NEA decency furor lingers

The federal government’s decision late last week to settle out of court with four artists who sued when their NEA grants were denied has done little to resolve the Clinton Administration’s ambiguous stance on the arts. If anything, it’s only reinforced it, civil rights activists claim.

Even as federal officials announced that the government had agreed to pay $ 252,000 to the four — Karen Finley, John Fleck, Holly Hughes and Tim Miller — the National Assn. of Artists’ Organizations was filing a brief challenging the Justice Dept.’s decision to appeal a 1992 ruling that deemed the NEA’s decency clause unconstitutional.

“It’s very distressing that the Justice Dept. has continued to pursue this very aggressively,” noted Marjorie Heins, with the Arts Censorship Project of the American Civil Liberties Union. “That, and the way in which they settled with the four artists … suggests that this Administration is not willing to take a forthright position on the issue of artistic freedom.”

Heins, one of the attorneys who has handled the suit against the government, said that Justice Dept. attorneys decided to settle the portion of the suit dealing with the four artists simply because there was “a lot of evidence unearthed during the discovery phase.

“That is what motivated their decision to settle,” she said. “There were a lot of smoking guns found. (Former NEA director) John Frohnmayer’s decision to reject those artists’ grants was driven by political pressure. The government mis-describes the settlement as motivated by a realization that Frohnmayer had simply violated correct procedures.”

In a memo dated March 5, 1990, sent to Frohnmayer by then-President George Bush, Bush states: “I know you are as offended as I am by the attached depiction of Jesus Christ. I think you have been doing a superb job, so I send along this note not in any critical vein whatsoever, but simply to inquire if there isn’t anything we can do about excessive cases like this. I expect they get the grant, and then the so-called art comes after. But what is the story?”

In a later memo, dated June 19, 1990, Bush wrote: “I do not want to see censorship, yet I don’t believe a dime of taxpayer’s money should go into ‘art’ that is clearly and visibly filth. … We have to find a way to preserve the independence and creativity of the arts, yet at the same time, see that in egregious cases such as those mentioned above, the taxpayer will not subsidize filth and patently blasphemous material.”

Frohnmayer, in response, had urged Bush to let an independent commission, not Congress, investigate the NEA.

“Congress should not radically alter the Arts Endowment in the heat of this political controversy,” Frohnmayer wrote to Bush. “At least until it has heard from the (independent) commission. This might mean a reauthorization for only one year while the commission deliberates.”

Frohnmayer also urged Bush to resist the pressures that were being brought to bear from both the far right and left.

“Obscenity (which we all abhor) is already illegal in every jurisdiction,” Frohnmayer wrote. “Its existence or non-existence is ultimately for the courts — not the executive branch. This is the wisdom of separation of powers, which is the foundation of our constitutional government.”

Just where Clinton stands on this issue remains to be seen. He has yet to name someone to chair the NEA and, apparently under Atttorney General Janet Reno’s directive, is attempting to strike down the ruling that found the NEA’s decency clause to be unconstitutional. The NEA, meanwhile, begins its reauthorization hearings this month.

“This victory is bittersweet, for as we speak, the Clinton Administration is appealing (the) federal judge’s ruling…,” said Fleck, who will receive $ 11, 000.

Finley and Hughes will each receive $ 14,000 and Miller will receive $ 11,000 . The remainder of the settlement will pay legal and litigation costs accrued by the ACLU, the National Campaign for Freedom of Expression and the Center for Constitutional Rights.