OCTOBER TERM, 1997
Syllabus
NATIONAL ENDOWMENT FOR THE ARTS ET AL.
v. FINLEY ET
AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No.97-371. Argued March 31, 1998-Decided June 25,1998
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).
570
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. 580-590.
(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. 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 of 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. 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" prongs 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. 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,
571
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-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 esthetic 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.
Unless § 954(d)(1) is applied in a manner that raises concern about
the suppression of disfavored viewpoints, the Court will uphold it.
Pp. 580-588.
(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.
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. 588-590.
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 all but Part II-B of which GINSBURG, J., joined. SCALIA, J.,
filed an opinion concurring in the judgment, in which THOMAS, J.,
joined,
post, p. 590. SOUTER, J., filed a dissenting
opinion,
post, p. 600.
572
Solicitor General Waxman argued the cause for petitioners. With
him on the briefs were Assistant Attorney General Hunger, Deputy
Solicitor General Kneedler, Deputy Assistant Attorney General
Preston, Jeffrey P. Minear, William Kanter, Alfred Mollin, and
Karen Christensen.
David Cole argued the cause for respondents. With him on the
briefs were Ellen Yaroshefsky, Marjorie Heins, Steven R. Shapiro,
Mary D. Dorman, and Carol Sobel. *
JUSTICE O'CONNOR delivered the opinion of the Court.t The
National Foundation on the Arts and the Humanities Act of 1965, as
amended in 1990, 104 Stat. 1963, 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 Ap-
*Briefs of
amici curiae urging reversal were filed for
the American Center for Law and Justice by
Jay A. Sekulow, Colby
M. May, James M. Henderson, Sr., and
John P. Tuskey; for
Liberty Counsel by
Mathew D. Staver and
Frederick H.
Nelson; and for the National Family Legal Foundation by
Len
L. Munsil.
Briefs of
amici curiae urging affirmance were filed for
the American Association of University Professors et al. by
John
Joshua Wheeler, Jonathan R. Alger, and
Jeffrey P.
Cunard; for Americans United for Separation of Church and State
by
Steven K. Green, Julie A. Segal, and
Edward
Tabash; for the Family Research Institute of Wisconsin by
Daniel Kelly; for the New School for Social Research et al.
by
Floyd Abrams, Burt Neuborne, Kathleen M. Sullivan, Jonathan
Sherman, Elai Katz, and
Deborah Goldberg; for the
Rockefeller Foundation by
Donald B. Verrilli, Jr.; for
Twenty-Six Arts, Broadcast, Library, Museum and Publishing
Amici
Curiae by
James F.
Fitzpatrick, James A. Dobkin,
Matthew T. Heartney, Mark R. Drozdowski, Elliot M. Mincberg,
and
Lawrence S.
Ottinger; for Volunteer Lawyers for
the Arts et al. by
Marci A. Hamilton; and for Claes
Oldenburg et al. by
Gloria C.
Phares.
Paul J.
M cGeady and
Robert W Peters filed
a brief for Morality in Media, Inc., as
amicus curiae.
tJUSTICE GINSBURG joins all but Part II-B of this opinion.
573
peals' 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, education,
understanding, and appreciation of the arts." See §§
954(c)(1)-(10).
Applications for NEA funding are initially reviewed by advisory
panels composed of experts in the relevant field of the arts. Under
the 1990 amendments to the enabling statute, those panels must
reflect "diverse artistic and cultural points of view" and include
"wide geographic, ethnic, and minority representation," as well as
"lay individuals who are knowledgeable about the arts." §§
959(c)(1)-(2). The panels report to the 26-member National Council
on the Arts (Council), which, in turn, advises the NEA Chairperson.
The Chairperson has the ultimate authority to award grants but may
not approve an application as to which the Council has made a
negative recommendation. § 955(f).
574
Since 1965, the NEA has distributed over $3 billion in grants to
individuals and organizations, funding that has served as a
catalyst for increased state, corporate, and foundation support for
the arts. Congress has recently restricted the availability of
federal funding for individual artists, confining grants primarily
to qualifying organizations and state arts agencies, and
constraining subgranting. See Department of the Interior and
Related Agencies Appropriations Act, 1998, § 329, 111 Stat. 1600.
By far the largest portion of the grants distributed in fiscal year
1998 were awarded directly to state arts agencies. In the remaining
categories, the most substantial grants were allocated to symphony
orchestras, fine arts museums, dance theater foundations, and opera
associations. See National Endowment for the Arts, FY 1998 Grants,
Creation & Presentation 5-8, 21,20,27.
Throughout the NEA's history, only a handful of the agency's
roughly 100,000 awards have generated formal complaints about
misapplied funds or abuse of the public's trust. Two provocative
works, however, prompted public controversy in 1989 and led to
congressional revaluation of the NEA's funding priorities and
efforts to increase oversight of its grant-making procedures. The
Institute of Contemporary Art at the University of Pennsylvania had
used $30,000 of a visual arts grant it received from the NEA to
fund a 1989 retrospective of photographer Robert Mapplethorpe's
work. The exhibit, entitled The Perfect Moment, included homoerotic
photographs that several Members of Congress condemned as
pornographic. See,
e. g., 135 Congo Rec. 22372 (1989).
Members also denounced artist Andres Serrano's work Piss Christ, a
photograph of a crucifix immersed in urine. See,
e. g., id.,
at 9789. Serrano had been awarded a $15,000 grant from the
Southeast Center for Contemporary Art, an organization that
received NEA support.
When considering the NEA's appropriations for fiscal year 1990,
Congress reacted to the controversy surrounding the
575
Mapplethorpe and Serrano photographs by eliminating $45,000 from
the agency's budget, the precise amount contributed to the two
exhibits by NEA grant recipients. Congress also enacted an
amendment providing that no NEA funds "may be used to promote,
disseminate, or produce materials which in the judgment of [the
NEA] may be considered obscene, including but not limited to,
depictions of sadomasochism, homoeroticism, the sexual exploitation
of children, or individuals engaged in sex acts and which, when
taken as a whole, do not have serious literary, artistic,
political, or scientific value." Department of the Interior and
Related Agencies Appropriations Act, 1990, 103 Stat. 738-742. The
NEA implemented Congress' mandate by instituting a requirement that
all grantees certify in writing that they would not utilize federal
funding to engage in projects inconsistent with the criteria in the
1990 appropriations bill. That certification requirement was
subsequently invalidated as unconstitutionally vague by a Federal
District Court, see
Bella Lewitzky Dance Foundation v.
Frohnmayer, 754 F. Supp. 774 (CD Cal. 1991), and the NEA did
not appeal the decision.
In the 1990 appropriations bill, Congress also agreed to create
an Independent Commission of constitutional law scholars to review
the NEA's grant-making procedures and assess the possibility of
more focused standards for public arts funding. The Commission's
report, issued in September 1990, concluded that there is no
constitutional obligation to provide arts funding, but also
recommended that the NEA rescind the certification requirement and
cautioned against legislation setting forth any content
restrictions. Instead, the Commission suggested procedural changes
to enhance the role of advisory panels and a statutory
reaffirmation of "the high place the nation accords to the
fostering of mutual respect for the disparate beliefs and values
among us." See Independent Commission, Report to Congress on the N
a-
576
tional Endowment for the Arts 83-91 (Sept. 1990), 3 Record, Doc.
No. 51, Exh. K (hereinafter Report to Congress).
Informed by the Commission's recommendations, and cognizant of
pending judicial challenges to the funding limitations in the 1990
appropriations bill, Congress debated several proposals to reform
the NEA's grant-making process when it considered the agency's
reauthorization in the fall of 1990. The House rejected the Crane
Amendment, which would have virtually eliminated the NEA, see 136
Congo Rec. 28656-28657 (1990), and the Rohrabacher Amendment, which
would have introduced a prohibition on awarding any grants that
could be used to "promote, distribute, disseminate, or produce
matter that has the purpose or effect of denigrating the beliefs,
tenets, or objects of a particular religion" or "of denigrating an
individual, or group of individuals, on the basis of race, sex,
handicap, or national origin," id., at 28657-28664. Ultimately,
Congress adopted the Williams/ Coleman Amendment, a bipartisan
compromise between Members opposing any funding restrictions and
those favoring some guidance to the agency. In relevant part, the
Amendment became § 954(d)(1), which directs the Chairperson, in
establishing procedures to judge the artistic merit of grant
applications, to "tak[e] into consideration general standards of
decency and respect for the diverse beliefs and values of the
American public." *
*Title 20 U. S. C. § 954(d) provides in full that:
"No payment shall be made under this section except upon
application therefor which is submitted to the National Endowment
for the Arts in accordance with regulations issued and procedures
established by the Chairperson. In establishing such regulations
and procedures, the Chairperson shall ensure that-
"(1) 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; and "(2) applications are consistent with
the purposes of this section. Such regulations and procedures shall
clearly indicate that obscenity is without artistic merit, is not
protected speech, and shall not be funded."
577
The NEA has not promulgated any official interpretation of the
provision, but in December 1990, the Council unanimously adopted a
resolution to implement § 954(d)(1) merely by ensuring that the
members of the advisory panels that conduct the initial review of
grant applications represent geographic, ethnic, and esthetic
diversity. See Minutes of the Dec. 1990 Retreat of the National
Council on the Arts, reprinted in App. 12-13; Transcript of the
Dec. 1990 Retreat of the National Council on the Arts, reprinted in
id., at 3233. John Frohnmayer, then Chairperson of the NEA, also
declared that he would "count on [the] procedures" ensuring diverse
membership on the peer review panels to fulfill Congress' mandate.
See id., at 40.
B
The four individual respondents in this case, Karen Finley, John
Fleck, Holly Hughes, and Tim Miller, are performance artists who
applied for NEA grants before § 954(d)(1) was enacted. An advisory
panel recommended approval of respondents' projects, both initially
and after receiving Frohnmayer's request to reconsider three of the
applications. A majority of the Council subsequently recommended
disapproval, and in June 1990, the NEA informed respondents that
they had been denied funding. Respondents filed suit, alleging that
the NEA had violated their First Amendment rights by rejecting the
applications on political grounds, had failed to follow statutory
procedures by basing the denial on criteria other than those set
forth in the NEA's enabling statute, and had breached the
confidentiality of their grant applications through the release of
quotations to the press, in violation of the Privacy Act of 1974, 5
U. S. C. § 552(a). Respondents sought restoration of the
recommended grants or reconsideration of their applications, as
well as damages for the alleged Privacy Act violations. When
Congress enacted § 954(d)(1), respondents, now joined by the
National Association of Artists' Organizations (NAAO), amended
578
their complaint to challenge the provision as void for vagueness
and impermissibly viewpoint based. First Amended Complaint ~ 1.
The District Court denied the NEA's motion for judgment on the
pleadings, 795 F. Supp. 1457, 1463-1468 (CD Cal. 1992), and, after
discovery, the NEA agreed to settle the individual respondents'
statutory and as-applied constitutional claims by paying the
artists the amount of the vetoed grants, damages, and attorney's
fees. See Stipulation and Settlement Agreement, 6 Record, Doc. No.
128, pp. 3-5.
The District Court then granted summary judgment in favor of
respondents on their facial constitutional challenge to § 954(d)(1)
and enjoined enforcement of the provision. See 795 F. Supp., at
1476. The court rejected the argument that the NEA could comply
with § 954(d)(1) by structuring the grant selection process to
provide for diverse advisory panels.
