National Endowment for the Arts v. Finley

The National Foundation on the Arts and the Humanities Act of 1965 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 esthetic 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, now joined by the N ational 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).

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