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Monday, 18 June 2007 09:53

Education Outreach Program

Mission Statement

The mission of the ITCR The Foundation of NCSF  and its Education Outreach Program is to provide members of the SM-Leather-Fetish, swing and polyamory communities educational information concerning relevant legal, medical and other issues. To provide education, as appropriate, to law enforcement, care providers, and other authorities about alternative sexuality, and to assist and support the outreach and education efforts of local communities.

 

Goals

The EOP has the following goals:

  • To support efforts and goals of NCSF and its sister foundation, ITCR: The Foundation of NCSF.

  • To assist SM-Leather-Fetish, swing and polyamory groups and communities in their efforts to educate themselves about legal issues that affect their communities and individual relationships

  • To assist alternative sexuality groups and communities by providing relevant, up-to-date information about dealing with law enforcement and other authorities, and assist them in working with their local law enforcement and other authorities

  • To provide law enforcement and other government authorities with information about alternative sexuality as appropriate

  • To assist alternative sexuality groups and communities in their efforts to educate and work with their local law enforcement and other authorities

Presentations and Publications we offer for our Outreach Program.

by Female Trouble
March 1994

 

Within the womenâs community, over half (56%) of the 539 lesbian and bisexual women surveyed experienced discrimination, harassment, or physical assault from other women because of their participation in consensual s/m. This survey only dealt with the discrimination or violence occurring within the lesbian community against S/M women.

Harassment is the most common form of attack against s/m practitioners in the lesbian community. 44% of the S/M women reported some form of violence against them, with one-third of the reported incidents of harassment had occurred in the last year (1993).

 

30% of the S/M women in the survey experienced discrimination in the lesbian community because of their s/m orientation. This discrimination included being refused membership or being ejected from social, recreational, political, education, spiritual groups within the lesbian community.

 

Incidents of physical assault in the lesbian community because of S/M orientation were reported by 25% of the women. This includes being slapped, punched or kicked by other women because of their s/m orientation.

 

Of the 367 s/m women who were victims and/or witnesses of violence at some point in their lives, only 22% felt safe enough to report the incidents to police or event organizers, group leaders, bar staff, etc. Only 25% stated that their complaints had been handled satisfactorily. This reputation within the lesbian community for not supporting victims of violence, harassment and discrimination prevents s/m women from fully participating in the community.

 

In the forward of the Female Trouble analysis, Jad Keres writes: "The S/M women who have taken part in this survey have something important to tell us. Listening to them does not require an understanding of their sexual expression nor approval of their lifestyle. It does require a willingness to still the persistent noise of hard-held opinions and unyielding dogma. As a community, will we finally allow the voices of all women to be heard and heard consistently or will we continue to blatantly censor and dismiss the lives of women we do not understand or approve of? As a community, will we finally acknowledge and stop the political violence that has preyed upon S/M women or will we continue to ignore the real bloody consequences of the 'Sex Wars'?"

 

Female Trouble, PO Box 30145, Philadelphia PA 19103

PURPOSE:

  1. Gather demographic data on the SM-Leather-Fetish communities.

  2. Gain an understanding of the affect of social stigma on SM and fetish practitioners.

SURVEY INSTRUMENT - Paper and electronic distribution (see below)

PERIOD - April 1998 to February 1999

RESULTS:

  1. Useful demographic data on the SM-Leather-Fetish communities

  2. Sense of the magnitude of the problems arising from the stigma against SM

  3. Clear justification for a more professional survey

GENDER 

ORIENTATION

Men  51%  Heterosexual  40%
Women  46% Homosexual  22%
Transgender  1% Bisexual  36%
Intersexual  2% No Response   4%
EMPLOYMENT AGE  INCOME
Student 8% 18-22 3% Under $ 10K 7%
Part time 5%  23-29 15% $10-24K 17%
Full time 62% 30-44 49% $25-49K 37%
Self employed 22% 45-64 31% Over $50K 39%
Unemployed 1% Over 65 2%    
Retired 2%        

COMMUNITY ISSUES:

1. Have you ever experienced violence or harassment because of your alternative sexual practices?

36%   YES

If yes, what happened? (multiple responses allowed)

Verbal harassment  87%

Physical assault 

25%
Stalked  19%

Property vandalized 

19%
Blackmail  17%
Sexual harassment  13%

Rape 

10%
Other  7%

2. Have you ever experienced discrimination due to your alternative sexual practices?

30%   YES

If yes, what happened? (multiple responses allowed)

Persecution 40%

Loss of job or contract 

25%
Loss of promotion  17%
Loss of custody of child  3%

Refused membership 

11%
Unjustified arrest  5%
Other  36%

3. Did you press charges?

96%   NO

4. Do you freely tell others of your interest in alternative sexual expression?

72%   NO

If you're not out, why not?