Id., at 1471. The
provision, the court stated, "fails adequately to notify applicants
of what is required of them or to circumscribe NEA discretion."
Id., at 1472. Reasoning that "the very nature of our
pluralistic society is that there are an infinite number of values
and beliefs, and correlatively, there may be no national 'general
standards of decency,'" the court concluded that § 954(d)(1)
"cannot be given effect consistent with the Fifth Amendment's due
process requirement."
Id., at 1471-1472 (citing
Grayned v.
City of Rockford, 408 U. S. 104, 108-109
(1972)). Drawing an analogy between arts funding and public
universities, the court further ruled that the First Amendment
constrains the NEA's grant-making process, and that because §
954(d)(1) "clearly reaches a substantial amount of protected
speech," it is impermissibly overbroad on its face. 795 F. Supp.,
at 1476. The Government did not seek a stay of the District Court's
injunction, and consequently the NEA has not applied § 954(d)(1)
since June 1992.
A divided panel of the Court of Appeals affirmed the District
Court's ruling.
100 F.3d
671 (CA9 1996). The major-
579
ity agreed with the District Court that the NEA was compelled by
the adoption of § 954(d)(1) to alter its grant-making procedures to
ensure that applications are judged according to the "decency and
respect" criteria. The Chairperson, the court reasoned, "has no
discretion to ignore this obligation, enforce only part of it, or
give it a cramped construction."
I d., at 680. Concluding
that the "decency and respect" criteria are not "susceptible to
objective definition," the court held that § 954(d)(1) "gives rise
to the danger of arbitrary and discriminatory application" and is
void for vagueness under the First and Fifth Amendments.
I
d., at 680-681. In the alternative, the court ruled that §
954(d)(1) violates the First Amendment's prohibition on
viewpoint-based restrictions on protected speech. Government
funding of the arts, the court explained, is both a "traditional
sphere of free expression,"
Rust v.
Sullivan,
500 U. S. 173,
200 (1991), and an area in which the Government has stated its
intention to "encourage a diversity of views from private
speakers,"
Rosenberger v.
Rector and Visitors of Univ. of
Va., 515 U. S.
819, 834 (1995). 100 F. 3d, at 681-682. Accordingly, finding
that § 954(d)(1) "has a speech-based restriction as its sole
rationale and operative principle,"
Rosenberger, supra, at
834, and noting the NEA's failure to articulate a compelling
interest for the provision, the court declared it facially invalid.
100 F. 3d, at 683.
The dissent asserted that the First Amendment protects artists'
rights to express themselves as indecently and disrespectfully as
they like, but does not compel the Government to fund that speech.
Id., at 684 (opinion of Kleinfeld, J.). The challenged
provision, the dissent contended, did not prohibit the NEA from
funding indecent or offensive art, but merely required the agency
to consider the "decency and respect" criteria in the grant
selection process.
Id., at 689690. Moreover, according to
the dissent's reasoning, the vagueness principles applicable to the
direct regulation of speech have no bearing on the selective award
of prizes, and
580
the Government may draw distinctions based on content and
viewpoint in making its funding decisions.
Id., at 684-688.
Three judges dissented from the denial of rehearing en bane,
maintaining that the panel's decision gave the statute an
"implausible construction," applied the "'void for vagueness'
doctrine where it does not belong," and extended "First Amendment
principles to a situation that the First Amendment doesn't cover."
112 F.3d
1015, 1016-1017 (CA9 1997).
We granted certiorari, 522 U. S. 991 (1997), and now reverse the
judgment of the Court of Appeals.
II A
Respondents raise a facial constitutional challenge to §
954(d)(1), and consequently they confront "a heavy burden" in
advancing their claim.
Rust, supra, at 183. Facial
invalidation "is, manifestly, strong medicine" that "has been
employed by the Court sparingly and only as a last resort."
Broadrick v.
Oklahoma, 413 U. S. 601, 613
(1973); see also
FW/PBS, Inc. v.
Dallas, 493 U. S. 215, 223 (1990)
(noting that "facial challenges to legislation are generally
disfavored"). To prevail, respondents must demonstrate a
substantial risk that application of the provision will lead to the
suppression of speech. See
Broadrick, supra, at 615.
Respondents argue that the provision is a paradigmatic example
of viewpoint discrimination because it rejects any artistic speech
that either fails to respect mainstream values or offends standards
of decency. The premise of respondents' claim is that § 954(d)(1)
constrains the agency's ability to fund certain categories of
artistic expression. The NEA, however, reads the provision as
merely hortatory, and contends that it stops well short of an
absolute restriction. Section 954(d)(1) 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
581
any particular weight in reviewing an application. Indeed, the
agency asserts that it has adequately implemented § 954(d)(1)
merely by ensuring the representation of various backgrounds and
points of view on the advisory panels that analyze grant
applications. See Declaration of Randolph McAusland, Deputy
Chairman for Programs at the NEA, reprinted in App. 79 (stating
that the NEA implements the provision "by ensuring that the peer
review panels represent a variety of geographical areas, aesthetic
views, professions, areas of expertise, races and ethnic groups,
and gender, and include a lay person"). We do not decide 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 of the statute. It is clear, however, that the text of §
954(d)(1) imposes no categorical requirement. The advisory language
stands in sharp contrast to congressional efforts to prohibit the
funding of certain classes of speech. When Congress has in fact
intended to affirmatively constrain the NEA's grant-making
authority, it has done so in no uncertain terms. See § 954(d)(2)
("[O]bscenity is without artistic merit, is not protected speech,
and shall not be funded").
Furthermore, like the plain language of § 954(d), the political
context surrounding the adoption of the "decency and respect"
clause is inconsistent with respondents' assertion that the
provision compels the NEA to deny funding on the basis of viewpoint
discriminatory criteria. The legislation was a bipartisan proposal
introduced as a counterweight to amendments aimed at eliminating
the NEA's funding or substantially constraining its grant-making
authority. See,
e. g.,
136 Congo Rec. 28626, 28632,
28634 (1990). The Independent Commission had cautioned Congress
against the adoption of distinct viewpoint-based standards for
funding, and the Commission's report suggests that "additional
criteria for selection, if any, should be incorporated as part of
the selection process (perhaps as part of a definition of 'artistic
excel-
582
lence'), rather than isolated and treated as exogenous
considerations." Report to Congress 89. In keeping with that
recommendation, the criteria in § 954(d)(1) inform the assessment
of artistic merit, but Congress declined to disallow any particular
viewpoints. As the sponsors of § 954(d)(1) noted in urging
rejection of the Rohrabacher Amendment: "[I]f we start down that
road of prohibiting categories of expression, categories which are
indeed constitutionally protected speech, where do we end? Where
one Member's aversions end, others with different sensibilities and
with different values begin." 136 Congo Rec. 28624 (statement of
Rep. Coleman); see also id., at 28663 (statement of Rep. Williams)
(arguing that the Rohrabacher Amendment would prevent the funding
of Jasper Johns' flag series, The Merchant of Venice, Chorus Line,
Birth of a Nation, and the Grapes of Wrath). In contrast, before
the vote on § 954(d)(1), one of its sponsors stated: "If we have
done one important thing in this amendment, it is this. We have
maintained the integrity of freedom of expression in the United
States."
Id., at 28674.
That § 954(d)(1) admonishes the NEA merely to take "decency and
respect" into consideration and that the legislation was aimed at
reforming procedures rather than precluding speech undercut
respondents' argument that the provision inevitably will be
utilized as a tool for invidious viewpoint discrimination. In cases
where we have struck down legislation as facially unconstitutional,
the dangers were both more evident and more substantial. In
R.
A. v: v.
St. Paul, 505 U. S. 377 (1992), for
example, we invalidated on its face a municipal ordinance that
defined as a criminal offense the placement of a symbol on public
or private property" 'which one knows or has reasonable grounds to
know arouses anger, alarm or resentment in others on the basis of
race, color, creed, religion or gender.'" See id., at 380. That
provision set forth a clear penalty, proscribed views on particular
"disfavored subjects," id., at 391, and suppressed "distinctive
idea[s], conveyed by a distinctive message," id., at 393.
583
In contrast, the "decency and respect" criteria do not silence
speakers by expressly "threaten[ing] censorship of ideas." See
ibid. Thus, we do not perceive a realistic danger that § 954(d)(1)
will compromise First Amendment values. As respondents' own
arguments demonstrate, the considerations that the provision
introduces, by their nature, do not engender the kind of directed
viewpoint discrimination that would prompt this Court to invalidate
a statute on its face. Respondents assert, for example, that "[o]ne
would be hard-pressed to find two people in the United States who
could agree on what the 'diverse beliefs and values of the American
public' are, much less on whether a particular work of art
'respects' them"; and they claim that" '[d]ecency' is likely to
mean something very different to a septegenarian in Tuscaloosa and
a teenager in Las Vegas." Brief for Respondents 41. The NEA
likewise views the considerations enumerated in § 954(d)(1) as
susceptible to multiple interpretations. See Department of the
Interior and Related Agencies Appropriations for 1992, Hearing
before the Subcommittee on Interior and Related Agencies of the
House Committee on Appropriations, 102d Cong., 1st Sess., 234
(1991) (testimony of John Frohnmayer) ("[N]o one individual is wise
enough to be able to consider general standards of decency and the
diverse values and beliefs of the American people all by him or
herself. These are group decisions"). Accordingly, the provision
does not introduce considerations that, in practice, would
effectively preclude or punish the expression of particular views.
Indeed, one could hardly anticipate how "decency" or "respect"
would bear on grant applications in categories such as funding for
symphony orchestras.
Respondents' claim that the provision is facially
unconstitutional may be reduced to the argument that the criteria
in § 954(d)(1) are sufficiently subjective that the agency could
utilize them to engage in viewpoint discrimination. Given the
varied interpretations of the criteria and the vague ex-
584
hortation to "take them into consideration," it seems unlikely
that this provision will introduce any greater element of
selectivity than the determination of "artistic excellence" itself.
And we are reluctant, in any event, to invalidate legislation "on
the basis of its hypothetical application to situations not before
the Court."
FCC v.
Pacifica Foundation, 438 U. S. 726, 743
(1978).
The NEA's enabling statute contemplates a number of indisputably
constitutional applications for both the "decency" prong of §
954(d)(1) and its reference to "respect for the diverse beliefs and
values of the American public." Educational programs are central to
the NEA's mission. See § 951(9) ("Americans should receive in
school, background and preparation in the arts and humanities"); §
954(c)(5) (listing "projects and productions that will encourage
public knowledge, education, understanding, and appreciation of the
arts" among the NEA's funding priorities); National Endowment for
the Arts, FY 1999 Application Guidelines 18-19 (describing
"Education & Access" category); Brief for Twentysix Arts,
Broadcast, Library, Museum and Publishing
Amici Curiae 5, n.
2 (citing NEA Strategic Plan FY 1997-FY 2002, which identifies
children's festivals and museums, art education, at-risk youth
projects, and artists in schools as examples of the NEA's
activities). And it is well established that "decency" is a
permissible factor where "educational suitability" motivates its
consideration.
Board of Ed., Island Trees Union Free School
Dist. No. 26 v.
Pico, 457 U. S. 853, 871
(1982); see also
Bethel School Dist. No . .1,03 v.
