In the late 1980s, performance artist and NEA grant recipient Karen Finley took off her clothes and smeared herself with chocolate to symbolize the shit women put up with. Most of the audience at the 1 AM performance I saw thought Finley's feminist point was emphatic, if messy, but leaders of the political and religious right did not see it that way-at least as they read about it in the papers. They saw Finley's piece as an unnecessarily pornographic way of expressing oneself which decent people shouldn't have to pay taxes to support. They complained to Congress, and Finley and three other artists whose work addressed AIDS or (homo)sexuality-John Fleck, Holly Hughes, Tim Millerlost their grants. In return, the artists sued the government, accusing the NEA of discriminating against them on the basis of their ideas, thereby violating Constitutional guarantees of freedom of expression. Thus was the beginning of the nineyear court fight that ended on June 25, 1998 when the Supreme Court, in "The National Endowment for the Arts (NEA) v. Karen Finley et al.," upheld the now-famous "decency test" for NEA grants. That decision has broad implications-though at the moment, unclear ones-not only for American art but for all public programs that fund the ideas, research, or expression of Americans.
In 1989, during the controversy that followed Ms. Finley's new clothes, Congress passed its first law prohibiting the NEA from funding provocative art. Reflecting the conservative shift in Congress during the Reagan and Bush administrations, the law prohibited NEA grants for art that is obscene, sadomasochistic, homoerotic or that depicts the sexual exploitation of children. The statute was declared unconstitutional in 1991 (in a case called Bella Lewitzky Dance Foundation v. Frohnmeyer)-not only because the broad prohibition against homoeroticism and sadomasochism disqualified much of Western art (including images of the Crucifixion) but also because the Supreme Court reaffirmed that government may not discriminate against the ideas of its citizens.
In 1990, when it became clear that the courts would not sustain the 1989 prohibitions, Congress passed a second law creating the "decency test." The test holds that the NEA, when awarding grants, must "take into consideration general standards of decency and respect for the diverse beliefs and values of the American public."
("Decency" has no precise legal definition and is a subjective judgment, unlike "obscenity," which is illegal in the United States.) The 1990 law also required that grant recipients promise in writing not to violate the "decency" test-a requirement artists quickly dubbed the "loyalty oath." In response, Finley et al. extended their suit to challenge the "decency test."
In their case, the artists claimed that the "decency test" discriminates against controversial ideas and that it is vague, thereby casting a shadow over a wide range of art which the NEA will therefore be wary of funding. The artists asked: What precisely is "decency"? What is the line between disagreement and disrespect? Whose "standards," "beliefs," and "values" should artists respect-those of a high school teacher in Brooklyn, a race car driver in Kansas City? Who will determine what these standards are? How can every NEA project reflect the values of all U.S. citizens?
In addition to these objections, the artists made a very particular claim about the government's ability to discriminate against ideas in projects that it funds, and it is this part of the case that will most influence artistic, educational, and research institutions. The artists' argument was called "Rust v. Sullivan," a case in which the the Supreme Court held that government may indeed select what information is dispensed in federally-funded family planning clinics (to include, for instance, discussion of birth control but to prohibit information on abortion) because government may control (choose, limit) its own speech. …