INDECENT PROPOSAL? March 31, 1998 The NewsHour with Jim Lehrer Transcript

---

Today, the Supreme Court heard arguments over the funding of art that some may consider indecent. What has been violated? Decency standards or constitutional rights?

---

A RealAudio version of this segment is available. NEWSHOUR LINKS: February 6, 1998: An Online Forum explores to benefits and pitfalls of corporate sponsorship of the arts. July 23, 1997: Jim Lehrer leads a debate on funding the NEA. March 10, 1997: A discussion on federal funding for the National Endowment for the Arts. January 29, 1996: NEA funding supported a Johannes Vermeer exhibit at the National Gallery Browse the NewsHour's coverage of Arts & Entertainment. OUTSIDE LINKS National Endowment for the Arts

MARGARET WARNER: From boys' choirs in Harlem to Indian basket weavers in California, the National Endowment for the Arts has helped support nearly 110,000 artists and projects in its 32 years of existence. Cleo Parker Robinson believes her dance ensemble in Denver would not have prospered without its NEA grant.

CLEO PARKER ROBINSON: We came from nothing, and we got support from the National Endowment, and that was a ripple effect.

MARGARET WARNER: Each year, Congress appropriates millions of dollars for the NEA to support theater, music, dance, and the visual and folk arts. The NEA makes grants to artistic companies and individuals, after a multi-step process that includes recommendations by panels of experts and members of the public.

Many endowment projects have been well received, but others have been extremely controversial. There was this 1995 theater performance in Minneapolis in which one actor cut another to draw blood. This 1989 exhibit of homoerotic photographs by the late Robert Mapplethorpe generated particular outrage among some members of Congress, including North Carolina Republican Senator Jesse Helms.

SEN. JESSE HELMS: I don't even acknowledge that it's art. I don't even acknowledge that the fellow who did was an artists. I think he was a jerk.

MARGARET WARNER: In 1990, Helms proposed--and Congress passed--legislation requiring the NEA to judge applicants not only on artistic merit, but also "taking into consideration general standards of decency and respect for the diverse reliefs and values of the American public." Later that year, the NEA turned down grant requests from four performance artists, saying their proposals didn't meet the new NEA decency standards. The projects included such topics as homosexuality and AIDS. In one, the artist was nude; in another, the artists urinated on stage.

The disappointed grant seekers were Holly Hughes; John Fleck; Tim Miller; and Karen Finley, shown here. These four performers, joined by the National Association of Artists' Organizations, challenged the law, arguing that the new congressional restrictions violated artists' rights of free speech and free expression. One year later, a federal judge in Los Angeles struck down the decency provision, saying the new standard was unconstitutionally vague. In 1996, the 9th U.S. Circuit Court of Appeals agreed. The appeals court said the decency provision violated the 1st Amendment by letting the government improperly discriminate based on the content of an artists work. Today, the Supreme Court heard arguments in the case. Afterwards, one of the artists suing the NEA, Tim Miller, spoke to reporters outside.

TIM MILLER: The United States, you know, the richest, most complex society in the world, is like sending a signal that we don't value individual voices because they're dangerous, because they might bring up stuff we don't want to look at. And so in that sense, I'm extremely ashamed of the NEA.

MARGARET WARNER: NEA officials and their lawyers did not speak to reporters afterwards.

MARGARET WARNER: Joining us now are David Cole, who argued before the Supreme Court today on behalf of the four artists. He is a staff attorney with the Center for Constitutional Rights and teaches law at Georgetown University. And Robert Peters, an attorney and president of Morality in Media, his organization filed a brief in support of the government's position.

Mr. Cole, what was the gist of your argument before the court today?

"The government can skew the marketplace of ideas and affect private freedom of expression not only by imposing penalties but also by selectively subsidizing private speakers."

