JUSTICE O'CONNOR delivered the opinion of the Court.
The National Foundation on the Arts and the Humanities Act of 1965, as amended in 1990, 104 Stat. 1963, requires the Chairperson of the National Endowment for the Arts (NEA) to ensure that "artistic excellence and artistic merit are the criteria by which [grant] applications are judged, taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public." 20 U. S. C. § 954(d)(1). In this case, we review the Court of Appeals'
With the establishment of the NEA in 1965, Congress embarked on a "broadly conceived national policy of support for the . . . arts in the United States," see § 953(b), pledging federal funds to "help create and sustain not only a climate encouraging freedom of thought, imagination, and inquiry but also the material conditions facilitating the release of . . . creative talent." § 951(7). The enabling statute vests the NEA with substantial discretion to award grants; it identifies only the broadest funding priorities, including "artistic and cultural significance, giving emphasis to American creativity and cultural diversity," "professional excellence," and the encouragement of "public knowledge, education, understanding, and appreciation of the arts." See §§ 954(c)(1)—(10).
Applications for NEA funding are initially reviewed by advisory panels composed of experts in the relevant field of the arts. Under the 1990 amendments to the enabling statute, those panels must reflect "diverse artistic and cultural points of view" and include "wide geographic, ethnic, and minority representation," as well as "lay individuals who are knowledgeable about the arts." §§ 959(c)(1)—(2). The panels report to the 26-member National Council on the Arts (Council), which, in turn, advises the NEA Chairperson. The Chairperson has the ultimate authority to award grants but may not approve an application as to which the Council has made a negative recommendation. § 955(f).
Throughout the NEA's history, only a handful of the agency's roughly 100,000 awards have generated formal complaints about misapplied funds or abuse of the public's trust. Two provocative works, however, prompted public controversy in 1989 and led to congressional revaluation of the NEA's funding priorities and efforts to increase oversight of its grant-making procedures. The Institute of Contemporary Art at the University of Pennsylvania had used $30,000 of a visual arts grant it received from the NEA to fund a 1989 retrospective of photographer Robert Mapplethorpe's work. The exhibit, entitled The Perfect Moment, included homoerotic photographs that several Members of Congress condemned as pornographic. See, e. g., 135 Cong. Rec. 22372 (1989). Members also denounced artist Andres Serrano's work Piss Christ, a photograph of a crucifix immersed in urine. See, e. g., id., at 9789. Serrano had been awarded a $15,000 grant from the Southeast Center for Contemporary Art, an organization that received NEA support.
When considering the NEA's appropriations for fiscal year 1990, Congress reacted to the controversy surrounding the
In the 1990 appropriations bill, Congress also agreed to create an Independent Commission of constitutional law scholars to review the NEA's grant-making procedures and assess the possibility of more focused standards for public arts funding. The Commission's report, issued in September 1990, concluded that there is no constitutional obligation to provide arts funding, but also recommended that the NEA rescind the certification requirement and cautioned against legislation setting forth any content restrictions. Instead, the Commission suggested procedural changes to enhance the role of advisory panels and a statutory reaffirmation of "the high place the nation accords to the fostering of mutual respect for the disparate beliefs and values among us." See Independent Commission, Report to Congress on the National
Informed by the Commission's recommendations, and cognizant of pending judicial challenges to the funding limitations in the 1990 appropriations bill, Congress debated several proposals to reform the NEA's grant-making process when it considered the agency's reauthorization in the fall of 1990. The House rejected the Crane Amendment, which would have virtually eliminated the NEA, see 136 Cong. Rec. 28656-28657 (1990), and the Rohrabacher Amendment, which would have introduced a prohibition on awarding any grants that could be used to "promote, distribute, disseminate, or produce matter that has the purpose or effect of denigrating the beliefs, tenets, or objects of a particular religion" or "of denigrating an individual, or group of individuals, on the basis of race, sex, handicap, or national origin," id., at 28657-28664. Ultimately, Congress adopted the Williams/ Coleman Amendment, a bipartisan compromise between Members opposing any funding restrictions and those favoring some guidance to the agency. In relevant part, the Amendment became § 954(d)(1), which directs the Chairperson, in establishing procedures to judge the artistic merit of grant applications, to "tak[e] into consideration general standards of decency and respect for the diverse beliefs and values of the American public."
The four individual respondents in this case, Karen Finley, John Fleck, Holly Hughes, and Tim Miller, are performance artists who applied for NEA grants before § 954(d)(1) was enacted. An advisory panel recommended approval of respondents' projects, both initially and after receiving Frohnmayer's request to reconsider three of the applications. A majority of the Council subsequently recommended disapproval, and in June 1990, the NEA informed respondents that they had been denied funding. Respondents filed suit, alleging that the NEA had violated their First Amendment rights by rejecting the applications on political grounds, had failed to follow statutory procedures by basing the denial on criteria other than those set forth in the NEA's enabling statute, and had breached the confidentiality of their grant applications through the release of quotations to the press, in violation of the Privacy Act of 1974, 5 U. S. C. § 552(a). Respondents sought restoration of the recommended grants or reconsideration of their applications, as well as damages for the alleged Privacy Act violations. When Congress enacted § 954(d)(1), respondents, now joined by the National Association of Artists' Organizations (NAAO), amended
The District Court denied the NEA's motion for judgment on the pleadings, 795 F.Supp. 1457, 1463-1468 (CD Cal. 1992), and, after discovery, the NEA agreed to settle the individual respondents' statutory and as-applied constitutional claims by paying the artists the amount of the vetoed grants, damages, and attorney's fees. See Stipulation and Settlement Agreement, 6 Record, Doc. No. 128, pp. 3-5.
