Can Congress Decide What Is Art?

High court hears case on whether US lawmakers can set decency standards for NEA-funded works.

A decade-long battle over art and morality reached the US Supreme Court march 31 as justices heard arguments about whether Congress can set standards of decency for works of art.

The case turns on the specific question of whether the federal government can be the arbiter of what is - or isn't - an appropriate form of expression when public funding is involved.

But behind the dispute lies a larger cultural war over the National Endowment for the Arts (NEA) and the kinds of values the nation stands for.

Liberals and many artists argue that great civilizations place an absolute value on free speech and new ideas, and that grants the NEA gives artists should be based on merit, not morality. A broader traditional family-values constituency feels that Uncle Sam should not support art that is deviant or grotesque to most Americans.

The controversy dates to the late 1980s, when conservative groups discovered federal funding supported controversial artists like the late Robert Mapplethorpe, considered a gifted photographer but whose collected work in an exhibit also contained erotic and graphic homosexual imagery.

Arts funding quickly became a cause clbre. By 1990 Congress passed a law requiring "general standards of decency" to guide the National Endowment for the Arts (NEA) - a step viewed by many scholars, poets, filmmakers, and free-speech advocates as damaging to artistic integrity and a potential move toward restricting other forms of expression.

Two lower courts threw out the decency standards as "vague."

In the hearing, the justices gave little indication of how they might rule. Their questions included whether artistic excellence and decency could be reasonably matched.

NARROWLY, the issue before the court is whether Congress exceeded its constitutional right in requiring decency standards. The basic legal question: Does the will of the people expressed through Congress take precedence over the claim of free speech?

The court could write a broad opinion that allows for uninhibited control of any expression using public money - a dramatic outcome. Or it could just as dramatically state that the government may never tell citizens what to say, even if federal funds are involved.

US Solicitor General Seth Waxman, arguing for the Justice Department, contended that the NEA's decency statute has had little practical effect, noting that three of the five plaintiffs themselves have received grants since filing their petition.

But Justice John Paul Stevens was skeptical. Referring to controversial artist Andres Serrano, whose work "Piss Christ" depicts a crucifix in a jar of urine, noted: Does "Serrano have the same chance of getting a grant after this statute? ... You will have a hard time convincing me this law has no effect."

The case originated with Karen Finley, a performance artist whose grant was used to spread her body with chocolate while repeating the phrase, "God is death." When Ms. Finley heard of the new decency standards in 1990, she and four other artists applied to the NEA for grants that seemed certain to be refused. Then-NEA-chairman John Frohmeyer did refuse them. But he also refused to back the decency-standard policy, something that contributed to his firing by President Bush.

The Clinton Justice Department has backed the NEA standards and objected to the ruling of the Ninth Circuit Court of Appeals, which said the standards discriminated based on nothing more than an alternative viewpoint.

Justice Department lawyers argue that the Ninth Circuit Court read too much into the standard by saying that every grant application needed to reflect decency standards. The government says, rather, that decency should simply be one factor in a funding decision.

This is a question the high court may have to sort out: Do NEA standards of decency apply to every grant? Or could the NEA appoint a panel of artists or citizens that would ensure decency?

For his part, Georgetown law professor David Cole, the lawyer for Finley, argued March 31 that the government can choose not to fund the arts if it wants. But if it does give money, it shouldn't restrict the form of expression. "This statute restricts concepts of decency and respect to a certain viewpoint," he said.

The standards issue has spilled well beyond the courts into testy standoffs on Capitol Hill and onto op-ed pages. Artists like playwright Arthur Miller and painter Jasper Johns have tangled with US senators such as Jesse Helms (R) of North Carolina and Alfonse D'Amato (R) of New York.

In their petitions, critics of the NEA policy argue that avante garde art has always seemed disturbing. Among the works considered outside mainstream values at the time: Michelangelo's "Last Judgment" and Auguste Rodin's "The Kiss."

Members of Congress reply with a simple point: The NEA is not censoring or restricting the creation of art. The art community can produce whatever it likes - so long as public money is not the vehicle for work deemed to be obscene.