No, the rule is okay. It doesn't ban any type of art; it just tells the NEA to 'consider' decency. It's more of a suggestion than a strict command. When the government is handing out a limited amount of money, it's acting like a sponsor, not a police officer. As a sponsor, it gets more of a say in what it supports, and that's different from punishing people for their speech.

Yes, this rule is unconstitutional. It's clearly designed to let the government punish artists who express unpopular or offensive ideas. The whole point of the First Amendment is to protect speech the government doesn't like. Using funding to pick winners and losers based on their message is wrong and will make artists too scared to create challenging work.

No, the rule is totally constitutional, but for a stronger reason than the majority gave. The rule is definitely designed to discriminate based on viewpoint, and that's perfectly fine. The First Amendment says the government can't stop you from speaking, but it absolutely does not say the government has to pay for your speech. Not getting a grant isn't censorship; it just means taxpayers aren't funding your project.

Yes, it's okay for the NEA to think about decency and respect when giving money to artists. The rules don't stop the NEA from giving money to art that might not seem decent or respectful to everyone. The NEA just has to think about these things, but it doesn't have to follow a strict rule about them. If the NEA used these rules to unfairly target certain types of art, then it would be a different situation. The Court doesn't usually want to stop a law from being used at all unless it's really necessary.

The decency and respect rule is unfair because it lets the government choose which views it likes when giving out money. The government hasn't explained why this should be allowed since normally it's not okay for the government to do this. The Court is wrong to say the rule is okay. The rule goes too far and should be thrown out completely.

The rule is based on the content and viewpoint of the art, and that's perfectly fine. Congress didn't stop anyone from making art that goes against public beliefs and values or is indecent. The First Amendment and the rule against unclear laws don't apply to decisions about giving out money.

—and for the National Endowment for the Arts, in awarding grants on the basis of artistic excellence, to "take into consideration general standards of decency and respect for the diverse beliefs and values of the American Public."

As a result, "the Government may allocate competitive funding according to criteria that would be impermissible were direct regulation of speech or a criminal penalty at stake."

—we upheld an art funding program that required the National Endowment for the Arts (NEA) to use content-based criteria in making funding decisions.

Notably, "[i] t goes without saying that artistic expression lies within... First Amendment protection."

—noting the Court's prior formulations of "invidious viewpoint discrimination" in the provision of subsidies that "raises concern about the suppression of disfavored viewpoints" include a government's "leverag [ing] its power to award subsidies on the basis of subjective criteria into a penalty on disfavored viewpoints"; "aim [ing] at the suppression of dangerous ideas"; " …

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

"Facial invalidation is, manifestly, strong medicine that has been employed by the Court sparingly and only as a last resort."

Where, as here, a statute has been implemented in a defined context, an inquiring court may only consider the statute's constitutionality in that context; the court may not speculate about the validity of the law as it might be applied in different ways or on different facts.

Facial challenges, even those claiming an unconstitutional prior restraint of speech, carry a heavy burden.

Similarly, the Supreme Court has declined to apply forum analysis to a grant program operated by the National Endowment for the Arts (NEA), reasoning that "[t] he NEA's mandate is to make esthetic judgments" and the application of an "inherently content-based `excellence'threshold for NEA support. "

No. The statute requiring the NEA to consider 'decency and respect' is facially valid and does not inherently violate the First or Fifth Amendments. The provision does not impose a categorical requirement or compel the NEA to deny funding based on viewpoint; it merely adds considerations to the grant-making process. Unlike direct regulation or criminal penalties, the government has wide latitude when acting as a patron to set spending priorities and fund certain activities selectively. The competitive and subjective nature of arts funding differs from the subsidy in Rosenberger v. Rector, which was a limited public forum available to a wide range of speakers. Finally, while the terms are opaque, they are not unconstitutionally vague in the subsidy context, where the consequences of imprecision are less severe than in a regulatory or criminal scheme.

Yes. The statute is unconstitutional on its face because the 'decency and respect' provision is a quintessential example of viewpoint discrimination. The clear purpose of the statute was to prevent the funding of art that conveys an offensive message, thereby penalizing views that disrespect mainstream beliefs or values. The government may not use subsidies to suppress disfavored ideas. Under Rosenberger, when the government expends funds to encourage a diversity of views from private speakers, it may not discriminate based on viewpoint, even where funds are scarce. Because the statute will inevitably chill protected expression and is substantially overbroad, it should be struck down.

No. The statute is perfectly constitutional. The majority errs by interpreting the provision as merely 'advisory'; it plainly establishes viewpoint-based criteria that must be considered. However, such viewpoint discrimination in a subsidy program is not unconstitutional. The First Amendment prohibits Congress from 'abridging' the freedom of speech, which means diminishing or suppressing it, not declining to fund it. The denial of a taxpayer subsidy does not have a coercive effect and is not equivalent to suppression. The government is entitled to favor and disfavor points of view when it allocates funds, and doing so is not an abridgment of anyone's speech.

Yes, Section 954(d)(1) is facially valid. It neither inherently interferes with First Amendment rights nor violates constitutional vagueness principles because it does not preclude awards to projects that might be deemed 'indecent' or 'disrespectful,' nor place conditions on grants. The provision adds 'considerations' to the grant-making process and does not specify that those factors must be given any particular weight in reviewing an application. However, should the NEA leverage its power to award subsidies on the basis of subjective criteria into a penalty on disfavored viewpoints, a different case would be presented. Facial invalidation is strong medicine and is employed by the Court sparingly and only as a last resort.

The decency and respect provision on its face is quintessentially viewpoint based and discriminates in the disbursement of subsidies on viewpoint. The Government has failed to explain why this statute should be afforded an exemption from the fundamental First Amendment rule against viewpoint discrimination. The Court's conclusions that the provision is not viewpoint based, that it is not a regulation, and that the NEA may permissibly engage in viewpoint-based discrimination are mistaken. The statute is substantially overbroad and should be struck down on its face.

The statute establishes content- and viewpoint-based criteria upon which grant applications are to be evaluated, and that is perfectly constitutional. 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. The First Amendment has no application to funding, and what is true of the First Amendment is also true of the constitutional rule against vague legislation: it has no application to funding.

National Endowment for the Arts v. Finley

Case Podcast

Rule of Law:

The Legal Principle

Facts:

Procedural Posture:

How It Got Here

Issue:

Legal Question at Stake

Opinions:

Majority, Concurrences & Dissents

Analysis:

Why This Case Matters

Gunnerbot