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Scotus

Supreme Court rules decency may be considered in arts grants

June 25, 1998
Web posted at: 4:47 p.m. EDT (2047 GMT)

WASHINGTON (CNN) -- The federal government can require the National Endowment for the Arts to consider decency standards when deciding how to distribute its grant money, the U.S. Supreme Court ruled in a near-unanimous decision Thursday.

The ruling came on a Justice Department appeal of lower court rulings that a law requiring consideration of "general standards of decency and respect for the diverse beliefs and values of the American public" in granting public monies for the arts was unconstitutional.

"We conclude that (the law) is ... valid, as it neither inherently interferes with First Amendment rights nor violates constitutional vagueness principles," wrote Justice Sandra Day O'Connor for the majority.

Congress passed the law in 1990 following criticism, led by Republican Sen. Jesse Helms of North Carolina, about several projects funded by the NEA. Among those projects was a retrospective exhibit of Robert Mapplethorpe's homoerotic photography and Andres Serrano's "Piss Christ," a photograph of a crucifix immersed in urine.

Four artists whose works often deal with sexual themes -- Karen Finley, Holly Hughes, Tim Miller and John Fleck -- sued to have the law overturned. A federal judge in California and the 9th U.S. Circuit Court of Appeals found the law unconstitutional, saying it was too vague and violated free speech rights.

But O'Connor wrote that the law did not require the NEA to deny funding based on standards of decency, only admonishing the agency "merely to take 'decency and respect' into consideration."

Only Justice David Souter dissented from the 8-1 ruling. The law goes "substantially overboard and carries with it a significant power to chill artistic production and display," he wrote in his dissenting opinion.

Justices Antonin Scalia and Clarence Thomas agreed with the majority ruling, but in a separate opinion that said O'Connor's opinion "sustains the constitutionality of (the law) by gutting it."

O'Connor wrote that while the law does ask for "some imprecise considerations," if it were to be found unconstitutionally vague, "then so too are all government programs awarding scholarships and grants on the basis of subjective criteria such as excellence."

Conservatives in Congress have been trying to abolish the NEA for some time, most recently voting in a House subcommittee just last week to do so. The measure is not expected to win Congressional approval.

The arts agency has changed its funding procedures since the controversy, however, and now funds state and private arts groups rather than individual artists.

Reuters and The Associated Press contributed to this report.

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