The District Court then granted summary judgment in favor of respondents on their facial constitutional challenge to § 954(d)(1) and enjoined enforcement of the provision. See 795 F. Supp., at 1476. The court rejected the argument that the NEA could comply with § 954(d)(1) by structuring the grant selection process to provide for diverse advisory panels. Id., at 1471. The provision, the court stated, "fails adequately to notify applicants of what is required of them or to circumscribe NEA discretion." Id., at 1472. Reasoning that "the very nature of our pluralistic society is that there are an infinite number of values and beliefs, and correlatively, there may be no national `general standards of decency,' " the court concluded that § 954(d)(1) "cannot be given effect consistent with the Fifth Amendment's due process requirement." Id., at 1471-1472 (citing Grayned v. City of Rockford, 408 U.S. 104, 108-109 (1972)). Drawing an analogy between arts funding and public universities, the court further ruled that the First Amendment constrains the NEA's grant-making process, and that because § 954(d)(1) "clearly reaches a substantial amount of protected speech," it is impermissibly overbroad on its face. 795 F. Supp., at 1476. The Government did not seek a stay of the District Court's injunction, and consequently the NEA has not applied § 954(d)(1) since June 1992.
A divided panel of the Court of Appeals affirmed the District Court's ruling. 100 F.3d 671 (CA9 1996). The majority
The dissent asserted that the First Amendment protects artists' rights to express themselves as indecently and disrespectfully as they like, but does not compel the Government to fund that speech. Id., at 684 (opinion of Kleinfeld, J.). The challenged provision, the dissent contended, did not prohibit the NEA from funding indecent or offensive art, but merely required the agency to consider the "decency and respect" criteria in the grant selection process. Id., at 689— 690. Moreover, according to the dissent's reasoning, the vagueness principles applicable to the direct regulation of speech have no bearing on the selective award of prizes, and
We granted certiorari, 522 U.S. 991 (1997), and now reverse the judgment of the Court of Appeals.
Respondents raise a facial constitutional challenge to § 954(d)(1), and consequently they confront "a heavy burden" in advancing their claim. Rust, supra, at 183. Facial invalidation "is, manifestly, strong medicine" that "has been employed by the Court sparingly and only as a last resort." Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973); see also FW/PBS, Inc. v. Dallas, 493 U.S. 215, 223 (1990) (noting that "facial challenges to legislation are generally disfavored"). To prevail, respondents must demonstrate a substantial risk that application of the provision will lead to the suppression of speech. See Broadrick, supra, at 615.
Respondents argue that the provision is a paradigmatic example of viewpoint discrimination because it rejects any artistic speech that either fails to respect mainstream values or offends standards of decency. The premise of respondents' claim is that § 954(d)(1) constrains the agency's ability to fund certain categories of artistic expression. The NEA, however, reads the provision as merely hortatory, and contends that it stops well short of an absolute restriction. Section 954(d)(1) adds "considerations" to the grant-making process; it does not preclude awards to projects that might be deemed "indecent" or "disrespectful," nor place conditions on grants, or even specify that those factors must be given
Furthermore, like the plain language of § 954(d), the political context surrounding the adoption of the "decency and respect" clause is inconsistent with respondents' assertion that the provision compels the NEA to deny funding on the basis of viewpoint discriminatory criteria. The legislation was a bipartisan proposal introduced as a counterweight to amendments aimed at eliminating the NEA's funding or substantially constraining its grant-making authority. See, e. g., 136 Cong. Rec. 28626, 28632, 28634 (1990). The Independent Commission had cautioned Congress against the adoption of distinct viewpoint-based standards for funding, and the Commission's report suggests that "additional criteria for selection, if any, should be incorporated as part of the selection process (perhaps as part of a definition of `artistic excellence'),
That § 954(d)(1) admonishes the NEA merely to take "decency and respect" into consideration and that the legislation was aimed at reforming procedures rather than precluding speech undercut respondents' argument that the provision inevitably will be utilized as a tool for invidious viewpoint discrimination. In cases where we have struck down legislation as facially unconstitutional, the dangers were both more evident and more substantial. In R. A. V. v. St. Paul, 505 U.S. 377 (1992), for example, we invalidated on its face a municipal ordinance that defined as a criminal offense the placement of a symbol on public or private property "`which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.' " See id., at 380. That provision set forth a clear penalty, proscribed views on particular "disfavored subjects," id., at 391, and suppressed "distinctive idea[s], conveyed by a distinctive message," id., at 393.