DAVID COLE, Center for Constitutional Rights: Well, our claim was that Congress need not fund the art, but if it decides to fund private artistic expression, as it did in 1965, it can't impose ideological viewpoint-based restrictions on the art that it funds. And the decency and respect clause is precisely such a restriction. The Supreme Court has recognized that the government can skew the marketplace of ideas and affect private freedom of expression not only by imposing penalties but also by selectively subsidizing private speakers. And it's really an issue that I think applies across-the-board because it's hard to think of an area of private expression in this country that is not funded with taxpayer dollars. The print press gets mailing subsidies. The broadcast press gets licenses. Public Broadcasting gets taxpayer dollars directly. Public universities are paid for with taxpayer dollars. Non-profit groups get tax exemptions. If the government's arguing that it can--because it pays the piper, it can call the tune, were to be accepted, then all of these areas would be threatened, and the freedom of expression in each of these contexts would be subject to controls by the government through the power of the purse.

MARGARET WARNER: And you're saying that's unconstitutional?

DAVID COLE: And we say that violates the First Amendment.

MARGARET WARNER: All right. Mr. Peters, how do you respond to that main argument, that it amounts to violating the First Amendment?

ROBERT PETERS, Morality in Media: Well, as I understand Mr. Cole, that if the government, for example, were to fund a performance of the African ballet, it would also have to fund a hard core sex performance. As I understand Mr. Cole, if the NEA decided to fund an exhibit of degenerate art, and I use that phrase as Adolf Hitler used it in Germany, to ban all kinds of art because of viewpoint, I would say the NEA feels that for educational purposes Americans need to know something about the type of art that was banned totally in Nazi Germany. As I understand Mr. Cole's argument, if the NEA were to fund an exhibit of degenerate art, it would also have to fund art provided by current day Nazis. I don't think that's what our founding fathers intended the government to do. I think that our founding fathers in writing the First Amendment would have anticipated that, yes, government might someday choose to fund art, but just because it chooses to fund some art, it doesn't have to fund all art. And I hasten to add two things: This law does not prevent anyone from doing anything. It doesn't prevent an artist from funding indecent or otherwise offensive art, and it doesn't even require the NEA to refuse a grant because it's indecent or offensive. And I think common sense would say that there are works of art that may offend even a significant number of people that should, nevertheless, be funded by the NEA, and this law permits that.

MARGARET WARNER: What about that point, that there's nothing in these standards that says these artists can't perform, they can get funding from other sources? The government isn't banning their work.

DAVID COLE: Right. Well, that argument can be made about all funding situations. It's always the case that when the government takes away funds from someone because it doesn't like what that person is saying, the person is not completely suppressed from speech--from speaking. That argument was made with respect to public universities in the 50s and 60s, the same argument that is now being made with respect to the NEA. They said, people purged Communists from the public universities. And what they said was we don't care if they're Communists; we don't care if they express Communism; but they're not going to do it with taxpayer dollars. And so in state after state there were laws passed to purge Communists from the universities. And the Supreme Court held in the 60s--in a case called Kaieshian Vs. Board of Regents--that the principle of academic freedom means that although the government doesn't have to fund universities, if it chooses to fund a public university, it must respect the principle of academic freedom. And we're saying the same thing is true here. If it chooses to fund the arts, it must respect the principle of artistic freedom. Of course, we're not saying that they have to fund all art, or if they fund art on this point, they have to fund contra art. What--the point--

ROBERT PETERS: Well--

MARGARET WARNER: Let him finish, Mr. Peters. Then we'll get right back to you.

DAVID COLE: What we are saying is that the way that the NEA was run for the first 25 years, which was a program that made decisions based on artistic merit, is the way the Constitution demands the government to allocate funds. What they've done since 1990, unfortunately, or until we were successful in declaring the law unconstitutional, was to superimpose a filter, an ideological filter that says even if art is excellent, we're not going to fund it if it expresses the wrong message.

MARGARET WARNER: Okay. Mr. Peters.

The NEA: an "unregulated loose cannon body?"

