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©Copyright 2005 NCAC
WEB DESIGN
Jeanne Criscola Criscola Design
free speech first amendment censorship
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Nonprofit
corporations which applied for National Endowment
for the Arts (NEA) grants filed a lawsuit challenging
the constitutionality of a provision of the NEA’s
grant procedure. The challenged provision required
grant recipients to certify that they would comply
with the prohibition on the use of the grant funds
to promote or produce “materials which in
the judgment of the National Endowment of the Arts…may
be considered obscene.” The nonprofit groups
alleged that the vagueness of the NEA’s requirement
prohibiting obscenity
created a chilling
effect on speech by causing grant applicants
to avoid undertaking any project that might
violate the requirement.
The Court agreed with the nonprofit groups that
the vagueness
of the NEA’s certification requirement violated
the First Amendment by causing a chilling effect
on artistic expression. It acted as an unlawful
prior restraint. The vagueness in the certification
process was not mollified by the NEA’s pledge
to use the Miller
obscenity test as the basis for its obscenity
determinations, as the NEA could change or modify
this pledge at will. Additionally, the procedural
safeguards essential to the Miller obscenity test,
such as a specific statute providing notice of what
is prohibited, a trial, and a jury of citizens applying
community standards were not available in the NEA’s
obscenity determinations.
Nonetheless, the government noted, it has no obligation
to subsidize an activity merely because it is constitutionally
protected, and it may put restrictions on who and
how it subsidizes, so long as it imposed no condition
on the exercise of such rights. Here the government
contended that no such conditions were imposed because
its requirement did not affect the availability
of private funding for any arts projects. The Court
disagreed. It found that the NEA requirement did
impose a condition on the exercise of fundamental
speech rights because of the extensive role the
NEA plays in funding arts generally, and, as a NEA
grant marks a project as worthy of support, an NEA
grant is often necessary to obtain private funding.
Therefore, the Court found that the vague certification
requirement violated the exercise of the fundamental
right to free speech, and the Court found in favor
of the nonprofit corporations. |
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materials are not intended, and should not be used, as
legal advice. They necessarily contain generalizations
that are not applicable in all jurisdictions or circumstances.
Moreover, court decisions may be superceded by subsequent
rulings, and may be subject to alternative interpretations.
Corrections, clarification, and additions are welcome.
Please send to ncac@ncac.org. |
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