Respondents' claim that the provision is facially unconstitutional may be reduced to the argument that the criteria in § 954(d)(1) are sufficiently subjective that the agency could utilize them to engage in viewpoint discrimination. Given the varied interpretations of the criteria and the vague exhortation
The NEA's enabling statute contemplates a number of indisputably constitutional applications for both the "decency" prong of § 954(d)(1) and its reference to "respect for the diverse beliefs and values of the American public." Educational programs are central to the NEA's mission. See § 951(9) ("Americans should receive in school, background and preparation in the arts and humanities"); § 954(c)(5) (listing "projects and productions that will encourage public knowledge, education, understanding, and appreciation of the arts" among the NEA's funding priorities); National Endowment for the Arts, FY 1999 Application Guidelines 18-19 (describing "Education & Access" category); Brief for Twentysix Arts, Broadcast, Library, Museum and Publishing Amici Curiae 5, n. 2 (citing NEA Strategic Plan FY 1997—FY 2002, which identifies children's festivals and museums, art education, at-risk youth projects, and artists in schools as examples of the NEA's activities). And it is well established that "decency" is a permissible factor where "educational suitability" motivates its consideration. Board of Ed., Island Trees Union Free School Dist. No. 26 v. Pico, 457 U.S. 853, 871 (1982); see also Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 683 (1986) ("Surely it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse").
Permissible applications of the mandate to consider "respect for the diverse beliefs and values of the American public" are also apparent. In setting forth the purposes of the NEA, Congress explained that "[i]t is vital to a democracy to honor and preserve its multicultural artistic heritage."
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. The NEA has limited resources, and it must deny the majority of the grant applications that it receives, including many that propose "artistically excellent" projects. The agency may decide to fund particular projects for a wide variety of reasons, "such as the technical proficiency of the artist, the creativity of the work, the anticipated public interest in or appreciation of the work, the work's contemporary relevance, its educational value, its suitability for or appeal to special audiences (such as children or the disabled), its service to a rural or isolated community, or even simply that the work could increase public knowledge of an art form." Brief for Petitioners 32. As the dissent below noted, it would be "impossible to have a highly selective grant program without denying money to a large amount of constitutionally protected expression." 100 F. 3d, at 685 (opinion of Kleinfeld, J.). The "very assumption" of the NEA is that grants will be awarded according to the "artistic worth of competing applicants," and absolute neutrality is simply "inconceivable." Advo-
Respondents' reliance on our decision in Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995), is therefore misplaced. In Rosenberger, a public university declined to authorize disbursements from its Student Activities Fund to finance the printing of a Christian student newspaper. We held that by subsidizing the Student Activities Fund, the University had created a limited public forum, from which it impermissibly excluded all publications with religious editorial viewpoints. Id., at 837. Although the scarcity of NEA funding does not distinguish this case from Rosenberger, see id., at 835, the competitive process according to which the grants are allocated does. In the context of arts funding, in contrast to many other subsidies, the Government does not indiscriminately "encourage a diversity of views from private speakers," id., at 834. The NEA's mandate is to make esthetic judgments, and the inherently content-based "excellence" threshold for NEA support sets it apart from the subsidy at issue in Rosenberger — which was available to all student organizations that were "`related to the educational purpose of the University,' " id., at 824—and from comparably objective decisions on allocating public benefits, such as access to a school auditorium or a municipal theater, see Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 386 (1993); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 555 (1975), or the second class mailing privileges available to "`all newspapers and other periodical publications,' " see Hannegan v. Esquire, Inc., 327 U.S. 146, 148, n. 1 (1946).
Respondents do not allege discrimination in any particular funding decision. (In fact, after filing suit to challenge § 954(d)(1), two of the individual respondents received NEA grants. See 4 Record, Doc. No. 57, Exh. 35 (Sept. 30, 1991, letters from the NEA informing respondents Hughes and Miller that they had been awarded Solo Performance Theater
Finally, although the First Amendment certainly has application in the subsidy context, we note that the Government may allocate competitive funding according to criteria
The lower courts also erred in invalidating § 954(d)(1) as unconstitutionally vague. Under the First and Fifth Amendments, speakers are protected from arbitrary and discriminatory enforcement of vague standards. See NAACP v. Button, 371 U.S. 415, 432-433 (1963). The terms of the provision are undeniably opaque, and if they appeared in a criminal statute or regulatory scheme, they could raise substantial vagueness concerns. It is unlikely, however, that speakers will be compelled to steer too far clear of any "forbidden area" in the context of grants of this nature. Cf. Board of Airport Comm'rs of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 574 (1987) (facially invalidating a flat ban
In the context of selective subsidies, it is not always feasible for Congress to legislate with clarity. Indeed, if this statute is unconstitutionally vague, then so too are all Government programs awarding scholarships and grants on the basis of subjective criteria such as "excellence." See, e. g., 2 U. S. C. § 802 (establishing the Congressional Award Program to "promote initiative, achievement, and excellence among youths in the areas of public service, personal development, and physical and expedition fitness"); 20 U. S. C. § 956(c)(1) (providing funding to the National Endowment for the Humanities to promote "progress and scholarship in the humanities"); § 1134h(a) (authorizing the Secretary of Education to award fellowships to "students of superior ability selected on the basis of demonstrated achievement and exceptional promise"); 22 U. S. C. § 2452(a) (authorizing the award of Fulbright grants to "strengthen international cooperative relations"); 42 U. S. C. § 7382c (authorizing the Secretary of Energy to recognize teachers for "excellence in mathematics or science education"). To accept respondents' vagueness argument would be to call into question the constitutionality of these valuable Government programs and countless others like them.
