|
B
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 their complaint to challenge the provision
as void for vagueness and impermissibly viewpoint based. First Amended Complaint, 1 Record, Doc. No.16,
p. 1 (Mar. 27, 1991). . . .
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 agreed with the District Court that the NEA was compelled by the adoption of §954(d)(1) to
alter its grant-making procedures to ensure that applications are judged according to the "decency
and respect" criteria. The Chairperson, the court reasoned, "has no discretion to ignore this
obligation, enforce only part of it, or give it a cramped construction." Id., at 680. Concluding
that the "decency and respect" criteria are not "susceptible to objective definition,"
the court held that §954(d)(1) "gives rise to the danger of arbitrary and discriminatory application"
and is void for vagueness under the First and Fifth Amendments. Id., at 680—681. In the alternative,
the court ruled that §954(d)(1) violates the First Amendment’s prohibition on viewpoint-based restrictions
on protected speech. Government funding of the arts, the court explained, is both a "traditional
sphere of free expression," Rust v. Sullivan, 500 U.S. 173, 200 (1991), and an area
in which the Government has stated its intention to "encourage a diversity of views from private
speakers," Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 834 (1995).
100 F.3d, at 681—682. Accordingly, finding that §954(d)(1) "has a speech-based restriction as its
sole rationale and operative principle," Rosenberger, supra, at 834, and noting the NEA’s
failure to articulate a compelling interest for the provision, the court declared it facially invalid.
100 F. 3d, at 683. . . .
We granted certiorari, 522 U.S. (1997), and now reverse the judgment of the Court of Appeals.
II
A
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 any particular weight in reviewing an application. Indeed, the agency asserts that it has adequately
implemented §954(d)(1) merely by ensuring the representation of various backgrounds and points of view
on the advisory panels that analyze grant applications. See Declaration of Randolph McAusland, Deputy
Chairman for Programs at the NEA, reprinted in App. 79 (stating that the NEA implements the provision
"by ensuring that the peer review panels represent a variety of geographical areas, aesthetic views,
professions, areas of expertise, races and ethnic groups, and gender, and include a lay person").
We do not decide whether the NEA’s view—that the formulation of diverse advisory panels is sufficient
to comply with Congress’ command —is in fact a reasonable reading of the statute. It is clear, however,
that the text of §954(d)(1) imposes no categorical requirement. The advisory language stands in sharp
contrast to congressional efforts to prohibit the funding of certain classes of speech. When Congress
has in fact intended to affirmatively constrain the NEA’s grant-making authority, it has done so in no
uncertain terms. See §954(d)(2) ("[O]bscenity is without artistic merit, is not protected speech,
and shall not be funded").
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’), rather than isolated and treated as exogenous considerations." Report to Congress,
at 89. In keeping with that recommendation, the criteria in §954(d)(1) inform the assessment of artistic
merit, but Congress declined to disallow any particular viewpoints. As the sponsors of §954(d)(1) noted
in urging rejection of the Rohrabacher Amendment, "if we start down that road of prohibiting categories
of expression, categories which are indeed constitutionally protected speech, where do we end? Where one
Member’s aversions end, others with different sensibilities and with different values begin." 136
Cong. Rec. 28624 (statement of Rep. Coleman); see also id., at 28663 (statement of Rep. Williams)
(arguing that the Rohrabacher Amendment would prevent the funding of Jasper Johns’ flag series, "The
Merchant of Venice," "Chorus Line," "Birth of a Nation," and the "Grapes
of Wrath"). In contrast, before the vote on §954(d)(1), one of its sponsors stated: "If we have
done one important thing in this amendment, it is this. We have maintained the integrity of freedom of
expression in the United States." Id., at 28674.
|
