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In Orwellian double-speak, the Court has sanctioned viewpoint discrimination and, at the same time, provided a basis for denying that any such discrimination has taken place. The goal is to disarm critics across the political spectrum.

In a convoluted and contradictory 8-1 decision issued June 25, the U.S. Supreme Court upheld a federal law requiring that the grant-making panels of the National Endowment for the Arts look beyond artistic excellence to consider "general standards of decency and respect for the diverse beliefs and values of the American people." Justice David Souter was the lone dissenter.

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The ruling in National Endowment for the Arts v. Finley ended eight years of litigation pitting the NEA and the Bush and Clinton administrations against four performance artists, the National Association of Artists Organizations (NAAO), the National Campaign for Freedom of Expression (NCFE), and the ACLU.

In 1990, the performance artists, who became known as the "NEA Four," sued for restitution of grants that had been awarded them by an NEA peer panel and then vetoed by the National Arts Council, the Endowment's governing board, for explicitly political reasons. Although the artists received an out-of-court cash settlement in 1993, they continued to press ahead with a challenge to the "decency and respect" clause on grounds that it was unconstitutionally vague and permitted viewpoint discrimination. The Supreme Court ruling reversed a 1996 determination by the Ninth Circuit Court of Appeals that the clause was unconstitutional.

Inserted into the NEA's enabling legislation late in 1990 as a sop to right-wing complaints about NEA-funded minority expression, the clause was an attempt at a milder alternative to language, introduced in 1989 by Jesse Helms, proscribing "depictions of homosexual or sadomasochistic activities, child pornography or individual sex acts." Apart from the uproar over one "blasphemous" photograph by Andres Serrano, the art that has made the NEA a political lightning rod is overwhelmingly the work of gay men, lesbians, and others challenging traditional gender roles. The NEA Four are two gay men, Tim Miller and John Fleck; a lesbian, Holly Hughes; and a heterosexual feminist, Karen Finley, who addresses AIDS and gender issues in her solo performances and plays.

Accordingly, the Supreme Court's affirmation of the decency standard was greeted with delight in most reactionary circles. "Today the Supreme Court validated the right of the American people to not pay for art that offends their sensibilities," said House Speaker Newt Gingrich. The Catholic League for Religious and Civil Rights hailed the decision, which they felt would strengthen their "efforts to halt NEA funding of the Manhattan Theatre Club, the producer of the gay Jesus play Corpus Christi." Robert Knight of the Family Research Council said that the ruling "sends a strong message to individuals who... paint homoerotic images in the name of art, and then ask taxpayers to foot the bill."

Newly installed NEA Chairman William Ivey said he was pleased with the outcome of the case. In effect, the ruling gives the NEA license to practice viewpoint discrimination and, at the same time, provides a basis for denying that any such discrimination has taken place. Potentially its double-speak could be cited to disarm critics across the political spectrum.

Justice Sandra Day O'Connor's majority opinion states that the NEA discriminates anyway when it evaluates potential grant recipients by applying such subjective criteria as excellence, and that other criteria such as decency should be permissible because "when the government is acting as a patron rather than a sovereign, the consequences of imprecision are not constitutionally severe."

O'Connor accepts the NEA's interpretation of the "decency and respect" clause as "merely hortatory" language that "stops well short of an absolute restriction...." Pointing out that "The 'decency and respect' criteria do not silence speakers by expressly 'threaten[ing] censorship of ideas....' Thus, we do not perceive a realistic danger that [the clause] will compromise First Amendment values." She further states that "If the NEA were to leverage its power to award subsidies on the basis of subjective criteria into a penalty on disfavored viewpoints, then we would confront a different case."

In a concurring opinion, conservative Justice Antonin Scalia, joined by Clarence Thomas, critiqued the majority view that the language held no force, stating that by dismissing it as merely advisory, the Court was gutting the provision. "The operation was a success," he quipped, "but the patient died." The venomously homophobic Concerned Women for America, one of the few national right-wing organizations disappointed by the ruling, took note of Scalia's reasoning in urging its members to redouble their efforts to abolish the NEA and wipe out queer art.

In direct opposition to Scalia's position, David Souter's rigorously argued, fiercely principled dissent reflected a commitment to the First Amendment that has all but vanished from the high court. Calling the "decency and respect" clause "the very model of viewpoint discrimination," Souter stated that "the Government has wholly failed to explain why the statute should be afforded an exemption from the fundamental rule of the First Amendment that viewpoint discrimination in the exercise of public authority over expressive activity is unconstitutional.... The Court's conclusions that the proviso is not viewpoint based, that it is not a regulation, and that the NEA may permissibly engage in viewpoint-based discrimination, are all patently mistaken."

While many in the arts community felt relieved that the clause was interpreted as merely advisory, the Court's failure to strike down the decency provision was widely denounced, and the contention that real viewpoint discrimination was now unlikely to occur was greeted with skepticism.

"Young artists know they live in a country where freedom of expression is unvalued," Tim Miller told the L.A. Times, pointing out that as budding artists "realize that to get federal arts funding you have to sing the Newt Gingrich hit parade," they choose other careers. "We are very disappointed in the Court's ruling...." said Gary Swartz, Executive Director of the National Campaign for Freedom of Expression. "It's hard to understand why the court did not recognize the very real chilling effect the clause has had."

Historically, those most familiar with the NEA's track record have frequently accused the agency of favoring the safe and the bland. In its 33 years of existence, during which it has dispensed $3 billion in grant money to thousands of individuals and organizations, the NEA has issued only a handful of grants that have ever been considered "controversial." At $98 million, the NEA's budget is 56% of its peak funding during the Bush Administration, with spending power below Carter-administration levels.

In recent years the agency has quietly decreased its funding of sexual minority expression that might rattle Congress. All categories of individual fellowships that once drew criticism have been eliminated. The agency no longer provides operating expenses for small arts organizations. Many of the issues that have swirled around the NEA are now academic.

Applied to a crippled agency in steady retreat from its original mission to facilitate artistic excellence without political bias, the NEA v. Finley ruling is itself of questionable decency, and shows no respect for the "diverse beliefs and values of the American people" especially that portion of the American people who are gay.