It is so ordered.
Justice Scalia, with whom Justice Thomas joins, concurring in the judgment.
"The operation was a success, but the patient died." What such a procedure is to medicine, the Court's opinion in this case is to law. It sustains the constitutionality of 20 U. S. C. § 954(d)(1) by gutting it. The most avid congressional opponents of the provision could not have asked for more. I write separately because, unlike the Court, I think that § 954(d)(1) must be evaluated as written, rather than as distorted by the agency it was meant to control. By its terms, it establishes content- and viewpoint-based criteria upon which grant applications are to be evaluated. And that is perfectly constitutional.
The Statute Means What It Says
Section 954(d)(1) provides:
This is so apparent that I am at a loss to understand what the Court has in mind (other than the gutting of the statute) when it speculates that the statute is merely "advisory." Ante, at 581. General standards of decency and respect for Americans' beliefs and values must (for the statute says that the Chairperson "shall ensure" this result) be taken into account, see, e. g., American Heritage Dictionary 402 (3d ed. 1992) ("consider . . . [t]o take into account; bear in mind"), in evaluating all applications. This does not mean that those factors must always be dispositive, but it does mean that they must always be considered. The method of compliance proposed by the National Endowment for the Arts (NEA)— selecting diverse review panels of artists and nonartists that reflect a wide range of geographic and cultural perspectives—is so obviously inadequate that it insults the intelligence. A diverse panel membership increases the odds that, if and when the panel takes the factors into account, it will reach an accurate assessment of what they demand. But it
The statute requires the decency and respect factors to be considered in evaluating all applications—not, for example, just those applications relating to educational programs, ante, at 584, or intended for a particular audience, ante, at 585. Just as it would violate the statute to apply the artistic excellence and merit requirements to only select categories of applications, it would violate the statute to apply the decency and respect factors less than universally. A reviewer may, of course, give varying weight to the factors depending on the context, and in some categories of cases (such as the Court's example of funding for symphony orchestras, ante, at 583) the factors may rarely if ever affect the outcome; but § 954(d)(1) requires the factors to be considered in every case.
I agree with the Court that § 954(d)(1) "imposes no categorical requirement," ante, at 581, in the sense that it does not require the denial of all applications that violate general standards of decency or exhibit disrespect for the diverse beliefs and values of Americans. Cf. § 954(d)(2) ("[O]bscenity . . . shall not be funded"). But the factors need not be conclusive to be discriminatory. To the extent a particular applicant exhibits disrespect for the diverse beliefs and values of the American public or fails to comport with general standards of decency, the likelihood that he will receive a grant diminishes. In other words, the presence of the "tak[e] into consideration" clause "cannot be regarded as mere surplusage; it means something," Potter v. United
This unquestionably constitutes viewpoint discrimination.
More fundamentally, of course, all this legislative history has no valid claim upon our attention at all. It is a virtual certainty that very few of the Members of Congress who voted for this language both (1) knew of, and (2) agreed with, the various statements that the Court has culled from the Report of the Independent Commission and the floor debate (probably conducted on an almost empty floor). And it is wholly irrelevant that the statute was a "bipartisan proposal introduced as a counterweight" to an alternative proposal that would directly restrict funding on the basis of viewpoint. See ante, at 581-582. We do not judge statutes as
What The Statute Says Is Constitutional
The Court devotes so much of its opinion to explaining why this statute means something other than what it says that it neglects to cite the constitutional text governing our analysis. 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
One might contend, I suppose, that a threat of rejection by the only available source of free money would constitute coercion and hence "abridgment" within the meaning of the First Amendment. Cf. Norwood v. Harrison, 413 U.S. 455, 465 (1973). I would not agree with such a contention, which would make the NEA the mandatory patron of all art too
Section 954(d)(1) is no more discriminatory, and no less constitutional, than virtually every other piece of funding legislation enacted by Congress. "The Government can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternative program . . . ." Rust v. Sullivan, 500 U.S. 173, 193 (1991). As we noted in Rust, when Congress chose to establish the National Endowment for Democracy it was not constitutionally required to fund programs encouraging competing philosophies of government—an example of funding discrimination that cuts much closer than this one to the core of political speech which is the primary concern of the First Amendment. See id. , at 194. It takes a particularly high degree of chutzpah for the NEA to contradict this proposition, since the agency itself discriminates—and is required by law to discriminate—in favor of artistic (as opposed to scientific, or political, or theological) expression. Not all the common folk, or even all great minds, for that matter, think that is a good idea. In 1800, when John Marshall told John Adams that a recent immigration of Frenchmen would include talented artists, "Adams denounced all Frenchmen, but most especially `schoolmasters, painters, poets, &C.' He warned Marshall that the fine arts were like germs that infected healthy constitutions." J. Ellis, After the Revolution: Profiles of Early American Culture 36 (1979). Surely the NEA itself is nothing less than an institutionalized discrimination against that point of view. Nonetheless, it is constitutional,
Respondents, relying on Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 833 (1995), argue that viewpoint-based discrimination is impermissible unless the government is the speaker or the government is "disburs[ing] public funds to private entities to convey a governmental message." Ibid. It is impossible to imagine why that should be so; one would think that directly involving the government itself in the viewpoint discrimination (if it is unconstitutional) would make the situation even worse. Respondents are mistaken. It is the very business of government to favor and disfavor points of view on (in modern times, at least) innumerable subjects—which is the main reason we have decided to elect those who run the government, rather than save money by making their posts hereditary. And it makes not a bit of difference, insofar as either common sense or the Constitution is concerned, whether these officials further their (and, in a democracy, our) favored point of view by achieving it directly (having government-employed artists paint pictures, for example, or government-employed doctors perform abortions); or by advocating it officially (establishing an Office of Art Appreciation, for example, or an Office of Voluntary Population Control); or by giving money to others who achieve or advocate it (funding private art classes, for example, or Planned Parenthood).