Fraser, 478 U. S. 675, 683 (1986) ("Surely it is a highly
appropriate function of public school education to prohibit the use
of vulgar and offensive terms in public discourse").
Permissible applications of the mandate to consider "respect for
the diverse beliefs and values of the American public" are also
apparent. In setting forth the purposes of the NEA, Congress
explained that "[i]t is vital to a democracy to honor and preserve
its multicultural artistic heritage."
585
§ 951(10). The agency expressly takes diversity into account,
giving special consideration to "projects and productions ... that
reach, or reflect the culture of, a minority, inner city, rural, or
tribal community," § 954(c)(4), as well as projects that generally
emphasize "cultural diversity," § 954(c)(1). Respondents do not
contend that the criteria in § 954(d)(1) are impermissibly applied
when they may be justified, as the statute contemplates, with
respect to a project's intended audience.
We recognize, of course, that reference to these permissible
applications would not alone be sufficient to sustain the statute
against respondents' First Amendment challenge. But neither are we
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 in
the grant-making process are a consequence of the nature of arts
funding. The NEA has limited resources, and it must deny the
majority of the grant applications that it receives, including many
that propose "artistically excellent" projects. The agency may
decide to fund particular projects for a wide variety of reasons,
"such as the technical proficiency of the artist, the creativity of
the work, the anticipated public interest in or appreciation of the
work, the work's contemporary relevance, its educational value, its
suitability for or appeal to special audiences (such as children or
the disabled), its service to a rural or isolated community, or
even simply that the work could increase public knowledge of an art
form." Brief for Petitioners 32. As the dissent below noted, it
would be "impossible to have a highly selective grant program
without denying money to a large amount of constitutionally
protected expression." 100 F. 3d, at 685 (opinion of Kleinfeld,
J.). The "very assumption" of the NEA is that grants will be
awarded according to the "artistic worth of competing applicants,"
and absolute neutrality is simply "inconceivable." Advo-
586
cates for the Arts v.
Thomson, 532 F.2d
792, 795-796
(CA1), cert. denied, 429 U. S. 894
(1976).
Respondents' reliance on our decision in
Rosenberger
v.
Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995), is
therefore misplaced. In
Rosenberger, a public university
declined to authorize disbursements from its Student Activities
Fund to finance the printing of a Christian student newspaper. We
held that by subsidizing the Student Activities Fund, the
University had created a limited public forum, from which it
impermissibly excluded all publications with religious editorial
viewpoints.
Id., at 837. Although the scarcity of NEA
funding does not distinguish this case from
Rosenberger, see
id., at 835, the competitive process according to which the
grants are allocated does. In the context of arts funding, in
contrast to many other subsidies, the Government does not
indiscriminately "encourage a diversity of views from private
speakers," id., at 834. The NEA's mandate is to make esthetic
judgments, and the inherently content-based "excellence" threshold
for NEA support sets it apart from the subsidy at issue in
Rosenberger-which was available to all student organizations
that were" 'related to the educational purpose of the University,'"
id., at 824-and from comparably objective decisions on allocating
public benefits, such as access to a school auditorium or a
municipal theater, see
Lamb's Chapel v.
Center Moriches
Union Free School Dist., 508 U. S. 384, 386
(1993);
Southeastern Promotions, Ltd. v.
Conrad,
420 U. S. 546,
555 (1975), or the second class mailing privileges available to
"'all newspapers and other periodical publications,'" see
Hannegan v.
Esquire, Inc., 327 U. S. 146, 148, n. 1
(1946).
Respondents do not allege discrimination in any particular
funding decision. (In fact, after filing suit to challenge §
954(d)(1), two of the individual respondents received NEA grants.
See 4 Record, Doc. No. 57, Exh. 35 (Sept. 30, 1991, letters from
the NEA informing respondents Hughes and Miller that they had been
awarded Solo Performance The-
587
ater Artist Fellowships).) Thus, we have no occasion here to
address an as-applied challenge in a situation where the denial of
a grant may be shown to be the product of invidious viewpoint
discrimination. If the NEA were to leverage its power to award
subsidies on the basis of subjective criteria into a penalty on
disfavored viewpoints, then we would confront a different case. We
have stated that, even in the provision of subsidies, the
Government may not "ai[m] at the suppression of dangerous ideas,"
Regan v.
Taxation with Representation of Wash.,
461 U. S. 540,
550 (1983) (internal quotation marks omitted), and if a subsidy
were "manipulated" to have a "coercive effect," then relief could
be appropriate. See
Arkansas Writers' Project, Inc. v.
Ragland, 481 U. S. 221, 237 (1987) (SCALIA, J., dissenting);
see also
Leathers v.
Medlock, 499 U. S. 439, 447 (1991)
("[D]ifferential taxation of First Amendment speakers is
constitutionally suspect when it threatens to suppress the
expression of particular ideas or viewpoints"). In addition, as the
NEA itself concedes, a more pressing constitutional question would
arise if Government funding resulted in the imposition of a
disproportionate burden calculated to drive "certain ideas or
viewpoints from the marketplace."
Simon &
Schuster,
Inc. v.
Members of N.
Y. State Crime Victims Bd.,
502 U. S. 105,
116 (1991); see Brief for Petitioners 38, n. 12. Unless § 954(d)(1)
is applied in a manner that raises concern about the suppression of
disfavored viewpoints, however, we uphold the constitutionality of
the provision. Cf.
Red Lion Broadcasting Co. v.
FCC,
395 U. S. 367,
396 (1969) ("[WJe will not now pass upon the constitutionality of
these regulations by envisioning the most extreme applications
conceivable, but will deal with those problems if and when they
arise" (citation omitted)).
B
Finally, although the First Amendment certainly has application
in the subsidy context, we note that the Government may allocate
competitive funding according to criteria
588
that would be impermissible were direct regulation of speech or
a criminal penalty at stake. So long as legislation does not
infringe on other constitutionally protected rights, Congress has
wide latitude to set spending priorities. See
Regan, supra,
at 549. In the 1990 amendments that incorporated § 954(d)(1),
Congress modified the declaration of purpose in the NEA's enabling
Act to provide that arts funding should "contribute to public
support and confidence in the use of taxpayer funds," and that
"[p]ublic funds ... must ultimately serve public purposes the
Congress defines." § 951(5). And as we held in
Rust,
Congress may "selectively fund a program to encourage certain
activities it believes to be in the public interest, without at the
same time funding an alternative program which seeks to deal with
the problem in another way." 500 U. S., at 193. In doing so, "the
Government has not discriminated on the basis of viewpoint; it has
merely chosen to fund one activity to the exclusion of the other."
Ibid.; see also
Maher v.
Roe, 432 U. S. 464, 475 (1977)
("There is a basic difference between direct state interference
with a protected activity and state encouragement of an alternative
activity consonant with legislative policy").
III
The lower courts also erred in invalidating § 954(d)(1) as
unconstitutionally vague. Under the First and Fifth Amendments,
speakers are protected from arbitrary and discriminatory
enforcement of vague standards. See
NAACP v.
Button,
371 U. S. 415,
432-433 (1963). The terms of the provision 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 grants of this nature. Cf.
Board of Airport Comm'rs of Los Angeles v.
Jews for
Jesus, Inc., 482
U. S. 569, 574 (1987) (facially invalidating a flat ban
589
on any "First Amendment" activities in an airport);
Hoffman
Estates v.
Flipside, Hoffman Estates, Inc., 455 U. S. 489, 499 (1982)
("prohibitory and stigmatizing effect" of a "quasicriminal"
ordinance relevant to the vagueness analysis);
Grayned v.
City of Rockford, 408 U. S., at 108 (requiring clear lines
between "lawful and unlawful" conduct). We recognize, as a
practical matter, that artists may conform their speech to what
they believe to be the decisionmaking criteria in order to acquire
funding. See Statement of Charlotte Murphy, Executive Director of
NAAO, reprinted in App. 2122. But when the Government is acting as
patron rather than as 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, if this statute is
unconstitutionally vague, then so too are all Government programs
awarding scholarships and grants on the basis of subjective
criteria such as "excellence." See,
e. g., 2 U. S. C. § 802
(establishing the Congressional Award Program to "promote
initiative, achievement, and excellence among youths in the areas
of public service, personal development, and physical and
expedition fitness"); 20 U. S. C. § 956(c)(1) (providing funding to
the National Endowment for the Humanities to promote "progress and
scholarship in the humanities"); § 1134h(a) (authorizing the
Secretary of Education to award fellowships to "students of
superior ability selected on the basis of demonstrated achievement
and exceptional promise"); 22 U. S. C. § 2452(a) (authorizing the
award of Fulbright grants to "strengthen international cooperative
relations"); 42 U. S. C. § 7382c (authorizing the Secretary of
Energy to recognize teachers for "excellence in mathematics or
science education"). To accept respondents' vagueness argument
would be to call into question the constitutionality of these
valuable Government programs and countless others like them.
590
Section 954(d)(1) merely adds some imprecise considerations to
an already subjective selection process. It does not, on its face,
impermissibly infringe on First or Fifth Amendment rights.
Accordingly, the judgment of the Court of Appeals is reversed, and
the case is remanded for further proceedings consistent with this
opinion.
It is so ordered.
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring in
the judgment.
"The operation was a success, but the patient died."
What such a procedure is to medicine, the Court's opinion in
this case is to law. It sustains the constitutionality of 20 U. S.
C. § 954(d)(1) by gutting it. The most avid congressional opponents
of the provision could not have asked for more. I write separately
because, unlike the Court, I think that § 954(d)(1) must be
evaluated as written, rather than as distorted by the agency it was
meant to control. By its terms, it establishes content- and
viewpoint-based criteria upon which grant applications are to be
evaluated. And that is perfectly constitutional.
I
THE STATUTE MEANS WHAT IT SAYS
Section 954(d)(1) provides:
"No payment shall be made under this section except upon
application therefor which is submitted to the National Endowment
for the Arts in accordance with regulations issued and procedures
established by the Chairperson. In establishing such regulations
and procedures, the Chairperson shall ensure that-
"(1) 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."
591
The phrase "taking into consideration general standards of
decency and respect for the diverse beliefs and values of the
American public" is what my grammar-school teacher would have
condemned as a dangling modifier: There is no noun to which the
participle is attached (unless one jumps out of paragraph (1) to
press "Chairperson" into service). Even so, it is clear enough that
the phrase is meant to apply to those who do the judging. The
application reviewers must take into account "general standards of
decency" and "respect for the diverse beliefs and values of the
American public" when evaluating artistic excellence and merit. One
can regard this as either suggesting that decency and respect are
elements of what Congress regards as artistic excellence and merit,
or as suggesting that decency and respect are factors to be taken
into account
in addition to artistic excellence and merit.
But either way, it is entirely, 100% clear that decency and respect
are to be taken into account in evaluating applications.
This is so apparent that I am at a loss to understand what the
Court has in mind (other than the gutting of the statute) when it
speculates that the statute is merely "advisory."
Ante, at
581. General standards of decency and respect for Americans'
beliefs and values
must (for the statute says that the
Chairperson "shall ensure" this result) be taken into account, see,
e. g., American Heritage Dictionary 402 (3d ed. 1992)
("consider ... [t]o take into account; bear in mind"), in
evaluating all applications. This does not mean that those factors
must always be dispositive, but it
does mean that they must
always be considered. The method of compliance proposed by the
National Endowment for the Arts (NEA)selecting diverse review
panels of artists and nonartists that reflect a wide range of
geographic and cultural perspectives-is so obviously inadequate
that it insults the intelligence. A diverse panel membership
increases the odds that,
if and when the panel takes the
factors into account, it will reach an accurate assessment of what
they demand. But it
592
in no way increases the odds that the panel
will take the
factors into consideration-much less
ensures that the panel
will do so, which is the Chairperson's duty under the statute.
