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National Endowment for the Arts V. Finley: Painting a Grim Picture for Federally-Funded Art

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National Endowment for the Arts V. Finley: Painting a Grim Picture for Federally-Funded Art DePaul Law Review Volume 49 Issue 1 Fall 1999 Article 6 National Endowment for the Arts v. Finley: Painting a Grim Picture for Federally-Funded Art Karen M. Kowalski Follow this and additional works at: https://via.library.depaul.edu/law-review Recommended Citation Karen M. Kowalski, National Endowment for the Arts v. Finley: Painting a Grim Picture for Federally- Funded Art , 49 DePaul L. Rev. 217 (1999) Available at: https://via.library.depaul.edu/law-review/vol49/iss1/6 This Notes & Comments is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Law Review by an authorized editor of Via Sapientiae. For more information, please contact [email protected]. NATIONAL ENDOWMENT FOR THE ARTS v. FINLEY: PAINTING A GRIM PICTURE FOR FEDERALLY-FUNDED ART "[To simplify] is very nearly the whole of the higher artistic process; finding what conventions of form and what detail one can do with- out-and yet preserve the spirit of the whole."' 2 "Art is hard; physics is easy." INTRODUCTION The word "art" is somewhat a "term of art." Paintings of flowers, royal portraits, and amorphous sculptures are readily labeled as "art" by the American public and accepted as valuable. In contrast, people readily refuse to label as "art" creations such as nude photographs, live performances with homosexual subject matter, and pieces that are seemingly critical of religion. Oftentimes, the public is only willing to describe these works as "indecent art." For the past ten years, right- wing Congressmen and religious groups have battled to eliminate fed- eral funding of such controversial artwork.3 In National Endowment for the Arts v. Finley ("Finley"),4 the Supreme Court held constitu- tional a 1990 amendment authorizing the National Endowment for the Arts ("NEA") to consider "general standards of decency" and "re- spect for the diverse beliefs and values of the American public" when reviewing applications for artistic grants.5 By holding that it is consti- 1. Willa Cather in CAROLYN WARNER, TREASURY OF WOMEN'S QUOTATIONS 29 (1992). 2. Martyl in WARNER, supra note 1, at 29. 3. CARL F. STYCHIN, LAW'S DESIRE 11-13 (1995). 4. 118 S.Ct. 2168 (1998). 5. 20 U.S.C. § 954(d)(1) (1994). The full text of the amended section reads: (d) APPLICATION FOR PAYMENT; REGULATIONS AND PROCEDURES. 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 proce- dures 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 regula- tions and procedures shall clearly indicate that obscenity is without artistic merit, is not protected speech, and shall not be funded. Projects, produc- tions, workshops, and programs that are determined to be obscene are prohibited from receiving financial assistance under this subchapter from the National Endowment for the Arts. 218 DEPAUL LAW REVIEW [Vol. 49:217 tutionally permissible to utilize these viewpoint-based factors, the Court eased the way for the potential suppression of disfavored, un- conventional, and political speech typically protected under the First Amendment. This amendment does more than merely prioritize de- cency, it coerces artists to create politically neutral and homogenous artwork. The effect will be that Americans will have the opportunity to view only artwork that a senator finds acceptable, and this artwork will have little to do with our diverse reality. This precedent will sub- stantially limit artists' ability to convey to audiences their views about government, religion, and our human existence. Part I of this Note examines the background surrounding the amendment of NEA application review procedures, and includes a de- scription of the events that prompted the creation of 20 U.S.C. 954(d) ("the decency clause"). 6 Part I also explains the traditional constitu- tional doctrines upon which the Finley case was decided. 7 Part II of this Note describes the Finley decision and the contrasting rationales of the majority, concurring, and dissenting opinions. 8 Part III argues that artwork should not have been pigeon-holed into an existing con- stitutional doctrine because of its emotive, political, and educational value.9 Lastly, Part IV considers the implications of the Finley deci- sion for First Amendment doctrine, the subject matter of artwork, and other mediums, such as film and books. 10 I. BACKGROUND A. The History of the NEA and the Rise of Controversy Created in 1965,1" the NEA is one of three branches of the National Foundation on the Arts and the Humanities.' 