The nub of the difference between me and the Court is that I regard the distinction between "abridging" speech and funding it as a fundamental divide, on this side of which the First Amendment is inapplicable. The Court, by contrast, seems to believe that the First Amendment, despite its words, has some ineffable effect upon funding, imposing constraints of an indeterminate nature which it announces (without troubling to enunciate any particular test) are not violated by the statute here—or, more accurately, are not violated by the quite different, emasculated statute that it imagines. "[T]he Government," it says, "may allocate competitive funding according to criteria that would be impermissible were direct regulation of speech or a criminal penalty at stake," ante, at 587-588. The Government, I think, may allocate both competitive and noncompetitive funding ad libitum, insofar as the First Amendment is concerned.
Finally, what is true of the First Amendment is also true of the constitutional rule against vague legislation: it has no application to funding. Insofar as it bears upon First Amendment concerns, the vagueness doctrine addresses the problems that arise from government regulation of expressive conduct, see Grayned v. City of Rockford, 408 U.S. 104, 108-109 (1972), not government grant programs. In the former context, vagueness produces an abridgment of lawful speech; in the latter it produces, at worst, a waste of money. I cannot refrain from observing, however, that if the vagueness doctrine were applicable, the agency charged with making grants under a statutory standard of "artistic excellence"—and which has itself thought that standard met by everything from the playing of Beethoven to a depiction of
* * *
In its laudatory description of the accomplishments of the NEA, ante, at 574, the Court notes with satisfaction that "only a handful of the agency's roughly 100,000 awards have generated formal complaints," ibid. The Congress that felt it necessary to enact § 954(d)(1) evidently thought it much more noteworthy that any money exacted from American taxpayers had been used to produce a crucifix immersed in urine or a display of homoerotic photographs. It is no secret that the provision was prompted by, and directed at, the funding of such offensive productions. Instead of banning the funding of such productions absolutely, which I think would have been entirely constitutional, Congress took the lesser step of requiring them to be disfavored in the evaluation of grant applications. The Court's opinion today renders even that lesser step a nullity. For that reason, I concur only in the judgment.
Justice Souter, dissenting.
The question here is whether the italicized segment of this statute is unconstitutional on its face: "[A]rtistic excellence and artistic merit are the criteria by which applications [for grants from the National Endowment for the Arts (NEA)] are judged, taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public. " 20 U. S. C. § 954(d) (emphasis added). It is.
The decency and respect proviso mandates viewpointbased decisions in the disbursement of Government subsidies, and the Government has wholly failed to explain why the statute should be afforded an exemption from the fundamental
"If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Texas v. Johnson, 491 U.S. 397, 414 (1989). "[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message [or] its ideas," Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95 (1972), which is to say that "[t]he principle of viewpoint neutrality . . . underlies the First Amendment," Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 505 (1984). Because this principle applies not only to affirmative suppression of speech, but also to disqualification for government favors, Congress is generally not permitted to pivot discrimination against otherwise protected speech on the offensiveness or unacceptability of the views it expresses. See, e. g., Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995) (public university's student activities funds may not be disbursed on viewpoint-based terms); Lamb's Chapel v. Center Moriches
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 (1995) (remarking that examples of painting, music, and poetry are "unquestionably shielded"); Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989) ("Music, as a form of expression and communication, is protected under the First Amendment"); Schad v. Mount Ephraim, 452 U.S. 61, 65 (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 (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,
When called upon to vindicate this ideal, we characteristically begin by asking "whether the government has adopted a regulation of speech because of disagreement with the message it conveys. The government's purpose is the controlling consideration." Ward v. Rock Against Racism, supra, at 791 (citation omitted). The answer in this case is damning. One need do nothing more than read the text of the statute to conclude that Congress's purpose in imposing the decency and respect criteria was to prevent the funding of art that conveys an offensive message; the decency and respect provision on its face is quintessentially viewpoint based, and quotations from the Congressional Record merely confirm the obvious legislative purpose. In the words of a cosponsor of the bill that enacted the proviso, "[w]orks which deeply offend the sensibilities of significant portions of the public ought not to be supported with public funds." 136 Cong. Rec. 28624 (1990).