ROBERT PETERS: Well, I've been somewhat of a student of the NEA for a good number of years, and I have won file folder filled with criticisms of the NEA, specific grants, that I term conservative, and oftentimes those objections are really moral grounds, although occasionally conservatives also fault the NEA for funding works that really in most people's opinion don't have serious artistic value. But interestingly, I also have a file folder full of criticisms of the NEA that have been leveled by basically very liberal critics. They aren't faulting the NEA for--on moral grounds. They're faulting the NEA for being political, for basing grant decisions not on artistic merit, as Mr. Cole asserts, but on the basis of political correctness and on whether in some cases even liberal critics have pointed out that the NEA seems often more concerned about the political viewpoints of the artists and perhaps their religious views than it is in art. So I would say that if we have a concern here about the NEA being an unregulated loose cannon body, they've been a loose cannon body since they were four. And I hasten to add, I'm not against public funding of arts, and I'm not against the NEA. But when you start talking about vagueness and political consideration, they've been with the NEA since day one, and the standards of decency has been defined by the Supreme Court, which is something that artistic excellence has not been defined, and, in my opinion, it's more vague and wide open than standards of decency.

MARGARET WARNER: All right. That raises--give me, what is the vagueness argument, the other argument you made Mr. Peters just raised?

DAVID COLE: Well, the vagueness argument is essentially that is very problematic to give a government official the power to allocate millions of dollars annually based on standards like general standards of decency and respect for the diverse beliefs and values of the American public. How is an NEA official going to assess what general standards of decency are? How are they going to determine what the American public's beliefs and values are? And what--

How does the NEA official assess what the general standards of decency are? How does it assess artistic merit?

MARGARET WARNER: Let me interrupt you for one second. I mean, how do they assess what's artistic? I mean, don't they make judgments?

DAVID COLE: Certainly, and they're trained to make artistic judgments in the same--in the same sense that at a public university setting, judgments are made based on academic merit. But it would be impermissible if in a public university setting, you deny tenure to a writer because his--a scholar because his work--written work was considered politically incorrect.

MARGARET WARNER: Okay.

ROBERT PETERS: Mr. Cole, one question would be: If you're correct that artistic excellence is such a well defined and understood concept, why is it that there have been so many criticisms against the NEA not based on moral grounds but on artistic grounds? I'm not for abolishing the NEA. I recognize that what is art may differ from one person to another. I can live with that uncertainty, and so can you, because you've done it. And yet, when it comes to standards of decency, which has been defined by the Supreme Court and upheld by the courts, suddenly you find that these are too vague or too uncertain to live with. I don't follow your argument, and I defy you to define what you mean by artistic excellence. You don't know and I don't know in all too many cases.

MARGARET WARNER: Mr. Peters, let me stay with you for a minute. The lower courts, however, did rule that they found it impermissibly vague. If you'd been at the Supreme Court today, what would you be arguing to them legally?

ROBERT PETERS: Well, one thing I'd be arguing is that some of the scenes that were shown on PBS, this station, shortly before our segment, you know, were edited. There were scenes which would have so outraged and shocked the citizens that your editors chose not to put them on the air. And one reason they did so is because there is a broadcast and decency law that has been upheld by the Supreme Court. It's been defined by the FCC. And, in my--and also recently in another Supreme Court, the court upheld the concept of indecency against a vagueness challenge.

MARGARET WARNER: We're about out of--

ROBERT PETERS: What more can we ask?

MARGARET WARNER: Mr. Cole, briefly, response on that?

DAVID COLE: Well, I think, first of all, the decency in the television setting is very different because of the access to children point. We're not claiming that anyone has to go see a work of art that they don't like; it's simply that we can't empower government officials to censor work on their basis of what decency means, or what the American beliefs and values are.

MARGARET WARNER: All right. Thanks, Mr. Cole, Mr. Peters, I'm sorry, we're out of time. Thank you both very much.

REGIONS TOPICS RECENT PROGRAMS ABOUT US FEEDBACK SUBSCRIPTIONS / FEEDS:

Support the kind of journalism done by the NewsHour...Become a member of your local PBS station.
PBS Online Privacy Policy Copyright ©1996- MacNeil/Lehrer Productions. All Rights Reserved.