Throughout history artists have produced works which tested society’s standards of decency. Society, or parts of it, may respond to these controversial works with harsh criticism and scorn. In free societies, artists may produce any type of work that their talent, imagination and means can support, whether it is controversial or not. However, the question arises: Do artists have the same freedom when their art is publicly funded by taxpayer dollars?

The 1989 NEA rules were challenged and found to be unconstitutionally vague by a U.S. District Court in California because the determination of what was obscene was left in the hands of the NEA. Even before the 1991 ruling — Bella Lewitzky Dance Foundation v. National Endowment for the Arts, 754 F. Supp. 774 (C.D. Cal. 1991) — members of Congress were debating ways to reform the NEA’s grant process. In 1990, Congress adopted an amendment which directed the NEA to take into consideration “general standards of decency and respect for the diverse beliefs and values of the American public.”

This amendment led to a 1998 U.S. Supreme Court decision upholding the decency standard enacted by Congress. The ruling in  href=”http://www.firstamendmentcenter.org/faclibrary/case.aspx?case=NEA_v_Finley”>National Endowment for the Arts v. Finley initially seemed a heavy blow to the First Amendment as a bulwark protecting artistic expression. In NEA v. Finley, the Court held that the NEA may consider public standards of decency in deciding which artists should receive federal grants.

However, Justice Sandra Day O’Connor, writing for the majority, took the sting out of the law. She explained that the decency standard was merely advisory and simply added one more consideration to a variety of pre-existing subjective criteria.

Though some might argue that the decency standard infringes upon free speech because it allows the NEA to favor certain viewpoints over others, the consensus is that the law poses no real threat given that the high court has characterized it as a mere piece of advice rather than a law that must be enforced.