Parties: Nat'l Endowment for the Arts v. Finley
Date: 1998-06-25
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Paragraph: 19 - As the sponsors of §954(d)(1) noted in urging rejection of the Rohrabacher Amendment, "if we start down that road of prohibiting categories of expression, categories which are indeed constitutionally protected speech, where do we end? Where one Member's aversions end, others with different sensibilities and with different values begin.'' 136 Cong. Rec. 28624 (statement of Rep. Coleman); see also id., at 28663 (statement of Rep. Williams) (arguing that the Rohrabacher Amendment would prevent the funding of Jasper Johns' flag series, "The Merchant of Venice,'' "Chorus Line,'' "Birth of a Nation,'' and the "Grapes of Wrath''). In contrast, before the vote on §954(d)(1), one of its sponsors stated: "If we have done one important thing in this amendment, it is this. We have maintained the integrity of freedom of expression in the United States.''
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Paragraph: 45 - The First Amendment reads: "Congress shall make no law . . . abridging the freedom of speech.'' U.S. Const., Amdt. 1 (emphasis added). To abridge is "to contract, to diminish; to deprive of.'' T. Sheridan, A Complete Dictionary of the English Language (6th ed. 1796). With the enactment of §954(d)(1), Congress did not abridge the speech of those who disdain the beliefs and values of the American public, nor did it abridge indecent speech. Those who wish to create indecent and disrespectful art are as unconstrained now as they were before the enactment of this statute. Avant-garde artistes such as respondents remain entirely free to epater les bourgeois; they are merely deprived of the additional satisfaction of having the bourgeoisie taxed to pay for it. It is preposterous to equate the denial of taxpayer subsidy with measures ""aimed at the suppression of dangerous ideas.'''
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Paragraph: 47 - Nonetheless it is constitutional, as is the congressional determination to favor decency and respect for beliefs and values over the opposite. Because such favoritism does not "abridge'' anyone's freedom of speech.
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Paragraph: 73 - Given this congressional choice to sustain freedom of expression, Rosenberger teaches that the First Amendment forbids decisions based on viewpoint popularity. So long as Congress chooses to subsidize expressive endeavors at large, it has no business requiring the NEA to turn down funding applications of artists and exhibitors who devote their "freedom of thought, imagination, and inquiry'' to defying our tastes, our beliefs, or our values.
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Paragraph: 21 - N116* In contrast, the "decency and respect'' criteria do not silence speakers by expressly "threaten[ing] censorship of ideas.'' See ibid. Thus, we do not perceive a realistic danger that §954(d)(1) will compromise First Amendment values.
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Paragraph: 57 - It goes without saying that artistic expression lies within this First Amendment protection. See, e.g.,Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 569, 115 S.Ct. 2338, 2345, 132 L.Ed.2d 487 (1995) (remarking that examples of painting, music, and poetry are N90* "unquestionably shielded''); Ward v. Rock Against Racism, 491 U.S. 781, 790, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661 (1989) N91* ("Music, as a form of expression and communication, is protected under the First Amendment''); Schad v. Mount Ephraim, 452 U.S. 61, 65, 101 S.Ct. 2176, 2181, 68 L.Ed.2d 671 (1981) ("Entertainment, as well as political and ideological speech, is protected; motion pictures, programs broadcast by radio and television, and live entertainment, such as musical and dramatic works, fall within the First Amendment guarantee''); Kaplan v. California, 413 U.S. 115, 119-120, 93 S.Ct. 2680, 2684, 37 L.Ed.2d 492 (1973) (" [P]ictures, films, paintings, drawings, and engravings . . . have First Amendment protection''). The constitutional protection of artistic works turns not on the political significance that may be attributable to such productions, though they may indeed comment on the political, but simply on their expressive character, which falls within a spectrum of protected "speech'' extending outward from the core of overtly political declarations. Put differently, art is entitled to full protection because our "cultural life,'' just like our native politics, "rests upon [the] ideal'' of governmental viewpoint neutrality.
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Paragraph: 61 - N92* "Sexual expression which is indecent but not obscene is protected by the First Amendment,'' Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 126, 109 S.Ct. 2829, 2836, 106 L.Ed.2d 93 (1989), and except when protecting children from exposure to indecent material, see FCC v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978), the First Amendment has never been read to allow the government to rove around imposing general standards of decency, see, e.g.,Reno v. American Civil Liberties Union, 521 U.S. ----, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997) (striking down on its face a statute that regulated "indecency'' on the Internet). Because N93* "the normal definition of "indecent' . . . refers to nonconformance with accepted standards of morality,'' FCC v. Pacifica Foundation, supra, at 740, 98 S.Ct., at 3035, restrictions turning on decency, especially those couched in terms of "general standards of decency,'' are quintessentially viewpoint based: they require discrimination on the basis of conformity with mainstream mores.
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Paragraph: 25 - N94* We recognize, of course, that reference to these permissible applications would not alone be sufficient to sustain the statute against respondents' First Amendment challenge. But neither are we persuaded that, in other applications, the language of §954(d)(1) itself will give rise to the suppression of protected expression. Any content-based considerations that may be taken into account in the grant-making process are a consequence of the nature of arts funding.
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Paragraph: 57 - N239* N240* N241* ("Entertainment, as well as political and ideological speech, is protected; motion pictures, programs broadcast by radio and television, and live entertainment, such as musical and dramatic works, fall within the First Amendment guarantee''); Kaplan v. California, 413 U.S. 115, 119-120, 93 S.Ct. 2680, 2684, 37 L.Ed.2d 492 (1973) N242* (" [P]ictures, films, paintings, drawings, and engravings . . . have First Amendment protection'').
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Paragraph: 57 - The constitutional protection of artistic works turns not on the political significance that may be attributable to such productions, though they may indeed comment on the political, but simply on their expressive character, which falls within a spectrum of protected "speech" extending outward from the core of overtly political declarations. Put differently, art is entitled to full protection because our "cultural life,'' just like our native politics, "rests upon [the] ideal'' of governmental viewpoint neutrality. Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 641, 114 S.Ct. 2445, 2458-2459, 129 L.Ed.2d 497 (1994).
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Paragraph: 18 - N243* "[O]bscenity is without artistic merit, is not protected speech, and shall not be funded''
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