In the face of such clear legislative purpose, so plainly expressed, the Court has its work cut out for it in seeking a
The Court says, first, that because the phrase "general standards of decency and respect for the diverse beliefs and values of the American public" is imprecise and capable of multiple interpretations, "the considerations that the provision introduces, by their nature, do not engender the kind of directed viewpoint discrimination that would prompt this Court to invalidate a statute on its face." Ante, at 583. Unquestioned case law, however, is clearly to the contrary.
"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 (1989), and except when protecting children from exposure to indecent material, see FCC v. Pacifica Foundation, 438 U.S. 726 (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. 844 (1997) (striking down on its face a statute that regulated "indecency" on the Internet). Because "the normal definition of `indecent' . . . refers to nonconformance with accepted standards of morality," FCC v. Pacifica Foundation, supra, at 740, 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. The Government's contrary suggestion that the NEA's decency standards restrict only the "form, mode, or style" of artistic expression, not the underlying viewpoint or message, Brief for Petitioners 39-41, may be a tempting abstraction (and one not lacking in support, cf. Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 83-84 (1983) (Stevens, J., concurring in judgment)). But here it suffices to realize that "form, mode, or style" are not subject to abstraction
Just as self-evidently, a statute disfavoring speech that fails to respect America's "diverse beliefs and values" is the very model of viewpoint discrimination; it penalizes any view disrespectful to any belief or value espoused by someone in the American populace. Boiled down to its practical essence, the limitation obviously means that art that disrespects the ideology, opinions, or convictions of a significant segment of the American public is to be disfavored, whereas art that reinforces those values is not. After all, the whole point of the proviso was to make sure that works like Serrano's ostensibly blasphemous portrayal of Jesus would not be funded, see supra, at 603, while a reverent treatment, conventionally respectful of Christian sensibilities, would not run afoul of the law. Nothing could be more viewpoint based than that. Cf. Rosenberger, 515 U. S., at 831 (a statute targeting a "prohibited perspective, not the general subject matter" of religion is viewpoint based); United States v. Eichman, 496 U.S. 310, 317 (1990) (striking down anti-flagburning
Another alternative for avoiding unconstitutionality that the Court appears to regard with some favor is the Government's argument that the NEA may comply with § 954(d) merely by populating the advisory panels that analyze grant applications with members of diverse backgrounds. See ante, at 577, 581. Would that it were so easy; this asserted implementation of the law fails even to "reflec[t] a plausible construction of the plain language of the statute." Rust v. Sullivan, 500 U.S. 173, 184 (1991).
The Government notes that § 954(d) actually provides that "[i]n establishing . . . regulations and procedures, the Chairperson [of the NEA] shall ensure that (1) artistic excellence and artistic merit are the criteria by which applications are judged, taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public." According to the Government, this language requires decency and respect to be considered not in judging applications, but in making regulations. If, then, the Chairperson takes decency and respect into consideration through regulations ensuring diverse panels, the statute is satisfied. But it would take a great act of will to find any plausibility in this reading. The reference to considering decency and respect occurs in the subparagraph speaking to the "criteria by which applications are judged," not in the preamble directing the Chairperson to adopt regulations; it is in judging applications that decency and respect are most obviously to be considered. It is no surprise, then, that the
The Government offers a variant of this argument in suggesting that even if the NEA must take decency and respect into account in the active review of applications, it may satisfy the statute by doing so in an indirect way through the natural behavior of diversely constituted panels. This, indeed, has apparently been the position of the Chairperson of the NEA since shortly after the legislation was first passed. But the problems with this position are obvious. First, it defies the statute's plain language to suggest that the NEA complies with the law merely by allowing decency and respect to have their way through the subconscious inclinations of panel members. "[T]aking into consideration" is a conscious activity. See Webster's New International Dictionary 2570 (2d ed. 1949) (defining "take into consideration" as "[t]o make allowance in judging for"); id., at 569 (defining "consideration" as the "[a]ct or process of considering; continuous and careful thought; examination; deliberation; attention"); id., at 568 (defining "consider" as "to think on with care . . . to bear in mind"). Second, even assuming that diverse panel composition would produce a sufficient response to the proviso, that would merely mean that selection for decency and respect would occur derivatively through the inclinations of the panel members, instead of directly through the intentional application of the criteria; at the end of the day, the proviso would still serve its purpose to screen out offending artistic works, and it would still be unconstitutional. Finally, a less obvious but equally dispositive response
A third try at avoiding constitutional problems is the Court's disclaimer of any constitutional issue here because "[§] 954(d)(1) adds `considerations' to the grant-making process; it does not preclude awards to projects that might be deemed `indecent' or `disrespectful,' nor place conditions on grants, or even specify that those factors must be given any particular weight in reviewing an application." Ante, at 580-581. Since "§ 954(d)(1) admonishes the NEA merely to take `decency and respect' into consideration," ante, at 582, not to make funding decisions specifically on those grounds, the Court sees no constitutional difficulty.
