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JUSTICE O’CONNOR delivered the opinion of the Court.
The National Foundation on the Arts and Humanities Act, as amended in 1990, 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’ determination that §954(d)(1), on its face, impermissibly
discriminates on the basis of viewpoint and is void for vagueness under the First and Fifth Amendments.
We conclude that §954(d)(1) is facially valid, as it neither inherently interferes with First Amendment
rights nor violates constitutional vagueness principles.
I
A
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).
Since 1965, the NEA has distributed over three billion dollars in grants to individuals and organizations,
funding that has served as a catalyst for increased state, corporate, and foundation support for the arts.
Congress has recently restricted the availability of federal funding for individual artists, confining
grants primarily to qualifying organizations and state arts agencies, and constraining sub-granting. See
Department of the Interior and Related Agencies Appropriations Act, 1998, Pub. L. 105—83, §329, 111 Stat.
1600. By far the largest portion of the grants distributed in fiscal year 1998 were awarded directly to
state arts agencies. In the remaining categories, the most substantial grants were allocated to symphony
orchestras, fine arts museums, dance theater foundations, and opera associations. See National Endowment
for the Arts, FY 1998 Grants, Creation & Presentation 5—8, 21, 20, 27.
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 Mapplethorpe and Serrano photographs by eliminating $45,000 from the agency’s budget, the precise
amount contributed to the two exhibits by NEA grant recipients. Congress also enacted an amendment providing
that no NEA funds "may be used to promote, disseminate, or produce materials which in the judgment
of [the NEA] may be considered obscene, including but not limited to, depictions of sadomasochism, homoeroticism,
the sexual exploitation of children, or individuals engaged in sex acts and which, when taken as a whole,
do not have serious literary, artistic, political, or scientific value." Department of the Interior
and Related Agencies Appropriations Act, 1990, Pub. L. 101—121, 103 Stat. 738, 738—742. The NEA implemented
Congress’ mandate by instituting a requirement that all grantees certify in writing that they would not
utilize federal funding to engage in projects inconsistent with the criteria in the 1990 appropriations
bill. That certification requirement was subsequently invalidated as unconstitutionally vague by a Federal
District Court, see Bella Lewitzky Dance Foundation v. Frohnmayer, 754 F. Supp. 774 (CD
Cal. 1991), and the NEA did not appeal the decision.
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 Endowment for the Arts
83—91 (Sept. 1990), 3 Record, Doc. No. 151, Exh. K (hereinafter Report to Congress).
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 NEA has not promulgated any official interpretation of the provision, but in December 1990, the Council
unanimously adopted a resolution to implement §954(d)(1) merely by ensuring that the members of the advisory
panels that conduct the initial review of grant applications represent geographic, ethnic, and aesthetic
diversity. See Minutes of the Dec. 1990 Retreat of the National Council on the Arts, reprinted in App.
12—13; Transcript of the Dec. 1990 Retreat of the National Council on the Arts, reprinted in id.,
32—33. John Frohnmayer, then Chairperson of the NEA, also declared that he would "count on [the]
procedures" ensuring diverse membership on the peer review panels to fulfill Congress’ mandate. See
id., at 40.
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