2 The Foundation is Id. § 954(d). 6. See infra notes 11-153 and accompanying text. 7. Id. 8. See infra notes 154-246 and accompanying text. 9. See infra notes 247-333 and accompanying text. 10. See infra notes 334-368 and accompanying text. 11. JOSEPH ZEIGLER, ARTS IN CRISIS 16-17 (1994). Although the NEA was not created until 1965, interest in creating the organization materialized long before. CHARLES CHRISTOPHER MARK, RELUCTANT BUREAUCRATS: THE STRUGGLE TO ESTABLISH THE NATIONAL ENDOW- MENT FOR THE ARTS 15-18 (1991). Since the Nineteenth century, a bill to establish a National Council on the Arts was repeatedly introduced but never approved. Id. Presidents Buchanan, Harrison, and Roosevelt attempted to create such a council, but were unsuccessful. Id. Presi- dent Taft created the U.S. Commission of Fine Arts to oversee architecture in Washington, D.C., excluding Capitol Hill. Id. When President Kennedy's bill to create a council was defeated by Congress, he created an advisory body on the arts through an Executive Order. Id. Finally, in August of 1964, President Johnson signed a bill creating the National Council on the Arts. Id. 12. 20 U.S.C. § 953(a) (1994). 1999] FINLEY headed by the Chairperson of the NEA who is appointed by the Presi- dent of the United States, aided by the Senate, and serves a term of four years with eligibility for reappointment. 13 The Chairperson, with the advice of the National Council on the Arts ("the Council"), is au- thorized to give grants to groups or individuals to support artistic projects and productions. 14 The Council is comprised of members of the House of Representatives, members of the Senate, and fourteen people known for their artistic expertise who are appointed by the President with the advice of the Senate.15 The Council makes recom- mendations to the Chairperson1 6 as to whether to approve applica- tions for grants and the amount of financial assistance that should be allotted to each approved applicant.1 7 Although the Chairperson has the ultimate authority to approve grants, he or she may not approve or reject an application prior to receiving the recommendation of the Council.1 8 The Chairperson also has the authority to receive money and other property donated to the NEA. 19 13. Id. § 954(b)(1)-(2). 14. Id. § 954(c). 15. 20 U.S.C.A. § 955(b) (West Supp. 1999). For the most recent list of Council members, see The National Endowment for the Arts: Learn about the NEA (visited May 21, 1999) <http:// www.arts.endow.gov/learn/NCA/AboutNCA.html>. Council membership was in transition be- cause of legislative changes enacted in 1997. Id. The legislation required the appointment of six members of Congress to the Council to serve in an ex officio, non-voting capacity. Id. Begin- ning in September 1998, the overall size of the Council became 20 members. Id. 16. Jane Alexander, a Tony Award winning actress, served as Chairperson of the NEA from 1993 to October of 1997. Rick Lyman, Jane Alexander survives the NEA, THE SAN DIEGO UNION-TRIB., Apr. 26, 1998, at E9, available in 1998 WL 4005452. The new Chairperson of the NEA is William Ivey. Maria Recio, Arts patrons,organizations to establish own funding program Chairmansays foundation may aid controversialprojects, THE MILWAUKEE JOURNAL SENTINEL, May 11, 1999, at 10, available in 1999 WL 7681216. 17. 20 U.S.C. § 955(f) (1994). See The National Endowment for the Arts: Learn about the NEA, supra note 15 (reporting that the Council also gives input concerning procedures and criteria for application review, the agency's budget, funding priorities, the national arts in gen- eral, and also makes recommendations to the President concerning the National Medal of Arts). 18. 20 U.S.C. § 955(f) (1994). See Thomas Peter Kimbis, Planning to Survive: How the Na- tional Endowment for the Arts Restructured Itself to Serve a New Constituency, 21 COLUM.-VLA J.L. & ARTS 239, 246-47 (1997) (reporting that since 1996 the NEA has restructured its applica- tion review system). The new system is structured as follows: [T]he roles of the Council and Chairman remain the same, but the initial steps of re- view have been dramatically changed. First, applications go to a review group com- prised of experts in the appropriate artistic discipline. The review committees rank the applications in order of strength within their discipline. There are no longer individual program groups or program budgets. The instructions to the review committees states [sic] that no particular fiscal allocation, percentage or number of applications need be recommended for approval, although a high and low financial recommendation as to grant amount is expected. Id. at 246-47.
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