That is not a fair reading. Just as the statute cannot be read as anything but viewpoint based, or as requiring nothing more than diverse review panels, it cannot be read as tolerating awards to spread indecency or disrespect, so long as the review panel, the National Council on the Arts, and the Chairperson have given some thought to the offending qualities and decided to underwrite them anyway. That, after all, is presumably just what prompted the congressional outrage in the first place, and there was nothing naive about the Representative who said he voted for the bill because it does "not tolerate wasting Federal funds for sexually explicit photographs [or] sacrilegious works." 136 Cong. Rec. 28676 (1990).
A second basic strand in the Court's treatment of today's question, see ante, at 585-587, and the heart of Justice Scalia's, see ante, at 595-599, in effect assume that whether or not the statute mandates viewpoint discrimination, there is no constitutional issue here because government art subsidies fall within a zone of activity free from First Amendment restraints. The Government calls attention to the roles of government-as-speaker and government-as-buyer, in which the government is of course entitled to engage in viewpoint
The Government freely admits, however, that it neither speaks through the expression subsidized by the NEA,
The division is reflected quite clearly in our precedents. Drawing on the notion of government-as-speaker, we held in Rust v. Sullivan, 500 U. S., at 194, that the Government was entitled to appropriate public funds for the promotion of particular choices among alternatives offered by health and social service providers (e. g., family planning with, and without, resort to abortion). When the government promotes a particular governmental program, "it is entitled to define the limits of that program," and to dictate the viewpoint expressed by speakers who are paid to participate in it. Ibid.
Our most thorough statement of these principles is found in the recent case of Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995), which held that the University of Virginia could not discriminate on viewpoint in underwriting the speech of student-run publications. We recognized that the government may act on the basis of viewpoint "when the State is the speaker" or when the State "disburses public funds to private entities to convey a governmental message." Id., at 833. But we explained that the government may not act on viewpoint when it "does not itself speak or subsidize transmittal of a message it favors but instead expends funds to encourage a diversity of views from private speakers." Id., at 834. When the government acts as patron, subsidizing the expression of others, it may not prefer one lawfully stated view over another.
Rosenberger controls here. The NEA, like the student activities fund in Rosenberger, is a subsidy scheme created to encourage expression of a diversity of views from private speakers. Congress brought the NEA into being to help all Americans "achieve a better understanding of the past, a better analysis of the present, and a better view of the future." § 951(3). The NEA's purpose is to "support new ideas" and "to help create and sustain . . . a climate encouraging freedom of thought, imagination, and inquiry." §§ 951(10), (7); see also S. Rep. No. 300, 89th Cong., 1st Sess., 4 (1965) ("[T]he intent of this act should be the encouragement of free inquiry and expression"); H. R. Rep. No. 99-274, p. 13 (1985) (Committee Report accompanying bill to reauthorize and amend the NEA's governing statute) ("As the Preamble of the act directs, the Endowment[`s] programs should be open and richly diverse, reflecting the ferment of ideas which has always made this Nation strong and free"). Given this
The Court says otherwise, claiming to distinguish Rosenberger on the ground that the student activities funds in that case were generally available to most applicants, whereas NEA funds are disbursed selectively and competitively to a choice few. Ante, at 586. But the Court in Rosenberger anticipated and specifically rejected just this distinction when it held in no uncertain terms that "[t]he government cannot justify viewpoint discrimination among private speakers on the economic fact of scarcity." 515 U. S., at 835.
A word should be said, finally, about a proposed alternative to this failed analogy. As the Solicitor General put it
The question of who has the burden to justify a categorical exemption has never been explicitly addressed by this Court, despite our recognition of the speaker and buyer categories in the past. The answer is nonetheless obvious in a recent statement by the Court synthesizing a host of cases on viewpoint discrimination. "The First Amendment presumptively places this sort of discrimination beyond the power of the government." Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U.S. 105, 116 (1991). Because it takes something to defeat a presumption, the burden is necessarily on the Government to justify a new exception to the fundamental rules that give life to the First Amendment. It is up to the Government to explain why a sphere of governmental participation in the arts (unique or not) should be treated as outside traditional First Amendment limits. The Government has not carried this burden here, or even squarely faced it.
Although I, like the Court, recognize that "facial challenges to legislation are generally disfavored," FW/PBS, Inc. v. Dallas, 493 U.S. 215, 223 (1990), the proviso is the type of statute that most obviously lends itself to such an attack. The NEA does not offer a list of reasons when it denies a grant application, and an artist or exhibitor whose subject raises a hint of controversy can never know for sure whether the decency and respect criteria played a part in any decision by the NEA to deny funding. Hence, the most that we could hope for in waiting for an as-applied challenge would be (a) a plaintiff whose rejected proposal raised some risk of offense and was not aimed at exhibition in a forum in which decency and respect might serve as permissible selection criteria, or (b) a plaintiff who sought funding for a project that had been sanitized to avoid rejection. But no one has denied here that the institutional plaintiff, the National Association of Artists' Organizations (NAAO), has representative standing on behalf of some such potential plaintiffs. See App. 21-25 (declaration of NAAO's Executive Director, listing examples of the potentially objectionable works produced by several member organizations). We would therefore gain nothing at all by dismissing this case and requiring those individuals or groups to bring essentially the same suit, restyled as an as-applied challenge raising one of the possibilities just mentioned.
