National Endowment for the Arts v. Finley

PETITIONER: National Endowment for the Arts
LOCATION: National Endowment for the Arts

DOCKET NO.: 97-371
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 524 US 569 (1998)
ARGUED: Mar 31, 1998
DECIDED: Jun 25, 1998

David D. Cole - Argued the cause for the respondents
Seth P. Waxman - Argued the cause for the petitioners

Facts of the case

The National Foundation on the Arts and Humanities Act entrusts the National Endowment for the Arts (NEA) with discretion to award financial grants to the arts. The NEA's broad decision guidelines are: "artistic and cultural significance," with emphasis on "creativity and cultural diversity professional excellence," and the encouragement of "public education and appreciation of the arts." In 1990, Congress amended the criteria by requiring the NEA to consider "artistic excellence and artistic merit taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public." After suffering a funding rejection, Karen Finely, along with three other performance artists and the National Association of Artists' Organizations, challenged the NEA's amended statutory review proceedings as unconstitutionally vague and discriminatory. After consecutive district and appellate court rulings in favor of Finley, the Supreme Court granted the NEA certiorari.


Are the statutory funding guidelines requiring the NEA to consider artistic excellence, merit, and general standards of "decency and respect," overly vague and conducive of viewpoint discrimination in violation of the First Amendment's freedom of expression guarantees?

Media for National Endowment for the Arts v. Finley

Audio Transcription for Oral Argument - March 31, 1998 in National Endowment for the Arts v. Finley

William H. Rehnquist:

We'll hear argument first this morning in Number 97-371, National Endowment for the Arts v. Karen Finley.

General Waxman.

Seth P. Waxman:

Mr. Chief Justice, and may it please the Court:

Since 1965, the National Endowment for the Arts has selectively provided funding, public funding to arts projects on the basis of aesthetic judgments in order to enrich the lives of all Americans and to expand public appreciation of art.

The question presented in this case is whether, although it thus expands the opportunities for artistic expression, Congress violated the First Amendment... that is, made a law abridging the freedom of speech... by directing that the NEA ensure, quote, that artistic excellence and artistic merit are the standards by which applications are judged, taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public.

Anthony M. Kennedy:

I'm sure the Court is as anxious as I am to get to the merits.

Do you think this case is justiciable?

You took the position in the district court that it was not.

What's the best case that makes it justiciable, if you think it is?

It seems remote.

Seth P. Waxman:

Justice Kennedy--

Anthony M. Kennedy:

It seems not concrete.

The plaintiff originally sued because he didn't get a grant.

Then he sued because he did.

I don't know what he wants to produce.

I don't know if he's been denied any specific rights.

Seth P. Waxman:


Anthony M. Kennedy:

I'm dealing with the question in the abstract, it seems.

Seth P. Waxman:

--Justice Kennedy, I think that the question of Article III justiciability, which of course must be measured at the time the suit was commenced or, really, in this case at the time that the pre-1990 claims were settled and all that was left in the case was the facial challenge to the 1990 act, is a close one.

In the district court we challenged Article III, the Article III justiciability issue both on the question that these plaintiffs lacked standing and also because, since the agency had adopted an interpretation that basically concluded that the 1990 language was satisfied merely by the creation of extremely diverse panels and that decency and respect were not expressly to be considered as independent factors at the grant-making stage, the agency was in the process.

Process was in effect no different than it had been before, other than the fact that the diversity of the panels was greater, and therefore our view was that the agency was not doing anything significantly different after the district court ruled than before it ruled, and conversely, if this Court were to agree with our statutory interpretation, the agency would be permitted, although not compelled, to continue to operate the program precisely the way it's operating now.

Now, this was not an issue that we raised on appeal or we raised in our petition in this Court, and I wish I could tell you exactly why that's the case, because I wasn't there, but I suspect that we concluded that there was some marginal concreteness, or some marginal justiciability here by the fact that before... between the time that the 1990 amendment was passed in November of '90 and the time that the district court issues, issued its injunction in June of 1992, we actually read to the panel members the language of the statute.

We then told them that they were to judge applications on the basis of artistic merit and artistic excellence, and that the other words, the words that follow taking into consideration, had been taken into consideration by the creation of extremely diverse panels in which each person from a diverse walk of life would bring his or her own individual sensibilities to that question, and we argued to the district court that, in fact, the case was not justiciability.

There was no injury and there was no redressability possible.

In fact, during the period between the time that the 1990 amendments were passed and the district court ruled, three of the five plaintiffs in this case received grants under the standard that they had concluded was unconstitutional and a fourth had benefited indirectly from a grant given to an organization.

Antonin Scalia:

General Waxman, let me see if I understand you.

I gather that you have no doubts on the Article III question if your interpretation of the statute is not correct--

Seth P. Waxman:

That is correct.

Antonin Scalia:

--in this facial challenge.

The statute which says, taking into account, requires that in passing upon the applications the panels, diverse though they may be, must take into account decency and the--