Brief Fact Summary. By statute, the Chairperson of the National Endowment for the Arts (NEA) is enabled with the ability to consider grant applications, while taking into consideration societal standards of decency and diversity. The Respondents, Finley and others (Respondents), herein brought suit, claiming that the enabling statute was facially discriminatory because it suppressed their First Amendment freedom of expression.
Synopsis of Rule of Law. The process of granting funds, by its nature is discriminatory, but this sort of discrimination is not a suppression of expression within the realm of First Amendment constitutional protection.
Issue. This case considers whether a statute directing that “decency and respect” be considered in the allotment of funds is a tool for viewpoint discrimination.
Held. Justice Sandra Day O’Connor (J. O’Connor). Reversed.
The majority found that the process of grant allocation, in itself, mandates aesthetic judgments, which are inherently content-based. Because the enabling statute, itself, has not proven to be a vehicle for viewpoint discrimination, it is not unconstitutional and should stand.
Dissent. Justice David Souter (J. Souter) dissented saying that the decency and respect provisions are facially discriminatory because they elicit the viewpoint of the Chairperson of the NEA, when enabling his discretion to allocate funds.
Concurrence. Justice Antonin Scalia (J. Scalia) concurred with the majority, noting that the enabling statute, as written, does mandate content and viewpoint criteria be used, but in the realm of the arts, it is perfectly constitutional. J. Scalia goes on to say that those who wish to create indecent and disrespectful art are not being suppressed, they are merely not being funded.
Discussion. When dealing with the allocation of governmental funds, discretion as to the grantee of the funds is neces