imprecision are not constitutionally severe. In the context of selective subsidies, it is not always feasible for Congress to legislate with clarity. Indeed, to accept respondents' vagueness argument would be to call into question the constitutionality of the many valuable Government programs awarding scholarships and grants on the basis of subjective criteria such as "excellence.'' Pp. ____-____.

100 F.3d 671, reversed and remanded.

O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and STEVENS, KENNEDY, and BREYER, JJ., joined, and in which GINSBURG, J., joined except for Part II-B. SCALIA, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined. SOUTER, J., filed a dissenting opinion.

Seth P. Waxman, Washington, DC, for petitioners.

David D. Cole, Brooklyn, NY, for respondents.

Justice O'CONNOR delivered the opinion of the Court.

The National Foundation on the Arts and Humanities Act, as amended in 1990, requires the Chairperson of the National Endowment for the Arts (NEA) to ensure that "artistic excellence and artistic merit are the criteria by which [grant] 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)(1). In this case, we review the Court of Appeals' determination that §954(d)(1), on its face, impermissibly discriminates on the basis of viewpoint and is void for vagueness under the First and Fifth Amendments. We conclude that §954(d)(1) is facially valid, as it neither inherently interferes with First Amendment rights nor violates constitutional vagueness principles.

I
A

With the establishment of the NEA in 1965, Congress embarked on a "broadly conceived national policy of support for the . . . arts in the United States,'' see §953(b), pledging federal funds 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.'' §951(7). The enabling statute vests the NEA with substantial discretion to award grants; it identifies only the broadest funding priorities, including "artistic and cultural significance, giving emphasis to American creativity and cultural diversity,'' "professional excellence,'' and the encouragement of "public knowledge,...

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398 practice notes
  • Marin v. Town of Se., No. 14–CV–2094 (KMK).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
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    ...and only as a last resort," wherein a plaintiff has a "heavy burden in advancing [her] claim." Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 580, 118 S.Ct. 2168, 141 L.Ed.2d 500 (1998) (internal quotation marks omitted). "To prevail [on a First Amendment challenge], [the plaintiff] ......
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    ...strong medicine' that has been employed by the Court sparingly and only as a last resort.'" Nat'l Endow. for the Arts v. Finley, 524 U.S. 569, 580, 118 S.Ct. 2168, 141 L.Ed.2d 580 (1998) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 29,08, 37 L.Ed.2d 83.0 For the most part, pl......
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    • June 8, 2021
    ...building his new home.999 F.3d 1358 II.A.The First Amendment protects art in its myriad forms. See Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 580–82, 118 S.Ct. 2168, 141 L.Ed.2d 500 (1998) (subjecting regulations governing the National Endowment for the Arts to First Amendment sc......
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391 cases
  • Marin v. Town of Se., No. 14–CV–2094 (KMK).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 30, 2015
    ...and only as a last resort," wherein a plaintiff has a "heavy burden in advancing [her] claim." Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 580, 118 S.Ct. 2168, 141 L.Ed.2d 500 (1998) (internal quotation marks omitted). "To prevail [on a First Amendment challenge], [the plaintiff] ......
  • Hodgkins v. Peterson, IP 01-1032-C T/K.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • November 6, 2001
    ...is not "casually employed." Los Angeles Police Dep't, 528 U.S. at 39, 120 S.Ct. 483; see also Nat'l Endowment of the Arts v. Finley, 524 U.S. 569, 580, 118 S.Ct. 2168, 141 L.Ed.2d 500 (1998) ("Facial invalidation `is, manifestly, strong medicine' that `has been employed by the Court sparing......
  • Olsen v. Gonzales, No. 05-5365-HO.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Oregon)
    • August 11, 2006
    ...strong medicine' that has been employed by the Court sparingly and only as a last resort.'" Nat'l Endow. for the Arts v. Finley, 524 U.S. 569, 580, 118 S.Ct. 2168, 141 L.Ed.2d 580 (1998) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 29,08, 37 L.Ed.2d 83.0 For the most part, pl......
  • Burns v. Town of Palm Beach, No. 18-14515
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • June 8, 2021
    ...building his new home.999 F.3d 1358 II.A.The First Amendment protects art in its myriad forms. See Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 580–82, 118 S.Ct. 2168, 141 L.Ed.2d 500 (1998) (subjecting regulations governing the National Endowment for the Arts to First Amendment sc......
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