Moreover, the NEA's fanciful reading of § 954(d)(1) would make it
wholly superfluous. Section 959(c) already requires the Chairperson
to "issue regulations and establish procedures ... to ensure that
all panels are composed, to the extent practicable, of individuals
reflecting ... diverse artistic and cultural points of view."
The statute requires the decency and respect factors to be
considered in evaluating
all applications-not, for example,
just those applications relating to educational programs,
ante, at 584, or intended for a particular audience,
ante, at 585. Just as it would violate the statute to apply
the artistic excellence and merit requirements to only select
categories of applications, it would violate the statute to apply
the decency and respect factors less than universally. A reviewer
may, of course, give varying weight to the factors depending on the
context, and in some categories of cases (such as the Court's
example of funding for symphony orchestras,
ante, at 583)
the factors may rarely if ever affect the outcome; but § 954(d)(1)
requires the factors to be considered in every case.
I agree with the Court that § 954(d)(1) "imposes no categorical
requirement,"
ante, at 581, in the sense that it does not
require the denial of all applications that violate general
standards of decency or exhibit disrespect for the diverse beliefs
and values of Americans. Cf. § 954(d)(2) ("[O]bscenity ... shall
not be funded"). But the factors need not be conclusive to be
discriminatory. To the extent a particular applicant exhibits
disrespect for the diverse beliefs and values of the American
public or fails to comport with general standards of decency, the
likelihood that he will receive a grant diminishes. In other words,
the presence of the "tak[e] into consideration" clause "cannot be
regarded as mere surplusage; it means something,"
Potter v.
United
593
States, 155
U. S. 438, 446 (1894). And the "something" is that the
decisionmaker, all else being equal, will favor applications that
display decency and respect, and disfavor applications that do
not.
This unquestionably constitutes viewpoint discrimination.1 That
conclusion is not altered by the fact that the statute does not
"compe[l]" the denial of funding,
ante, at 581, any more
than a provision imposing a five-point handicap on all black
applicants for civil service jobs is saved from being race
discrimination by the fact that it does not compel the rejection of
black applicants. If viewpoint discrimination in this context is
unconstitutional (a point I shall address anon), the law is invalid
unless there are some situations in which the decency and respect
factors
do not constitute viewpoint discrimination. And
there is none. The applicant who displays "decency," that is,
"[c]onformity to prevailing standards of propriety or modesty,"
American Heritage Dictionary, at 483 (def. 2), and the applicant
who displays "respect," that is, "deferential regard," for the
diverse beliefs and values of the American people,
id., at
1536 (def. 1), will
always have an edge over an applicant
who displays the opposite. And finally, the conclusion of viewpoint
discrimination is not affected by the fact that what constitutes
"'decency''' or "'the diverse values and beliefs of the American
people'" is difficult to pin down,
ante, at 583-any more
than a civil service preference in favor of those who display
"Republican-Party values" would be rendered nondiscriminatory by
the fact that there is plenty of room for argument as to what
Republican-Party values might be.
1 If there is any uncertainty on the point, it relates only to
the adjective, which is not at issue in the current discussion.
That is, one might argue that the decency and respect factors
constitute
content discrimination rather than
viewpoint discrimination, which would render them easier to
uphold. Since I believe this statute must be upheld in either
event, I pass over this conundrum and assume the worst.
594
The "political context surrounding the adoption of the 'decency
and respect' clause," which the Court discusses at some length,
ante, at 581, does not change its meaning or affect its
constitutionality. All that is proved by the various statements
that the Court quotes from the Report of the Independent Commission
and the floor debates is (1) that the provision was not meant
categorically to exclude any particular viewpoint (which I have
conceded, and which is plain from the text), and (2) that the
language was not meant to do anything that is unconstitutional.
That in no way propels the Court's leap to the countertextual
conclusion that the provision was merely "aimed at reforming
procedures," and cannot be "utilized as a tool for invidious
viewpoint discrimination,"
ante, at 582. It is evident in
the legislative history that § 954(d)(1) was prompted by, and
directed at, the public funding of such offensive productions as
Serrano's "Piss Christ," the portrayal of a crucifix immersed in
urine, and Mapplethorpe's show of lurid homoerotic photographs.
Thus, even if one strays beyond the plain text it is perfectly
clear that the statute was meant to disfavor-that is, to
discriminate against-such productions. Not to ban their funding
absolutely, to be sure (though as I shall discuss, that also would
not have been unconstitutional), but to make their funding more
difficult.
More fundamentally, of course, all this legislative history has
no valid claim upon our attention at all. It is a virtual certainty
that very few of the Members of Congress who voted for this
language both (1) knew of, and (2) agreed with, the various
statements that the Court has culled from the Report of the
Independent Commission and the floor debate (probably conducted on
an almost empty floor). And it is wholly irrelevant that the
statute was a "bipartisan proposal introduced as a counterweight"
to an alternative proposal that would directly restrict funding on
the basis of viewpoint. See
ante, at 581-582. We do not
judge statutes as
595
if we are surveying the scene of an accident; each one is
reviewed, not on the basis of how much worse it could have been,
but on the basis of what it says. See
United States v.
Estate of Romani, 523 U. S. 519, 535 (1998) (SCALIA, J.,
concurring in part and concurring in judgment). It matters not
whether this enactment was the product of the most partisan
alignment in history or whether, upon its passage, the Members all
linked arms and sang, "The more we get together, the happier we'll
be." It is "not consonant with our scheme of government for a court
to inquire into the motives of legislators."
Tenney v.
Brandhove, 341
U. S. 367, 377 (1951). The law at issue in this case is to be
found in the text of § 954(d)(1), which passed both Houses and was
signed by the President, U. S. Const., Art. I, § 7. And that law
unquestionably disfavors-discriminates against-indecency and
disrespect for the diverse beliefs and values of the American
people. I turn, then, to whether such viewpoint discrimination
violates the Constitution.
II
WHAT THE STATUTE SAYS Is CONSTITUTIONAL
The Court devotes so much of its opinion to explaining why this
statute means something other than what it says that it neglects to
cite the constitutional text governing our analysis. The First
Amendment reads: "Congress shall make no law ...
abridging
the freedom of speech." U. S. Const., Amdt. 1 (emphasis added). To
abridge is "to contract, to diminish; to deprive of." T. Sheridan,
A Complete Dictionary of the English Language (6th ed. 1796). With
the enactment of § 954(d)(1), Congress did not
abridge the
speech of those who disdain the beliefs and values of the American
public, nor did it
abridge indecent speech. Those who wish
to create indecent and disrespectful art are as unconstrained now
as they were before the enactment of this statute.
Avant-garde
artistes such as respondents remain
596
entirely free to
epater les bourgeois;2 they are merely
deprived of the additional satisfaction of having the bourgeoisie
taxed to pay for it. It is preposterous to equate the denial of
taxpayer subsidy with measures" '''aimed at the
suppression
of dangerous ideas."'"
Regan v.
Taxation with
Representation of Wash., 461 U. S. 540, 550 (1983)
(emphasis added) (quoting
Cammarano v.
United States,
358 U. S. 498,
513 (1959), in turn quoting
Speiser v.
Randall,
357 U. S. 513,
519 (1958)). "The reason that denial of participation in a tax
exemption or other subsidy scheme does not necessarily 'infringe' a
fundamental right is that-unlike direct restriction or
prohibition-such a denial does not, as a general rule, have any
significant coercive effect."
Arkansas Writers' Project,
Inc. v.
Ragland, 481 U. S. 221, 237 (1987)
(SCALIA, J., dissenting).
One might contend, I suppose, that a threat of rejection by the
only available source of free money would constitute coercion and
hence "abridgment" within the meaning of the First Amendment. Cf.
Norwood v.
Harrison, 413 U. S. 455, 465
(1973). I would not agree with such a contention, which would make
the NEA the mandatory patron of all art too
2Which they do quite well. The
oeuvres d'art for which
the four individual plaintiffs in this case sought funding have
been described as follows:
"Finley's controversial show, 'We Keep Our Victims Ready,'
contains three segments. In the second segment, Finley visually
recounts a sexual assault by stripping to the waist and smearing
chocolate on her breasts and by using profanity to describe the
assault. Holly Hughes' monologue 'World Without End' is a somewhat
graphic recollection of the artist's realization of her lesbianism
and reminiscence of her mother's sexuality. John Fleck, in his
stage performance 'Blessed Are All the Little Fishes,' confronts
alcoholism and Catholicism. During the course of the performance,
Fleck appears dressed as a mermaid, urinates on the stage and
creates an altar out of a toilet bowl by putting a photograph of
Jesus Christ on the lid. Tim Miller derives his performance 'Some
Golden States' from childhood experiences, from his life as a
homosexual, and from the constant threat of AIDS. Miller uses
vegetables in his performances to represent sexual symbols." Note,
48 Wash. & Lee L. Rev. 1545, 1546, n. 2 (1991) (citations
omitted).
597
indecent, too disrespectful, or even too
kitsch to
attract private support. But even if one accepts the contention, it
would have no application here. The NEA is far from the sole source
of funding for art-even indecent, disrespectful, or just plain bad
art. Accordingly, the Government may earmark NEA funds for projects
it deems to be in the public interest without thereby abridging
speech.
Regan v.
Taxation with Representation of Wash.,
supra, at 549.
Section 954(d)(1) is no more discriminatory, and no less
constitutional, than virtually every other piece of funding
legislation enacted by Congress. "The Government can, without
violating the Constitution, selectively fund a program to encourage
certain activities it believes to be in the public interest,
without at the same time funding an alternative program .... "
Rust v.
Sullivan, 500 U. S. 173, 193
(1991). As we noted in
Rust, when Congress chose to
establish the National Endowment for Democracy it was not
constitutionally required to fund programs encouraging competing
philosophies of government-an example of funding discrimination
that cuts much closer than this one to the core of
political
speech which is the primary concern of the First Amendment. See
id., at 194. It takes a particularly high degree of chutzpah for
the NEA to contradict this proposition, since the agency itself
discriminates-and is required by law to discriminate-in favor of
artistic (as opposed to scientific, or political, or theological)
expression. Not all the common folk, or even all great minds, for
that matter, think that is a good idea. In 1800, when John Marshall
told John Adams that a recent immigration of Frenchmen would
include talented artists, "Adams denounced all Frenchmen, but most
especially 'schoolmasters, painters, poets, &C.' He warned
Marshall that the fine arts were like germs that infected healthy
constitutions." J. Ellis, After the Revolution:
Profiles of Early American Culture 36 (1979). Surely the NEA
itself is nothing less than an institutionalized discrimination
against that point of view. Nonetheless, it is consti-
598
tutional, as is the congressional determination to favor decency
and respect for beliefs and values over the opposite because such
favoritism does not "abridge" anyone's freedom of speech.
Respondents, relying on
Rosenberger v.
Rector and
Visitors of Univ. of Va., 515 U. S. 819, 833
(1995), argue that viewpoint-based discrimination is impermissible
unless the government is the speaker or the government is
"disburs[ing] public funds to private entities to convey a
governmental message."
