National Endowment for the Arts v. Finley

Brief Fact Summary. The Respondent, Finley (Respondent), was denied a federal grant to fund her performance art after the Petitioner, National Endowment for the Arts (Petitioner), determined that it might offend the general standards of decency.

Synopsis of Rule of Law. A law is facially valid as long as it does not suppress disfavored viewpoints.

Facts. The Petitioner is a federal agency that provides funding for the arts. Applications for these funds are reviewed by advisory panels that inform the Petitioner of their recommendations. The Petitioner has the ultimate authority to grant funding for projects, but cannot approve anything the advisory council rejects. In 1989, two provocative works prompted public controversy leading to the reevaluation of the project selection process. As a result, Congress adopted a law that made the Petitioner consider the “general standards of decency and respect for the diverse values of the American public.”

Issue. Is the new law invalid on its face and therefore a violation of the First Amendment right to free speech?

Held. No. This law is constitutional as it does not interfere with freedom of speech rights and it is not overly vague.

Dissent. The “decency and respect” inclusion criteria makes this a view-point based decision that should not be exempted from the general rule that makes content-based laws unconstitutional.

Discussion. This law only requires the Petitioner to consider factors of decency. It does not mandate that all explicit works be denied federal grants. Therefore, it is not an unconstitutional content-based rule.