Facts
- Congress created the National Endowment for the Arts (NEA) to award competitive arts grants under broadly stated priorities, leaving substantial discretion to the agency.
- Respondent performance artists’ grant applications were recommended by advisory panels but ultimately denied by the NEA’s leadership.
- After public controversy over NEA-funded works, Congress amended the statute to require that grant decisions consider “general standards of decency and respect for the diverse beliefs and values of the American public,” while maintaining “artistic excellence and artistic merit” as criteria.
- Respondents brought a facial challenge to the “decency and respect” provision, alleging viewpoint discrimination and unconstitutional vagueness.
- The district court and the Ninth Circuit held the provision unconstitutional; the Supreme Court granted review.
Issues
- Whether requiring the NEA to consider “general standards of decency and respect” in grantmaking is facially unconstitutional viewpoint discrimination under the First Amendment.
- Whether the “decency and respect” criterion is unconstitutionally vague under the First and Fifth Amendments in the context of discretionary arts subsidies.
- Whether a facial overbreadth theory justifies invalidating the provision absent a showing of substantial suppression of protected expression.
Decision
- The Supreme Court reversed and held the provision facially valid.
- The Court ruled the statute does not, on its face, mandate suppression of disfavored viewpoints; it adds a consideration within a competitive, discretionary subsidy program.
- The Court held the language is not unconstitutionally vague in this setting because grant decisions are inherently subjective and do not impose penalties or direct prohibitions on speech.
- The Court declined to invalidate the statute on a facial overbreadth theory, emphasizing the demanding standard for facial relief and the lack of evidence of substantial suppression.
- The Court left open the possibility of as-applied challenges if future administration of the criterion demonstrated viewpoint-discriminatory enforcement.
Legal Principles
- Government has wide latitude to set spending priorities in selective subsidy programs; criteria that would be impermissible as direct speech regulation may be permissible for allocating grants.
- In a discretionary funding scheme, the consideration of content-sensitive factors does not automatically amount to unconstitutional viewpoint discrimination absent a condition that penalizes or requires surrender of a protected viewpoint.
- Vagueness doctrine is applied less strictly to discretionary benefits than to criminal laws or direct regulatory restrictions, particularly where denial of funding does not itself bar expression.
- Facial invalidation under overbreadth is disfavored and requires a showing that the law threatens or suppresses a substantial amount of protected expression.
Conclusion
The Court upheld the NEA’s statutory requirement to consider “decency and respect” as a factor in grantmaking, finding no facial viewpoint discrimination or unconstitutional vagueness in a discretionary arts-subsidy program while preserving the possibility of future as-applied challenges.