Ibid. It is impossible to imagine why
that should be so; one would think that directly involving the
government itself in the viewpoint discrimination (if it is
unconstitutional) would make the situation even worse. Respondents
are mistaken. It is the very business of government to favor and
disfavor points of view on (in modern times, at least) innumerable
subjects-which is the main reason we have decided to elect those
who run the government, rather than save money by making their
posts hereditary. And it makes not a bit of difference, insofar as
either common sense or the Constitution is concerned, whether these
officials further their (and, in a democracy, our) favored point of
view by achieving it directly (having government-employed artists
paint pictures, for example, or government-employed doctors perform
abortions); or by advocating it officially (establishing an Office
of Art Appreciation, for example, or an Office of Voluntary
Population Control); or by giving money to others who achieve or
advocate it (funding private art classes, for example, or Planned
Parenthood).3 None of this has anything to do with abridging
anyone's speech.
Rosenberger, as the Court explains,
ante, at 586, found the view-
3 I suppose it would be unconstitutional for the government to
give money to an organization devoted to the promotion of
candidates nominated by the Republican Party-but it would be just
as unconstitutional for the government itself to promote candidates
nominated by the Republican Party, and I do not think that that
unconstitutionality has anything to do with the First
Amendment.
599
point discrimination unconstitutional, not because funding of
"private" speech was involved, but because the government had
established a limited public forum-to which the NEA's granting of
highly selective (if not highly discriminating) awards bears no
resemblance.
The nub of the difference between me and the Court is that I
regard the distinction between "abridging" speech and funding it as
a fundamental divide, on this side of which the First Amendment is
inapplicable. The Court, by contrast, seems to believe that the
First Amendment, despite its words, has some ineffable effect upon
funding, imposing constraints of an indeterminate nature which it
announces (without troubling to enunciate any particular test) are
not violated by the statute here-or, more accurately, are not
violated by the quite different, emasculated statute that it
imagines. "[T]he Government," it says, "may allocate competitive
funding according to criteria that would be impermissible were
direct regulation of speech or a criminal penalty at stake,"
ante, at 587-588. The Government,
I think, may
allocate both competitive and noncompetitive funding
ad
libitum, insofar as the First Amendment is concerned.
Finally, what is true of the First Amendment is also true of the
constitutional rule against vague legislation: it has no
application to funding. Insofar as it bears upon First Amendment
concerns, the vagueness doctrine addresses the problems that arise
from government
regulation of expressive conduct, see
Grayned v.
City of Rockford, 408 U. S. 104, 108-109
(1972), not government grant programs. In the former context,
vagueness produces an abridgment of lawful speech; in the latter it
produces, at worst, a waste of money. I cannot refrain from
observing, however, that if the vagueness doctrine
were
applicable, the agency charged with making grants under a statutory
standard of "artistic excellence"-and which has itself thought that
standard met by everything from the playing of Beethoven to a
depiction of
600
a crucifix immersed in urine-would be of more dubious
constitutional validity than the "decency" and "respect"
limitations that respondents (who demand to be judged on the same
strict standard of "artistic excellence") have the humorlessness to
call too vague.
***
In its laudatory description of the accomplishments of the NEA,
ante, at 574, the Court notes with satisfaction that "only a
handful of the agency's roughly 100,000 awards have generated
formal complaints,"
ibid. The Congress that felt it
necessary to enact § 954(d)(1) evidently thought it much
more noteworthy that
any money exacted from American
taxpayers had been used to produce a crucifix immersed in urine or
a display of homoerotic photographs. It is no secret that the
provision was prompted by, and directed at, the funding of such
offensive productions. Instead of banning the funding of such
productions absolutely, which I think would have been entirely
constitutional, Congress took the lesser step of requiring them to
be disfavored in the evaluation of grant applications. The Court's
opinion today renders even that lesser step a nullity. For that
reason, I concur only in the judgment.
JUSTICE SOUTER, dissenting.
The question here is whether the italicized segment of this
statute is unconstitutional on its face: "[A]rtistic excellence and
artistic merit are the criteria by which applications [for grants
from the National Endowment for the Arts (NEA)] 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). It is.
The decency and respect proviso mandates viewpointbased
decisions in the disbursement of Government subsidies, and the
Government has wholly failed to explain why the statute should be
afforded an exemption from the funda-
601
mental rule of the First Amendment that viewpoint discrimination
in the exercise of public authority over expressive activity is
unconstitutional. The Court's conclusions that the proviso is not
viewpoint based, that it is not a regulation, and that the NEA may
permissibly engage in viewpoint-based discrimination, are all
patently mistaken. Nor may the question raised be answered in the
Government's favor on the assumption that some constitutional
applications of the statute are enough to satisfy the demand of
facial constitutionality, leaving claims of the proviso's obvious
invalidity to be dealt with later in response to challenges of
specific applications of the discriminatory standards. This
assumption is irreconcilable with our longstanding and sensible
doctrine of facial overbreadth, applicable to claims brought under
the First Amendment's speech clause. I respectfully dissent.
I
"If there is a bedrock principle underlying the First Amendment,
it is that the government may not prohibit the expression of an
idea simply because society finds the idea itself offensive or
disagreeable."
Texas v.
Johnson, 491 U. S. 397, 414
(1989). "[A]bove all else, the First Amendment means that
government has no power to restrict expression because of its
message [or] its ideas,"
Police Dept. of Chicago v.
Mosley, 408 U.
S. 92, 95 (1972), which is to say that "[t]he principle of
viewpoint neutrality ... underlies the First Amendment,"
Bose
Corp. v.
Consumers Union of United States, Inc.,
466 U. S. 485,
505 (1984). Because this principle applies not only to affirmative
suppression of speech, but also to disqualification for government
favors, Congress is generally not permitted to pivot discrimination
against otherwise protected speech on the offensiveness or
unacceptability of the views it expresses. See,
e. g.,
Rosenberger v.
Rector and Visitors of Univ. of Va.,
515 U. S. 819
(1995) (public university's student activities funds may not be
disbursed on viewpoint-based terms);
Lamb's Chapel v.
Center Moriches
602
Union Free School Dist., 508 U. S. 384 (1993)
(after-hours access to public school property may not be withheld
on the basis of viewpoint);
Leathers v.
Medlock,
499 U. S. 439,
447 (1991) ("[DJifferential taxation of First Amendment speakers is
constitutionally suspect when it threatens to suppress the
expression of particular ideas or viewpoints");
Pacific Gas
& Elec. Co. v.
Public Util. Comm'n of Cal., 475 U. S. 1 (1986)
(government-mandated access to public utility's billing envelopes
must not be viewpoint based);
Members of City Council of Los
Angeles v.
Taxpayers for Vincent, 466 U. S. 789, 804 (1984)
("[T]he First Amendment forbids the government to regulate speech
in ways that favor some viewpoints or ideas at the expense of
others").
It goes without saying that artistic expression lies within this
First Amendment protection. See,
e. g., Hurley v.
Irish-American Gay, Lesbian and Bisexual Group of Boston,
Inc., 515 U. S.
557, 569 (1995) (remarking that examples of painting, music,
and poetry are "unquestionably shielded");
Ward v.
Rock
Against Racism, 491 U. S. 781, 790 (1989)
("Music, as a form of expression and communication, is protected
under the First Amendment");
Schad v.
Mount Ephraim,
452 U. S. 61, 65
(1981) ("Entertainment, as well as political and ideological
speech, is protected; motion pictures, programs broadcast by radio
and television, and live entertainment, such as musical and
dramatic works, fall within the First Amendment guarantee");
Kaplan v.
California, 413 U. S. 115, 119-120
(1973) ("[P]ictures, films, paintings, drawings, and engravings ...
have First Amendment protection"). The constitutional protection of
artistic works turns not on the political significance that may be
attributable to such productions, though they may indeed comment on
the political,l but simply on their expressive character, which
1 Art "may affect public attitudes and behavior in a variety of
ways, ranging from direct espousal of a political or social
doctrine to the subtle shaping of thought which characterizes all
artistic expression."
Joseph Burstyn, Inc. v.
Wilson,
343 U. S. 495,
501 (1952).
603
falls within a spectrum of protected "speech" extending outward
from the core of overtly political declarations. Put differently,
art is entitled to full protection because our "cultural life,"
just like our native politics, "rest[s] upon [the] ideal" of
governmental viewpoint neutrality.
Turner Broadcasting System,
Inc. v.
FCC, 512 U. S. 622, 641
(1994).
When called upon to vindicate this ideal, we characteristically
begin by asking "whether the government has adopted a regulation of
speech because of disagreement with the message it conveys. The
government's purpose is the controlling consideration."
Ward
v.
Rock Against Racism, supra, at 791 (citation omitted).
The answer in this case is damning. One need do nothing more than
read the text of the statute to conclude that Congress's purpose in
imposing the decency and respect criteria was to prevent the
funding of art that conveys an offensive message; the decency and
respect provision on its face is quintessentially viewpoint based,
and quotations from the Congressional Record merely confirm the
obvious legislative purpose. In the words of a cosponsor of the
bill that enacted the proviso, "[w]orks which deeply offend the
sensibilities of significant portions of the public ought not to be
supported with public funds." 136 Congo Rec. 28624 (1990).2 Another
supporter of the bill observed that "the Endowment's support for
artists like Robert Mapplethorpe and Andre[s] Serrano has offended
and angered many citizens," behooving "Congress ... to listen to
these complaints about the NEA and make sure that exhibits like
[these] are not funded again."
Id., at 28642. Indeed, if
there were any question at all about what Congress had in
2 There is, of course, nothing whatsoever unconstitutional about
this view as a general matter. Congress has no obligation to
support artistic enterprises that many people detest. The First
Amendment speaks up only when Congress decides to participate in
the Nation's artistic life by legal regulation, as it does through
a subsidy scheme like the NEA. If Congress does choose to spend
public funds in this manner, it may not discriminate by viewpoint
in deciding who gets the money.
604
mind, a definitive answer comes in the succinctly accurate
remark of the proviso's author, that the bill "add[s] to the
criteria of artistic excellence and artistic merit, a shell, a
screen, a viewpoint that must be constantly taken into account."
Id., at 28631.3
II
In the face of such clear legislative purpose, so plainly
expressed, the Court has its work cut out for it in seeking a
3 On the subject of legislative history and purpose, it is
disturbing that the Court upholds § 954(d) in part because the
statute was drafted in hope of avoiding constitutional objections,
with some Members of Congress proclaiming its constitutionality on
the congressional floor. See
ante, at 581582. Like the
Court, I assume that many Members of Congress believed the bill to
be constitutional. Indeed, Members of Congress must take an oath or
affirmation to support the Constitution, see U. S. Const., Art. VI,
cl. 3, and we should presume in every case that Congress believed
its statute to be consistent with the constitutional commands, see,
e. g.,
United States v.
X-Citement Video,
Inc., 513 U. S.
64, 73 (1994) ("[W]e do not impute to Congress an intent to
pass legislation that is inconsistent with the Constitution");
Yates v.
United States, 354 U. S. 298, 319
(1957). But courts cannot allow a legislature's conc1usory belief
in constitutionality, however sincere, to trump incontrovertible
unconstitutionality, for "[i]t is emphatically the province and
duty of the judicial department to say what the law is."
Marbury v.
Madison, 1 Cranch 137, 177 (1803).
