NOTES & COMMENTS: The National Endowment for the Arts v. Finley: The Supreme Court's Artful Yet Indecent Proposal Skip over navigation
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Copyright (c) 1999 New York Law School Journal of Human Rights
New York Law School Journal of Human Rights

NOTES & COMMENTS: The National Endowment for the Arts v. Finley: The Supreme Court's Artful Yet Indecent Proposal


16 N.Y.L. Sch. J. Hum. Rts. 439


Barry J. Heyman


It is "the Supreme Court's obligation to maintain the Constitution as
something we the people can understand." 1

The federal government has been financially aiding American artists, organizations, and institutions through grants awarded by the National Endowment for the Arts ("NEA") since 1965. 2 In 1990, Congress mandated that the NEA take into consideration "general standards of decency and respect for the diverse beliefs and values of the American public when awarding grants." 3 This provision, known as the decency clause ("Decency Clause"), 4 became statutory criteria for awarding federal grants to artists. As a result, four artist applicants were denied funding. They subsequently contested the constitutionality of the Decency Clause. 5 Prior to the amended statute, which included the Decency Clause, an advisory panel had recommended approval of the applicants' art projects. 6 However, based on the passage of this clause, the panel subsequently recommended disapproval, and funding was denied. 7 The District Court granted summary judgment in favor of the plaintiffs. 8 The Ninth Circuit affirmed, holding that the amendment, on its face, impermissibly discriminated on the basis of viewpoint 9 and was void for vagueness under the First and Fifth Amendments. 10 On June 25, 1998, the Supreme Court reversed, and ruled that the Government can consider the "general standards of decency" when determining the propriety of a NEA grant. 11

This Comment will argue that by upholding both the First Amendment and the so-called "Decency Clause" in NEA v. ...
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