Case NameBella Lewitzky Dance Foundation v. Frohnmayer; Newport Harbor Art Museum v. National Endowment for the Arts
Citation: 754 F.Supp. 774 (C.D.Cal. 1991)
Topics: Obscenity; Public Funding

Nonprofit corporations which applied for National Endowment for the Arts (NEA) grants filed a lawsuit challenging the constitutionality of a provision of the NEA’s grant procedure. The challenged provision required grant recipients to certify that they would comply with the prohibition on the use of the grant funds to promote or produce “materials which in the judgment of the National Endowment of the Arts…may be considered obscene.” The nonprofit groups alleged that the vagueness of the NEA’s requirement prohibiting obscenity created a chilling effect on speech by causing grant applicants to avoid undertaking any project that might violate the requirement.

The Court agreed with the nonprofit groups that the vagueness of the NEA’s certification requirement violated the First Amendment by causing a chilling effect on artistic expression. It acted as an unlawful prior restraint. The vagueness in the certification process was not mollified by the NEA’s pledge to use the Miller obscenity test as the basis for its obscenity determinations, as the NEA could change or modify this pledge at will. Additionally, the procedural safeguards essential to the Miller obscenity test, such as a specific statute providing notice of what is prohibited, a trial, and a jury of citizens applying community standards were not available in the NEA’s obscenity determinations.

Nonetheless, the government noted, it has no obligation to subsidize an activity merely because it is constitutionally protected, and it may put restrictions on who and how it subsidizes, so long as it imposed no condition on the exercise of such rights. Here the government contended that no such conditions were imposed because its requirement did not affect the availability of private funding for any arts projects. The Court disagreed. It found that the NEA requirement did impose a condition on the exercise of fundamental speech rights because of the extensive role the NEA plays in funding arts generally, and, as a NEA grant marks a project as worthy of support, an NEA grant is often necessary to obtain private funding. Therefore, the Court found that the vague certification requirement violated the exercise of the fundamental right to free speech, and the Court found in favor of the nonprofit corporations.

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