I recognize, as the court explains,
ante, at 581, that
the amendment adding the decency and respect proviso was a
bipartisan counterweight to more severe alternatives, and that some
Members of Congress may have voted for it simply because it seemed
the least among various evils. See,
e. g., 136 Congo Rec.
28670 (1990) ("I am not happy with all aspects of the
Williams-Coleman substitute .... It ... contains language
concerning standards of decency that I find very troubling. But I
applaud Mr. WILLIAMS for his efforts in achieving this compromise
under very difficult circumstances .... I support the
Williams-Coleman substitute"). Perhaps the proviso was the mildest
alternative available, but that simply proves that the bipartisan
push to reauthorize the NEA could succeed only by including at
least some viewpoint-based limitations. An appreciation of
alternatives does not alter the fact that Congress passed decency
and respect restrictions, and it did so knowing and intending that
those restrictions would prevent future controversies stemming from
the NEA's funding of inflammatory art projects, by declaring the
inflammatory to be disfavored for funding.
605
constitutional reading of the statute. See Edward J. DeBartolo
Corp. v. Florida Gulf Coast Building & Constr. Trades Council,
485 U. S. 568,
575 (1988).
A
The Court says, first, that because the phrase "general
standards of decency and respect for the diverse beliefs and values
of the American public" is imprecise and capable of multiple
interpretations, "the considerations that the provision introduces,
by their nature, do not engender the kind of directed viewpoint
discrimination that would prompt this Court to invalidate a statute
on its face."
Ante, at 583. Unquestioned case law, however,
is clearly to the contrary.
"Sexual expression which is indecent but not obscene is
protected by the First Amendment,"
Sable Communications of Cal.,
Inc. v.
FCC, 492 U. S. 115, 126
(1989), and except when protecting children from exposure to
indecent material, see
FCC v.
Pacifica Foundation,
438 U. S. 726
(1978), the First Amendment has never been read to allow the
government to rove around imposing general standards of decency,
see,
e. g., Reno v.
American Civil Liberties Union,
521 U. S. 844
(1997) (striking down on its face a statute that regulated
"indecency" on the Internet). Because "the normal definition of
'indecent' ... refers to nonconformance with accepted standards of
morality,"
FCC v.
Pacifica Foundation, supra, at 740,
restrictions turning on decency, especially those couched in terms
of "general standards of decency," are quintessentially viewpoint
based: they require discrimination on the basis of conformity with
mainstream mores. The Government's contrary suggestion that the
NEA's decency standards restrict only the "form, mode, or style" of
artistic expression, not the underlying viewpoint or message, Brief
for Petitioners 39-41, may be a tempting abstraction (and one not
lacking in support, cf.
Bolger v.
Youngs Drug Products
Corp., 463 U. S.
60, 83-84 (1983) (STEVENS, J., concurring in judgment)). But
here it suffices to realize that "form, mode, or style" are not
subject to ab-
606
straction from artistic viewpoint, and to quote from an opinion
just two years old: "In artistic ... settings, indecency may have
strong communicative content, protesting conventional norms or
giving an edge to a work by conveying otherwise inexpressible
emotions .... Indecency often is inseparable from the ideas and
viewpoints conveyed, or separable only with loss of truth or
expressive power."
Denver Area Ed. Telecommunications
Consortium, Inc. v.
FCC, 518 U. S. 727,805 (1996)
(KENNEDY, J., joined by GINSBURG, J., concurring) (citation and
internal quotation marks omitted); see also
Cohen v.
California, 403
U. S. 15, 26 (1971) ("[WJe cannot indulge the facile assumption
that one can forbid particular words without also running a
substantial risk of suppressing ideas in the process"). "[T]he
inextricability of indecency from expression,"
Denver Area Ed.
Telecommunications Consortium, supra, at 805, is beyond dispute
in a certain amount of entirely lawful artistic enterprise. Starve
the mode, starve the message.
Just as self-evidently, a statute disfavoring speech that fails
to respect America's "diverse beliefs and values" is the very model
of viewpoint discrimination; it penalizes any view disrespectful to
any belief or value espoused by someone in the American populace.
Boiled down to its practical essence, the limitation obviously
means that art that disrespects the ideology, opinions, or
convictions of a significant segment of the American public is to
be disfavored, whereas art that reinforces those values is not.
After all, the whole point of the proviso was to make sure that
works like Serrano's ostensibly blasphemous portrayal of Jesus
would not be funded, see
supra, at 603, while a reverent
treatment, conventionally respectful of Christian sensibilities,
would not run afoul of the law. Nothing could be more viewpoint
based than that. Cf.
Rosenberger, 515 U. S., at 831 (a
statute targeting a "prohibited perspective, not the general
subject matter" of religion is viewpoint based);
United
States v.
Eichman, 496 U. S. 310, 317 (1990)
(striking down anti-flag-
607
burning statute because it impermissibly prohibited speech that
was "disrespectful" of the flag). The fact that the statute
disfavors art insufficiently respectful of America's "diverse"
beliefs and values alters this conclusion not one whit: the First
Amendment does not validate the ambition to disqualify many
disrespectful viewpoints instead of merely one. See
Rosenberger,
supra, at 831-832.
B
Another alternative for avoiding unconstitutionality that the
Court appears to regard with some favor is the Government's
argument that the NEA may comply with § 954(d) merely by populating
the advisory panels that analyze grant applications with members of
diverse backgrounds. See
ante, at 577, 581. Would that it
were so easy; this asserted implementation of the law fails even to
"reflec[t] a plausible construction of the plain language of the
statute."
Rust v.
Sullivan, 500 U. S. 173, 184
(1991).
The Government notes that § 954(d) actually provides that "[i]n
establishing ... regulations and procedures, the Chairperson [of
the NEA] shall ensure that (1) 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." According to
the Government, this language requires decency and respect to be
considered not in judging applications, but in making regulations.
If, then, the Chairperson takes decency and respect into
consideration through regulations ensuring diverse panels, the
statute is satisfied. But it would take a great act of will to find
any plausibility in this reading. The reference to considering
decency and respect occurs in the subparagraph speaking to the
"criteria by which applications are judged," not in the preamble
directing the Chairperson to adopt regulations; it is in judging
applications that decency and respect are most obviously to be
considered. It is no surprise, then, that the
608
Government's reading is directly contradicted by the legislative
history. According to the provision's author, the decency and
respect proviso "mandates that in the awarding of funds, in the
award process itself, general standards of decency must be
accorded." 136 Congo Rec. 28672 (1990). Or, as the cosponsor of the
bill put it, "the decisions of artistic excellence must take into
consideration general standards of decency and respect for the
diverse beliefs and values of the American public."
Id., at
28624.
The Government offers a variant of this argument in suggesting
that even if the NEA must take decency and respect into account in
the active review of applications, it may satisfy the statute by
doing so in an indirect way through the natural behavior of
diversely constituted panels. This, indeed, has apparently been the
position of the Chairperson of the NEA since shortly after the
legislation was first passed. But the problems with this position
are obvious. First, it defies the statute's plain language to
suggest that the NEA complies with the law merely by allowing
decency and respect to have their way through the subconscious
inclinations of panel members. "[T]aking into consideration" is a
conscious activity. See Webster's New International Dictionary 2570
(2d ed. 1949) (defining "take into consideration" as "[t]o make
allowance in judging for"); id., at 569 (defining "consideration"
as the "[a]ct or process of considering; continuous and careful
thought; examination; deliberation; attention"); id., at 568
(defining "consider" as "to think on with care ... to bear in
mind"). Second, even assuming that diverse panel composition would
produce a sufficient response to the proviso, that would merely
mean that selection for decency and respect would occur
derivatively through the inclinations of the panel members, instead
of directly through the intentional application of the criteria; at
the end of the day, the proviso would still serve its purpose to
screen out offending artistic works, and it would still be
unconstitutional. Finally, a less obvious but equally dispositive
re-
609
sponse is that reading the statute as a mandate that may be
satisfied merely by selecting diverse panels renders § 954(d)(1)
essentially redundant of § 959(c), which provides that the review
panels must comprise "individuals reflecting a wide geographic,
ethnic, and minority representation as well as individuals
reflecting diverse artistic and cultural points of view." Statutory
interpretations that "render superfluous other provisions in the
same enactment" are strongly disfavored.
Freytag v.
Commissioner, 501 U. S. 868, 877 (1991)
(internal quotation marks omitted).
C
A third try at avoiding constitutional problems is the Court's
disclaimer of any constitutional issue here because "[§] 954(d)(1)
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."
Ante, at 580-581. Since "§ 954(d)(1)
admonishes the NEA merely to take 'decency and respect' into
consideration,"
ante, at 582, not to make funding decisions
specifically on those grounds, the Court sees no constitutional
difficulty.
That is not a fair reading. Just as the statute cannot be read
as anything but viewpoint based, or as requiring nothing more than
diverse review panels, it cannot be read as tolerating awards to
spread indecency or disrespect, so long as the review panel, the
National Council on the Arts, and the Chairperson have given some
thought to the offending qualities and decided to underwrite them
anyway. That, after all, is presumably just what prompted the
congressional outrage in the first place, and there was nothing
naive about the Representative who said he voted for the bill
because it does "not tolerate wasting Federal funds for sexually
explicit photographs [or] sacrilegious works." 136 Congo Rec. 28676
(1990).
610
But even if I found the Court's view of "consideration"
plausible, that would make no difference at all on the question of
constitutionality. What if the statute required a panel to apply
criteria "taking into consideration the centrality of Christianity
to the American cultural experience," or "taking into consideration
whether the artist is a communist," or "taking into consideration
the political message conveyed by the art," or even "taking into
consideration the superiority of the white race"? Would the Court
hold these considerations facially constitutional, merely because
the statute had no requirement to give them any particular, much
less controlling, weight? I assume not. In such instances, the
Court would hold that the First Amendment bars the government from
considering viewpoint when it decides whether to subsidize private
speech, and a statute that mandates the consideration of viewpoint
is quite obviously unconstitutional. Cf.
Dawson v.
Delaware, 503
U. S. 159, 167 (1992) (holding that the First Amendment forbids
reliance on a defendant's abstract beliefs at sentencing, even if
they are considered as one factor among many);
Ozonoff v.
Berzak, 744 F.2d
224, 233
(CA1 1984) (Breyer, J.) (holding that an
Executive Order which provided that a person's political
associations
"may be considered" in determining security
clearance violated the First Amendment). Section 954(d)(1) is just
such a statute.
III
A second basic strand in the Court's treatment of today's
question, see
ante, at 585-587, and the heart of JUSTICE
SCALIA'S, see
ante, at 595-599, in effect assume that
whether or not the statute mandates viewpoint discrimination, there
is no constitutional issue here because government art subsidies
fall within a zone of activity free from First Amendment
restraints. The Government calls attention to the roles of
government-as-speaker and government-as-buyer, in which the
government is of course entitled to engage in view-
611
point discrimination: if the Food and Drug Administration
launches an advertising campaign on the subject of smoking, it may
condemn the habit without also having to show a cowboy taking a
puff on the opposite page; 4 and if the Secretary of Defense wishes
to buy a portrait to decorate the Pentagon, he is free to prefer
George Washington over George the Third.5
The Government freely admits, however, that it neither speaks
through the expression subsidized by the NEA,6 nor buys anything
for itself with its NEA grants. On the contrary, believing that
"[t]he arts ... reflect the high place accorded by the American
people to the nation's rich cultural heritage," § 951(6), and that
"[i]t is vital to a democracy ... to provide financial assistance
to its artists and the organizations that support their work," §
951(10), the Government acts as a patron, financially underwriting
the production of art by private artists and impresarios for
independent consumption. Accordingly, the Government would have us
liberate government-as-patron from First Amendment strictures not
by placing it squarely within the categories of government-as-buyer
or government-as-speaker,
4 See
Rust v.
