On Edge: Performance at the End of the Twentieth Century

Gross Indecency: The NEA Four Decision

• • • Gross Indecency The NEA Four Decision O n June 25, 1998, the Supreme Court added its own dash of surrealism to the nine-year battle over arts funding when it handed down a decision in the case of Karen Finley et al. v. National Endowmentfor the Arts. While ruling on the one hand that Congress may require the NEA to consider "general standards of decency " when awarding grants, the Court also declared this language "advisory" and virtually meaningless. In effect, the Court had found its way to the murky middle. Performance artists Karen Finley, John Fleck, Holly Hughes, and Tim Miller filed their lawsuit against the NEA back in 1990. They had all won solo performance grants that year-all of them unanimously recommended by a panel of theater experts. But then-NEA chair John Frohnmayer defunded them, telling a meeting of NEA staff: "Funding everything that panels recommend as having artistic merit will onlyensure our demise." Frohnmayer's statement came to light later, but the artists surmised immediately that they'd been defunded for political reasons. (All four deal with sexual themes, primal imagery, Otherness. All but Finley are gay.) They sued to get their grants, but also to challenge the so-called decency clause. The NEA had been re-authorized in 1990 under the stipulation from Congress that, in awarding grants, it take into consideration "general standards of decency and respect for the diverse beliefs and values of the American public." In 1992, a district judge in Los Angeles declared that language unconstitutional . Then, in 1993, six months after Bill Clinton took office, the NEA settled with the Four and gave them their grants. The case appeared to be closed. Gross Indecency 293 Much to the shock of the artists, however, Clinton's Justice Department appealed to restore the decency clause. Not only that, but the government based its argument on Rust v. Sullivan-the "gag rule" that had prohibited doctors from talking about abortion in federally funded clinics. An appeals court shot down the decency clause again. 50 Clinton's Justice Department appealed again. That's how the artists came to face the nine robed figures they called The 5upremes. All but Fleck were present for oral arguments last March. If anyone expected the level of discourse to rise to a higher level in that august chamber-well, the questions from the justices didn't exactly break new ground: Can't the government buy "decent" works of art for the Capitol without a challenge? Can't Congress just say, "No crucifixes in urine"? Do we have to exhibit these things in a school? Would the NEA be required to fund a white supremacist group whose art met the requirements ? Can't we say we want what America finds beautiful? "These were the kinds of things I'd get asked if I tried to talk to my father's Kiwanis club," Hughes observed. And even if they won this case, she said, flit's just one more sandbag against the assault from the right." But they didn't win. And at the Endowment, there's a notable sense of relief. "We anticipate that the Court's ruling will not affect our dayto -day operations," said newly appointed NEA chair William J. Ivey. Even David Cole, lead counsel for the plaintiffs-the four artists plus the National Association of Artists' Organizations (NAAo)-thinks the ruling is "not as big a loss as one might think. What the majority says is that government cannot discriminate in arts funding decisions based on unpopular viewpoints of artists. It does not categorically exclude funding an artist because his or her work is indecent." The artists themselves were far less sanguine. "A big loss for our country," said Karen Finley, who is currently performing The Return of the Chocolate-Smeared Woman, a deconstruction of the image created for her by the right wing. And Tim Miller observed: "The Court is saying the decency language is meaningless, not enforceable, but the reality is, it's been the rule for some time in federal funding." What has developed over the past nine years is a new decency mindset in the arts. This has effectively kept transgressive artists from reaching their potential audiences, and forced alternative spaces, 294 WAR ON ART which depend on federal funding, to be cautious in their choices. After nine years of incremental damage, the Endowment that the artists sued back...