Justice acts to strike NEA-decency ruling

The U.S. Justice Dept., just three weeks after Janet Reno was sworn in as Attorney General, has moved to strike down a 1992 court ruling that found the decency clause used by the National Endowment for the Arts to be unconstitutional.

In a 47-page appeal filed late last week, the Justice Dept. labeled U.S. District Court Judge Wallace Tashima’s ruling as unsound, countering that the NEA’s decency statute “does not present any serious constitutional questions.”

Tashima’s ruling was in response to a suit filed more than two years ago on behalf of four artists — Tim Miller, John Fleck, Holly Hughes and Karen Finley — whose grants were turned down by the NEA because of their political and/or sexual content.

At the time, the case was divided into two areas, with the constitutional merits of the NEA’s statute decided separately from the individual artists’ claims. The second phase of the case, involving the individual claims, has yet to make it to court.

The Justice Dept.’s appeal attacked Tashima’s ruling on several fronts, most notably saying that Congress had never directed the NEA chairperson to use “general standards of decency” among the standards of criteria to judge grant applications.

“Instead, Congress merely directed the (NEA) chairperson to take decency and respect for diverse beliefs ‘into consideration’ in establishing grant regulations,” the appeal said. “The straightforward meaning of such language is that the chairperson is directed to consider whether there is a problem and, if so, how it should be addressed. But the statute does not require that any criteria relating to decency be established.”

The government’s decision to appeal the ruling, in the wake of the Clinton administration’s seemingly pro-arts, pro-civil rights stance, took many arts advocates by surprise yesterday.

“This brief takes a position that is virtually identical to the position the Bush administration took on this issue, and it was a position that Bill Clinton criticized during the presidential campaign,” noted David Cole, an attorney with the Center for Constitutional Rights, one of the co-plaintiffs in the case. “We had really urged the Justice Dept. to take more time in deciding whether to file this appeal, given that Reno had just been approved a couple of weeks ago. But they declined to do that.”

In response, Justice Dept. spokesman Mark Sakaley said it would be “incorrect” to assume that there’s been any change in Clinton’s position.

“The rationale behind our decision to file an appeal was based on the fact that we believed Judge Tashima’s ruling was flawed,” Sakaley said. “We’re not talking about an issue of freedom of speech, but rather a question concerning the defense of the constitutional law. It’s our position that if we remove this unconstitutional ruling, it will act toward maximizing free speech.”

Yet he chose to not elaborate on that line of thinking, saying only that the decision to move forward with the appeal was made by “those authorized within the Justice Dept.” to do so. When asked whether Reno was personally aware of the appeal, Sakaley said he did not know.

White House officials had no comment on the situation.

When Tashima made his ruling in June 1992, he wrote that the NEA’s decency clause sought to “suppress speech that is offensive to some in society” and thus affected “a substantial amount of protected speech.”

In response, Justice Dept. officials wrote that Tashima’s conclusions were based only on theory, since the statute had not been applied “to the (plaintiffs) or, for that matter, to anyone.”

“Plaintiffs’… challenge must fail if there is even one way in which the statute could be implemented that is clearly constitutional,” the appeal stated. “Such a way exists: Forbidding grants to be given in support of material, intended for viewing by children, that would be obscene under the Miller standards. We do not argue that this is or would be the (NEA) chairperson’s preferred method of implementing the statute.”

As news of the appeal spread yesterday, many attorneys and arts advocates began to question whether it was pushed through a Justice Dept. that has remained in political limbo after the Clinton administration got a slow start in naming an attorney general. It was just over a week ago that Reno had called for the resignations of all U.S. Attorneys, an action that came to be labeled the “March massacre.”

Justice’s behavior noted

Marjorie Heins, an attorney for the American Civil Liberties Union (another co-plaintiff), noted that the Justice Dept.’s recent behavior has been very troubling.

“There is still the case with the four individual artists’ claims to be settled,” she said. “I felt that we had been very close to reaching an out-of-court settlement when suddenly the government seemed to change its mind. Now that part of the suit will go to court.

“Ideally I would hope the reason the settlement fell through and this appeal was filed, which seems to be a contradiction of Clinton’s stand, was due to administrative confusion,” Heins added. “I would also hope that this is not an indication that the Clinton administration is beginning to compromise itself on this issue.”

Yet with the NEA’s reauthorization coming up this year, Heins and others expressed concerns that this may be a first indication that the new administration is not be prepared to take a strong position on free expression.

“I want this to be a case of administrative confusion with Reno’s recent appointment, but if that’s not the case, then it could represent a serious and surprising blow to freedom of expression under this administration,” said California Confederation of the Arts’ Susan Hoffman. “What it tells us is that the arts cannot take anything for granted in this new administration.”

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