In entertaining this challenge, the Court finds § 954(d)(1) constitutional on its face in part because there are "a number of indisputably constitutional applications" for both the "decency" and the "respect" criteria, ante, at 584, and it is hard to imagine "how `decency' or `respect' would bear on grant applications in categories such as funding for symphony orchestras," ante, at 583. There are circumstances in which we have rejected facial challenges for similar reasons. "A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger
There is an "exception to th[e] [capable-of-constitutionalapplication] rule recognized in our jurisprudence [for] facial challenge[s] based upon First Amendment free-speech grounds. We have applied to statutes restricting speech a so-called `overbreadth' doctrine, rendering such a statute invalid in all its applications (i. e. , facially invalid) if it is invalid in any of them." Ada v. Guam Society of Obstetricians & Gynecologists, 506 U.S. 1011, 1012 (1992) (Scalia, J., dissenting from denial of certiorari);
To be sure, such a "facial challenge will not succeed unless the statute is `substantially' overbroad," New York State Club Assn., Inc. v. City of New York, 487 U.S. 1, 11 (1988), by which we mean that "a law should not be invalidated for overbreadth unless it reaches a substantial number of impermissible applications," New York v. Ferber, 458 U.S. 747, 771 (1982). But that is no impediment to invalidation here. The Court speculates that the "decency" criterion might permissibly be applied to applications seeking to create or display art in schools
Since the decency and respect proviso of § 954(d)(1) is substantially overbroad and carries with it a significant power to chill artistic production and display, it should be struck down on its face.
The Court does not strike down the proviso, however. Instead, it preserves the irony of a statutory mandate to deny recognition to virtually any expression capable of causing offense in any quarter as the most recent manifestation of a scheme enacted to "create and sustain . . . a climate encouraging freedom of thought, imagination, and inquiry." § 951(7).
Briefs of amici curiae urging affirmance were filed for the American Association of University Professors et al. by John Joshua Wheeler, Jonathan R. Alger, and Jeffrey P. Cunard; for Americans United for Separation of Church and State by Steven K. Green, Julie A. Segal, and Edward Tabash; for the Family Research Institute of Wisconsin by Daniel Kelly; for the New School for Social Research etal. by Floyd Abrams, Burt Neuborne, Kathleen M. Sullivan, Jonathan Sherman, Elai Katz, and Deborah Goldberg; for the Rockefeller Foundation by Donald B. Verrilli, Jr.; for Twenty-Six Arts, Broadcast, Library, Museum and Publishing Amici Curiae by James F. Fitzpatrick, James A. Dobkin, Matthew T. Heartney, Mark R. Drozdowski, Elliot M. Mincberg, and Lawrence S. Ottinger; for Volunteer Lawyers for the Arts et al. by Marci A. Hamilton; and for Claes Oldenburg et al. by Gloria C. Phares.
Paul J. McGeady and Robert W. Peters filed a brief for Morality in Media, Inc., as amicus curiae.
"No payment shall be made under this section except upon application there for which is submitted to the National Endowment for the Arts in accordance with regulations issued and procedures established by the Chairperson. In establishing such regulations and procedures, the Chairperson shall ensure that—
"(1) artistic excellence and artistic merit are the criteria by which applications are judged, taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public; and
"(2) applications are consistent with the purposes of this section. Such regulations and procedures shall clearly indicate that obscenity is without artistic merit, is not protected speech, and shall not be funded."
"Finley's controversial show, `We Keep Our Victims Ready,' contains three segments. In the second segment, Finley visually recounts a sexual assault by stripping to the waist and smearing chocolate on her breasts and by using profanity to describe the assault. Holly Hughes' monologue `World Without End' is a somewhat graphic recollection of the artist's realization of her lesbianism and reminiscence of her mother's sexuality. John Fleck, in his stage performance `Blessed Are All the Little Fishes,' confronts alcoholism and Catholicism. During the course of the performance, Fleck appears dressed as a mermaid, urinates on the stage and creates an altar out of a toilet bowl by putting a photograph of Jesus Christ on the lid. Tim Miller derives his performance `Some Golden States' from childhood experiences, from his life as a homosexual, and from the constant threat of AIDS. Miller uses vegetables in his performances to represent sexual symbols." Note, 48 Wash. & Lee L. Rev. 1545, 1546, n. 2 (1991) (citations omitted).
I recognize, as the court explains, ante, at 581, that the amendment adding the decency and respect proviso was a bipartisan counterweight to more severe alternatives, and that some Members of Congress may have voted for it simply because it seemed the least among various evils. See, e. g., 136 Cong. Rec. 28670 (1990) ("I am not happy with all aspects of the Williams-Coleman substitute . . . . It . . . contains language concerning standards of decency that I find very troubling. But I applaud Mr. Williams for his efforts in achieving this compromise under very difficult circumstances . . . . I support the Williams-Coleman substitute"). Perhaps the proviso was the mildest alternative available, but that simply proves that the bipartisan push to reauthorize the NEA could succeed only by including at least some viewpoint-based limitations. An appreciation of alternatives does not alter the fact that Congress passed decency and respect restrictions, and it did so knowing and intending that those restrictions would prevent future controversies stemming from the NEA's funding of inflammatory art projects, by declaring the inflammatory to be disfavored for funding.