A new federal court decision is sufficient to prove the thesis of Robert Bork's new book
that we are "Slouching Toward Gomorrah." The decision also provides Congress with more than
adequate reason to hurry up and abolish the National Endowment for the Arts, and the Senate with
ammunition to reject confirmation of any more liberal judges.
In a 2-to-1 ruling, the Ninth U.S. Circuit Court of Appeals held that it is unconstitutional
for a government agency to consider "decency and respect" for American values when it doles out
the taxpayers' money. The decision itself is an assault on decency and respect for American
The winners in this case are Karen Finley, who made her fame by parading on stage
dressed in nothing but a layer of chocolate, and three others whose nude performances centered on
homosexual themes, plus, of course, the American Civil Liberties Union. The losers are the
American taxpayers and especially those foolish people who thought they could pass legislation in
1990 to "reform" the out-of-control National Endowment for the Arts.
After the American public was outraged over the N.E.A.'s awarding of taxpayer grants for
Robert Mapplethorpe's homoerotic images and Andres Serrano's photograph of a crucifix
immersed in his own urine, Congress tried to ban the flow of money to projects that are obscene,
sadomasochistic or homoerotic. The Democratic-controlled Congress watered that down to a
legislative plea to the N.E.A. to observe "general standards of decency," but that didn't satisfy the
The 1990 law required the N.E.A. to ensure that "artistic excellence and artistic merit are
the criteria by which applications are judged, taking into consideration general standards of
decency and respect for diverse beliefs and values of the American public." That's the language
that Judge James Browning held violates the First and Fifth Amendment rights of artists who
apply for taxpayer grants.
The New York Times gave the "chocolate-smeared woman" space on the Op-Ed page to
whine that the case (even though she won) has had a "chilling effect" on art. If she would put on
some clothes, maybe she wouldn't find the atmosphere so chilly.
Judge Browning looked to the legislative history to interpret the new law and discovered
that it "was specifically designed to prevent the funding of similar [e.g., Mapplethorpe and
Serrano] art works." He quoted the law's author, Rep. Paul Henry (R-MI), as telling Congress,
"Works which deeply offend the sensibilities of significant portions of the public ought not to be
supported with public funds."
Henry thought he was making a reasonable argument. But Judge Browning expressed
judicial horror at such narrow-mindedness!
In reality, N.E.A. officials took the new law with a large grain of salt. Instead of actually
applying "general standards of decency," N.E.A officials merely instructed the advisory panels
(which are made up of you-scratch-my-back-and-I'll-scratch-your-back friends of the grant-seeking "artists") to bring their own definitions of these terms "to the table" and make them "part
of the deliberative process."
But even that didn't satisfy Judge Browning! He expressed his constitutional worry that
the "decency and respect" standard is "vague" because it raises "the danger of arbitrary and
discriminatory application." The dissent replied that the statute is every bit as "vague" in
specifying that "artistic excellence and artistic merit are the criteria by which applications are
The federal court majority, however, ruled that it isn't "arbitrary" for the N.E.A. to claim
that nude and sexual on-stage performances have "artistic excellence," but it is "arbitrary" to say
that they are indecent. It takes a smart lawyer to wheedle his way out of such inconsistency, but
the Circuit Court Judge was equal to the challenge.
Judge Browning ruled that, since the litigants didn't challenge the "artistic excellence"
language, he didn't need to deal with it. Furthermore, he asserted, the N.E.A. advisory panels
have "expertise" in determining "artistic excellence," but have "no corresponding expertise in
applying such free-floating concepts as 'decency' and 'respect.' " He's probably right about that.
Dissenting Judge Andrew Kleinfeld argued that government art grants are not
"entitlements" (like Social Security or tax exemptions), or at least they shouldn't be. In fiscal
1994, only 88 out of 5,168 applicants for Visual Artists Fellowships received grants of the type
contested by the "N.E.A. Four," so it's obvious that arbitrary and subjective decisions were made.
The dissent stated what should be a clear principal of law: "That offensive or indecent
expression cannot be censored does not mean that the government has to pay for it." That is the
main argument of those who oppose funding for the N.E.A.
The case of Karen Finley et al v. National Endowment for the Arts should be the final nail
in the coffin of the N.E.A. Having a federal Ministry of Culture is bad enough, but forcing the
taxpayers to finance one that is forbidden to observe standards of decency, is downright obscene.