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Nat'l Endowment for the Arts v. Finley - 524 U.S. 569, 118 S. Ct. 2168 (1998)


Facial challenges to speech legislation are generally disfavored. To prevail, respondents must demonstrate a substantial risk that application of the provision will lead to the suppression of speech.


The National Foundation on the Arts and the Humanities Act of 1965 (20 USCS 951 et seq.) vested the National Endowment for the Arts (NEA) with discretion to award financial grants to support the arts. Applications for NEA grants were initially reviewed by advisory panels of experts in the relevant artistic field. The panels reported to the National Council on the Arts (Council), which, in turn, advised the NEA chairperson. A 1989 amendment directed the chairperson to insure that "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" (20 USCS 954(d)(1)). Before 954(d)(1) was enacted, an advisory panel recommended approval of the projects of four performance artists who applied for NEA grants, but the Council subsequently recommended disapproval, and funding was denied. The artists, asserting that the NEA had violated the Federal Constitution's First Amendment and various statutory provisions, filed suit in the district court for restoration of the recommended grants or reconsideration of the applications. After Congress enacted 954(d)(1), the artists--joined by an artists' association--amended the complaint to challenge 954(d)(1) as void for vagueness and impermissibly viewpoint based. The District Court denied the NEA's motion for judgment on the pleadings, granted summary judgment in favor of the artists on their facial constitutional challenge to 954(d)(1), and enjoined enforcement of 954(d)(1). The court of appeals, in affirming, concluded that 954(d)(1) gave rise to the danger of arbitrary and discriminatory application and thus was void for vagueness under the Constitution's First and Fifth Amendments. It also alternatively concluded that 954(d)(1) violated the First Amendment's prohibition of viewpoint-based restrictions on protected speech.


Were the grant-making procedures under the National Foundation on the Arts and Humanities Act, 20 U.S.C.S. § 954(d)(1) constitutional?




The Supreme Court held that the statute was facially valid because it neither inherently interfered with First Amendment rights nor violated constitutional vagueness principles. The legislation merely took "decency and respect" into consideration and was aimed at reforming procedures rather than precluding speech. The Court also held that the NEA expressly took diversity into account in the grant-making process. Additionally, the Court held that the NEA had limited resources which made it impossible not to deny money to a large amount of constitutionally protected expression. Thus, the Court found that the subjective selective process did not infringe on First or Fifth Amendment rights and reversed the grant of summary judgment in favor of the artists.

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