Sullivan, 500 U. S. 173, 194 (1991)
("When Congress established a National Endowment for Democracy to
encourage other countries to adopt democratic principles, 22 U. S.
C. § 4411 (b), it was not constitutionally required to fund a
program to encourage competing lines of political philosophy such
as communism and fascism").
5 On proposing the Public Works Art Project (PWAP), the New Deal
program that hired artists to decorate public buildings, President
Roosevelt allegedly remarked: "I can't have a lot of young
enthusiasts painting Lenin's head on the Justice Building." Quoted
in Mankin, Federal Arts Patronage in the New Deal, in America's
Commitment to Culture: Government and the Arts 77 (K. Mulcahy &
M. Wyszomirski eds. 1995). He was buying, and was free to take his
choice.
6 Here, the "communicative element inherent in the very act of
funding itself,"
Rosenberger v.
Rector and Visitors of
Univ. of Va., 515
U. S. 819, 892-893, n. 11 (1995) (SOUTER, J., dissenting), is
an endorsement of the importance of the arts collectively, not an
endorsement of the individual message espoused in a given work of
art.
612
but by recogmzmg a new category by analogy to those accepted
ones. The analogy is, however, a very poor fit, and this patronage
falls embarrassingly on the wrong side of the line between
government-as-buyer or -speaker and government-as- regulator-of-
private-speech.
The division is reflected quite clearly in our precedents.
Drawing on the notion of government-as-speaker, we held in
Rust v.
Sullivan, 500 U. S., at 194, that the
Government was entitled to appropriate public funds for the
promotion of particular choices among alternatives offered by
health and social service providers (e. g., family planning with,
and without, resort to abortion). When the government promotes a
particular governmental program, "it is entitled to define the
limits of that program," and to dictate the viewpoint expressed by
speakers who are paid to participate in it.
Ibid.7 But we
added the important qualifying language that "[t]his is not to
suggest that funding by the Government, even when coupled with the
freedom of the fund recipients to speak outside the scope of the
Government-funded project, is invariably sufficient to justify
Government control over the content of expression."
Id., at
199. Indeed, outside of the contexts of government-as-buyer and
government-as-speaker, we have held time and time again that
Congress may not "discriminate invidiously in its subsidies in such
a way as to aim at the suppression of ... ideas."
Regan v.
Taxation with Representation of Wash., 461 U. S. 540, 548 (1983)
(internal quotation marks and brackets omitted); see also
Lamb's
Chapel, 508 U. S., at 394 (when the government subsidizes
private speech, it may not "favor some viewpoints or ideas at the
expense of others");
Hannegan v.
Esquire, Inc.,
327
7 In
Rust, "the government did not create a program to
encourage private speech but instead used private speakers to
transmit specific information pertaining to its own program. We
recognized that when the government appropriates public funds to
promote a particular policy of its own it is entitled to say what
it wishes."
Rosenberger, supra, at 833 (citing
Rust,
supra, at 194).
613
u. S. 146, 149 (1946) (the Postmaster General may not deny
subsidies to certain periodicals on the ground that they are
"'morally improper and not for the public welfare and the public
good' ").
Our most thorough statement of these principles is found in the
recent case of
Rosenberger v.
Rector and Visitors of
Univ. of Va., 515
U. S. 819 (1995), which held that the University of Virginia
could not discriminate on viewpoint in underwriting the speech of
student-run publications. We recognized that the government may act
on the basis of viewpoint "when the State is the speaker" or when
the State "disburses public funds to private entities to convey a
governmental message."
Id., at 833. But we explained that
the government may not act on viewpoint when it "does not itself
speak or subsidize transmittal of a message it favors but instead
expends funds to encourage a diversity of views from private
speakers."
Id., at 834. When the government acts as patron,
subsidizing the expression of others, it may not prefer one
lawfully stated view over another.
Rosenberger controls here. The NEA, like the student
activities fund in
Rosenberger, is a subsidy scheme created
to encourage expression of a diversity of views from private
speakers. Congress brought the NEA into being to help all Americans
"achieve a better understanding of the past, a better analysis of
the present, and a better view of the future." § 951(3). The NEA's
purpose is to "support new ideas" and "to help create and sustain
... a climate encouraging freedom of thought, imagination, and
inquiry." §§ 951(10), (7); see also S. Rep. No. 300, 89th Cong.,
1st Sess., 4 (1965) ("[T]he intent of this act should be the
encouragement of free inquiry and expression"); H. R. Rep. No.
99-274, p. 13 (1985) (Committee Report accompanying bill to
reauthorize and amend the NEA's governing statute) ("As the
Preamble of the act directs, the Endowment['s] programs should be
open and richly diverse, reflecting the ferment of ideas which has
always made this Nation strong and free"). Given this
614
congressional choice to sustain freedom of expression,
Ro
senberger teaches that the First Amendment forbids
decisions based on viewpoint popularity. So long as Congress
chooses to subsidize expressive endeavors at large, it has no
business requiring the NEA to turn down funding applications of
artists and exhibitors who devote their "freedom of thought,
imagination, and inquiry" to defying our tastes, our beliefs, or
our values. It may not use the NEA's purse to "suppres[s] ...
dangerous ideas."
Regan v.
Taxation with Representation
of Wash., supra, at 548 (internal quotation marks omitted).
The Court says otherwise, claiming to distinguish
Rosenberger on the ground that the student activities funds
in that case were generally available to most applicants, whereas
NEA funds are disbursed selectively and competitively to a choice
few.
Ante, at 586. But the Court in
Rosenberger
anticipated and specifically rejected just this distinction when it
held in no uncertain terms that "[t]he government cannot justify
viewpoint discrimination among private speakers on the economic
fact of scarcity." 515 U. S., at 835.8 Scarce money demands
choices, of course, but choices "on some acceptable [viewpoint]
neutral principle," like artistic excellence and artistic merit; 9
"nothing in our decision[s] in-
8 The Court's attempt to avoid
Rosenberger by describing
NEA funding in terms of competition, not scarcity, will not work.
Competition implies scarcity, without which there is no exclusive
prize to compete for; the Court's "competition" is merely a
surrogate for "scarcity."
9While criteria of "artistic excellence and artistic merit" may
raise intractable issues about the identification of artistic
worth, and could no doubt be used covertly to filter out unwanted
ideas, there is nothing inherently viewpoint discriminatory about
such merit-based criteria. We have noted before that an esthetic
government goal is perfectly legitimate. See
Metromedia,
Inc. v.
San Diego, 453 U. S. 490, 507-508
(1981) (plurality opinion). Decency and respect, on the other hand,
are inherently and facially viewpoint based, and serve no
legitimate and permissible end. The Court's assertion that the mere
fact that grants must be awarded according to artistic merit
precludes "absolute neutrality" on the part of the
615
dicate[s] that scarcity would give the State the right to
exercise viewpoint discrimination that is otherwise impermissible."
Ibid.; see also
Arkansas Ed. Television Comm'n v.
Forbes, 523 U.
S. 666, 676 (1998) (scarcity of air time does not justify
viewpoint-based exclusion of candidates from a debate on public
television; neutral selection criteria must be employed). If the
student activities fund at issue in
Rosenberger had awarded
competitive, merit-based grants to only 50%, or even 5%, of the
applicants, on the basis of "journalistic merit taking into
consideration the message of the newspaper," it is obvious beyond
peradventure that the Court would not have come out differently,
leaving the University free to refuse funding after considering a
publication's Christian perspective.10
A word should be said, finally, about a proposed alternative to
this failed analogy. As the Solicitor General put it
NEA,
ante, at 585, is therefore misdirected. It is not to
the point that the Government necessarily makes choices among
competing applications, or even that its judgments about artistic
quality may be branded as subjective to some greater or lesser
degree; the question here is whether the Government may apply
patently viewpoint-based criteria in making those choices.
10 JUSTICE SCALIA suggests that
Rosenberger turned not on
the distinction between government-as-speaker and
government-as-facilitator-ofprivate-speech, but rather on the fact
that "the government had established a limited public forum."
Ante, at 599. Leaving aside the proper application of forum
analysis to the NEA and its projects, I cannot agree that the
holding of
Rosenberger turned on characterizing its
metaphorical forum as public in some degree. Like this case,
Rosenberger involved viewpoint discrimination, and we have
made it clear that such discrimination is impermissible in all
forums, even nonpublic ones,
Cornelius v.
NAACP Legal
Defense &
Ed. Fund, Inc., 473 U. S. 788,806 (1985),
where, by definition, the government has not made public property
generally available to facilitate private speech,
Perry Ed.
Assn. v.
Perry Local Educators' Assn., 460 U. S. 37,46 (1983)
(defining a nonpublic forum as "[p]ublic property which is not by
tradition or designation a forum for public communication").
Accordingly,
Rosenberger's brief allusion to forum analysis
was in no way determinative of the Court's holding.
616
at oral argument, "there is something unique ... about the
Government funding of the arts for First Amendment purposes." Tr.
of Oral Arg. 27. However different the governmental patron may be
from the governmental speaker or buyer, the argument goes,
patronage is also singularly different from traditional regulation
of speech, and the limitations placed on the latter would be out of
place when applied to viewpoint discrimination in distributing
patronage. To this, there are two answers. The first, again, is
Rosenberger, which forecloses any claim that the NEA and the
First Amendment issues that arise under it are somehow unique. But
even if we had no
Rosenberger, and even if I thought the
NEA's program of patronage was truly singular, I would not hesitate
to reject the Government's plea to recognize a new, categorical
patronage exemption from the requirement of viewpoint neutrality. I
would reject it for the simple reason that the Government has
offered nothing to justify recognition of a new exempt
category.
The question of who has the burden to justify a categorical
exemption has never been explicitly addressed by this Court,
despite our recognition of the speaker and buyer categories in the
past. The answer is nonetheless obvious in a recent statement by
the Court synthesizing a host of cases on viewpoint discrimination.
"The First Amendment presumptively places this sort of
discrimination beyond the power of the government."
Simon
&
Schuster, Inc. v.
Members of N.
Y. State
Crime Victims Bd., 502 U. S. 105, 116
(1991). Because it takes something to defeat a presumption, the
burden is necessarily on the Government to justify a new exception
to the fundamental rules that give life to the First Amendment. It
is up to the Government to explain why a sphere of governmental
participation in the arts (unique or not) should be treated as
outside traditional First Amendment limits. The Government has not
carried this burden here, or even squarely faced it.
617
IV
Although I, like the Court, recognize that "facial challenges to
legislation are generally disfavored,"
FW/PBS, Inc. v.
Dallas, 493 U.
S. 215, 223 (1990), the proviso is the type of statute that
most obviously lends itself to such an attack. The NEA does not
offer a list of reasons when it denies a grant application, and an
artist or exhibitor whose subject raises a hint of controversy can
never know for sure whether the decency and respect criteria played
a part in any decision by the NEA to deny funding. Hence, the most
that we could hope for in waiting for an as-applied challenge would
be (a) a plaintiff whose rejected proposal raised some risk of
offense and was not aimed at exhibition in a forum in which decency
and respect might serve as permissible selection criteria, or (b) a
plaintiff who sought funding for a project that had been sanitized
to avoid rejection. But no one has denied here that the
institutional plaintiff, the National Association of Artists'
Organizations (NAAO), has representative standing on behalf of some
such potential plaintiffs. See App. 21-25 (declaration of NAAO's
Executive Director, listing examples of the potentially
objectionable works produced by several member organizations). We
would therefore gain nothing at all by dismissing this case and
requiring those individuals or groups to bring essentially the same
suit, restyled as an as-applied challenge raising one of the
possibilities just mentioned.
In entertaining this challenge, the Court finds § 954(d)(1)
constitutional on its face in part because there are "a number of
indisputably constitutional applications" for both the "decency"
and the "respect" criteria,
ante, at 584, and it is hard to
imagine "how 'decency' or 'respect' would bear on grant
applications in categories such as funding for symphony
orchestras,"
ante, at 583. There are circumstances in which
we have rejected facial challenges for similar reasons. "A facial
challenge to a legislative Act is, of course, the most difficult
challenge to mount successfully, since the challenger
618
must establish that no set of circumstances exists under which
the Act would be valid."
United States v.
Salerno,
481 U. S. 739,
745 (1987). But quite apart from any question that might be raised
about that statement as a general rule,l1 it is beyond question, as
the Court freely concedes, that it can have no application here, it
being well settled that the general rule does not limit challenges
brought under the First Amendment's speech clause.
There is an "exception to thee]
[capable-of-constitutionalapplication] rule recognized in our
jurisprudence [for] facial challenge[s] based upon First Amendment
free-speech grounds. We have applied to statutes restricting speech
a so-called 'overbreadth' doctrine, rendering such a statute
invalid in all its applications (i.
e., facially invalid) if
it is invalid in any of them."
Ada v.
Guam Society of
Obstetricians & Gynecologists, 506 U. S. 1011, 1012 (1992)
(SCALIA, J., dissenting from denial of certiorari); 12 see,
e.
g., Reno v.
American Civil Liberties Union, 521 U. S. 844 (1997)
(striking down decency provision of Communications Decency Act as
facially overbroad); id., at 893-894 (O'CONNOR, J., concurring in
judgment in part and dissenting in part) (declining to apply the
rule of
Salerno because the plaintiffs' claim arose under
the First Amendment);
Schad v.
Mount Ephraim, 452 U.
S., at 66 ("Because appellants' claims are rooted in the First
Amendment, they are entitled to ... raise an overbreadth
challenge") (internal quotation marks omitted);
Gooding v.
Wilson, 405 U.
S. 518, 521-522 (1972).13 Thus,
11 Cf.,
e. g., Planned Parenthood of Southeastern Pa. v.
Casey, 505 U.
S. 833, 895 (1992) (statute restricting abortion will be struck
down if, "in a large fraction of the cases in which [the statute]
is relevant, it will operate as a substantial obstacle to a woman's
choice to undergo an abortion").
12We have, however, recognized that "the overbreadth doctrine
does not apply to commercial speech."
Hoffman Estates v.
Flipside, Hoffman Estates, Inc., 455 U. S. 489, 497
(1982).
13 Cf.
United States v.
Salerno, 481 U. S. 739, 745 (1987)
("The fact that the Bail Reform Act might operate
unconstitutionally under some conceivable set of circumstances is
insufficient to render it wholly invalid, since
619
we have routinely understood the overbreadth doctrine to apply
where the plaintiff mounts a facial challenge to a law investing
the government with discretion to discriminate on viewpoint when it
parcels out benefits in support of speech. See,
e. g., City of
Lakewood v.
Plain Dealer Publishing Co., 486 U. S. 750, 759 (1988)
("[A] facial challenge lies whenever a licensing law gives a
government official or agency substantial power to discriminate
based on the content or viewpoint of speech by suppressing
disfavored speech or disliked speakers");
Forsyth County v.
Nationalist Movement, 505 U. S. 123 (1992) (applying
overbreadth doctrine to invalidate on its face an ordinance
allowing for content-based discrimination in the awarding of parade
permits).
To be sure, such a "facial challenge will not succeed unless the
statute is 'substantially' overbroad,"
New York State Club
Assn., Inc. v.
City of New York, 487 U. S. 1, 11 (1988), by
which we mean that "a law should not be invalidated for overbreadth
unless it reaches a substantial number of impermissible
applications,"
New York v.
Ferber, 458 U. S. 747, 771
(1982). But that is no impediment to invalidation here. The Court
speculates that the "decency" criterion might permissibly be
applied to applications seeking to create or display art in schools
14 or children's museums, whereas the "respect" criterion might
permissibly be applied to applications
we have not recognized an 'overbreadth' doctrine outside the
limited context of the First Amendment").
14 In placing such emphasis on the potential applicability of
the decency criterion to educational programs, the Court neglects
to point out the existence of § 954a, entitled "[a]ccess to the
arts through support of education," which is concerned specifically
with funding for arts education, especially in elementary and
secondary schools. It seems that the NEA's "mission" to promote
arts education,
ante, at 584, is carried out primarily
through § 954a, not § 954. While the decency standard might be
constitutionally permissible when applied to applications for
grants under § 954a, that standard does not appear to be relevant
to such applications at all; the decency and respect provision
appears in § 954(d), which governs grant applications under § 954,
not under § 954a.
620
seeking to create art that celebrates a minority, tribal, rural,
or inner-city culture. But even so, this is certainly a case in
which the challenged statute "reaches a substantial number of
impermissible applications," not one in which the statute's
"legitimate reach dwarfs its arguably impermissible applications."
Id., at 771, 773. On the contrary, nothing in the record
suggests that the grant scheme administered under the broad
authorization of the NEA's governing statute, see §§ 951, 954(c),
devotes an overwhelming proportion of its resources to schools and
ethnic commemoration. Since the decency and respect criteria may
not be employed in the very many instances in which the art seeking
a subsidy is neither aimed at children nor meant to celebrate a
particular culture, the statute is facially overbroad. Cf. City
of Lakewood, supra, at 766 ("[I]n a host of ... First
Amendment cases we have ... considered on the merits facial
challenges to statutes or policies that embodied discrimination
based on the content or viewpoint of expression, or vested
officials with open-ended discretion that threatened the same, even
where it was assumed that a properly drawn law could have greatly
restricted or prohibited the manner of expression or circulation at
issue"). Accordingly, the Court's observation that there are a
handful of permissible applications of the decency and respect
proviso, even if true, is irrelevant.15
15 The Court seemingly concedes that these isolated
constitutional applications are in fact of little matter. For after
speaking of specific applications that may be valid, the Court goes
on to admit that these "would not alone be sufficient to sustain
the statute."
Ante, at 585. The Court nonetheless upholds
the statute because it is not "persuaded that, in other
applications, the language of § 954(d)(1) itself will give rise to
the suppression of protected expression."
Ibid. This
conclusion appears to rest on some combination of (a) the Court's
competition rationale as distinguishing
Rosenberger and
justifying the discrimination, (b) the Court's reading of the
decency and respect proviso as something other than viewpoint
based, and (c) the Court's treatment of "taking into consideration"
as establishing no firm mandate subject to constitutional scrutiny.
As already explained,
621
The Government takes a different tack, arguing that overbreadth
analysis is out of place in this case because the "prospect for
'chilling' expressive conduct," which forms the basis for the
overbreadth doctrine, see,
e. g., Massachusetts v.
Oakes, 491 U.
S. 576, 584 (1989) (plurality opinion of O'CONNOR, J.), "is not
present here." Brief for Petitioners 20-21, n. 5. But that is
simply wrong. We have explained before that the prospect of a
denial of government funding necessarily carries with it the
potential to "chil[l] ... individual thought and expression."
Rosenberger, 515 U. S., at 835. In the world of NEA funding,
this is so because the makers or exhibitors of potentially
controversial art will either trim their work to avoid anything
likely to offend, or refrain from seeking NEA funding altogether.
Either way, to whatever extent NEA eligibility defines a national
mainstream, the proviso will tend to create a timid esthetic. And
either way, the proviso's viewpoint discrimination will "chill the
expressive activity of [persons] not before the court."
Forsyth
County, supra, at 129. See App. 22-24 (declaration of Charlotte
Murphy, Executive Director of respondent NAAO) (recounting how some
NAAO members have not applied for NEA grants for fear that their
work would be found indecent or disrespectful, while others have
applied but were "chilled in their applications and in the scope of
their projects" by the decency and respect provision). Indeed,
because NEA grants are often matched by funds from private donors,
the constraining impact of § 954(d)(1) is significantly
magnified:
"[T]he chilling effect caused by [the NEA's viewpointbased
selection criteria] is exacerbated by the practical realities of
funding in the artistic community. Plainly stated, the NEA occupies
a dominant and influential role in the financial affairs of the art
world in the United
however, fair reading of the text and attention to case law
foreclose reliance on any, let alone all, of these arguments.
622
States. Because the NEA provides much of its support with
conditions that require matching or co-funding from private
sources, the NEA's funding involvement in a project necessarily has
a multiplier effect in the competitive market for funding of
artistic endeavors .... [In addition,] most non-federal funding
sources regard the NEA award as an imprimatur that signifies the
recipient's artistic merit and value. NEA grants lend prestige and
legitimacy to projects and are therefore critical to the ability of
artists and companies to attract non-federal funding sources. Grant
applicants rely on the NEA well beyond the dollar value of any
particular grant." Bella Lewitzky Dance Foundation v.
Frohnmayer, 754 F. Supp. 774, 783 (CD Cal. 1991) (footnote
and internal quotation marks omitted).16
Since the decency and respect proviso of § 954(d)(1) is
substantially overbroad and carries with it a significant power to
chill artistic production and display, it should be struck down on
its face.17
16 See also,
e. g., 131 Congo Rec. 24808 (1985)
("[S]upport from the Endowmen[t] has always represented a 'Good
Housekeeping Seal' of approval which has helped grantees generate
non-Federal dollars for projects and productions").
17 I agree with the Court that § 954(d) is not
unconstitutionally vague.
Any chilling that results from imprecision in the drafting of
standards (such as "artistic excellence and artistic merit") by
which the Government awards scarce grants and scholarships is an
inevitable and permissible consequence of distributing prizes on
the basis of criteria dealing with a subject that defies exactness.
The necessary imprecision of artisticmerit-based criteria justifies
tolerating a degree of vagueness that might be intolerable when
applying the First Amendment to attempts to regulate political
discussion. Cf.
Arkansas Ed. Television Comm'n V.
Forbes, 523 U.
S. 666, 694-695 (1998) (STEVENS, J., dissenting). My problem is
not with the chilling that may naturally result from necessarily
open standards; it is with the unacceptable chilling of "dangerous
ideas,"
Speiser V.
Randall, 357 U. S. 513, 519
(1958), that naturally results from explicitly viewpoint-based
standards.
623
V
The Court does not strike down the proviso, however. Instead, it
preserves the irony of a statutory mandate to deny recognition to
virtually any expression capable of causing offense in any quarter
as the most recent manifestation of a scheme enacted to "create and
sustain ... a climate encouraging freedom of thought, imagination,
and inquiry." § 951(7).
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