Fear of disapproval  67%
Fear of repercussions  57%
Fear of persecution  34%
Fear of loss of child custody  13%
Other  16%

RESULTS

Only 28% of those surveyed were "out", while the vast majority don't tell other people about their sexual preferences. Some reported that "it's no one else's business," but many cited fear of job loss or child custody, or harming family relations. One respondent reported, "A formerly trusted confidant outed me to my family. As I am the primary care giver for my mother (Alzheimer's) my siblings feared that I would expose our mother to "dangerous characters". They considered making other arrangements for Mom's care and made me promise not to 'practice" my sexual preferences in our home."

Unfortunately, staying in the closet doesn't protect people - only one-third of those who suffered violence or discrimination reported that they are "out". The other two-thirds were minding their own business and keeping their mouths shut when they were either harassed or discriminated against.

Discrimination cuts very deep, in places we may not even realize. One respondent wrote, "My doctor called my desire for body modification 'sick'. Medical doctors have with held information of safe piercing practices from me because they consider all piercing to be 'self destructive', 'sick' and dangerous."

Other people are haunted by a fear of losing their jobs. Many who have answered the survey are educated professionals, and they can't afford to jeopardize their income. One University professor wrote, "We are very careful about outside appearance because of the fact that we live in a predominantly student section of town, where in fact several of my students live within shouting distance."

We also received a response from an ordained minister who has been involved in SM for several years. "I shared with my former roommate from seminary details about my lifestyle & interest. She took it upon herself to "save" me & report me to my superiors. I was up on a years leave of absence & required to participate in therapy."

There are many responses from people about being "ostracized... for getting mail that included SM/Leather/Fetish publications," or "harassed and threatened with being fired," or "laid off."

Of the violence that occurs against SM practitioners, there is an appalling amount of sexual abuse being perpetuated because someone believed they "deserved it". Many survey responses reported incidents of: "Simply; I was beaten up due to the jerk thinking that since I was submissive, that also meant free game to beat up and rape."

Despite the fact that 36% of the respondents reported being harassed or attacked because of their diverse sexual practices, 96% never reported the crime. Some of the reasons given were: "Didn't think authorities would believe me." "Chalked it up to ignorance & prejudice. "Wouldn't have been taken seriously." "Who would believe me?" "A waste of time."

NCSF hopes with the results from this survey, law enforcement officials will have to listen to the facts about violence taking place against people because of their interest in alternative sexual practices. NCSF hopes that media professionals will realize there are serious repercussions when SM and fetishes are sensationalized.

SURVEY INSTRUMENT

  • 645 hard surveys returned

  • 372 computer surveys returned

  • 1,017 total returned surveys

Respondents were actively encouraged to fill out the survey whether or not they had experienced discrimination or violence. Most of the survey questions were geared toward gaining demographic information on the SM-Leather-Fetish communities.

The computer survey form was posted on the NCSF website. Hyperlinks were sent through NCSF and other e-mail newsletters, and the URL was posted on various internet sites, bulletin boards, and chat rooms.

5,000 surveys were printed and distributed at dozens of meetings and events, including the following major community events:

  • Leather Leadership Conference, NYC, April 1998
  • IML, Chicago, May 1998
  • Folsom Street East, NYC, June 1998
  • IMsL, August 1998
  • Folsom Street Fair, San Francisco, September 1998
  • Living in Leather, Texas, October 1998
  • BR 98, DC, October 1998

The Member Organizations of NCSF mailed an additional 4,600 surveys directly to each of their members:

Member Organization
Society of Janus  700
GMSMA  1,100
The Eulenspiegel Society  1,100
NLA-I  400
Black Rose  300

Total 

3,600
Monday, 18 June 2007 09:26

Recommended Reading for GLBT Activists

 
Prepared by NCSF with input from GBLT Activists

 

POLICING PUBLIC SEX; edited by Dangerous Bedfellows; South End Press: Boston, Massachusetts; 1996

PUBLIC SEX, GAY SPACE; Edited by William L. Leap; Columbus University Press; 1999

THE QUEER QUESTION, ESSAYS ON DESIRE AND DEMOCRACY; Scott Tucker; South End Press; Boston, Massachusetts; 1997

SEXUAL POLITICS, SEXUAL COMMUNITIES; John D'Emilio; University of Chicago Press; 1983

THE PIG FARMER'S DAUGHTER AND OTHER TALES OF AMERICAN JUSTICE; EPISODES OF RACISM AND SEXISM IN THE COURTS FROM 1865 TO THE PRESENT; Mary Francis Berry; New York; Knopf; 1999

KISS AND TELL: SURVEYING SEX IN THE TWENTIETH CENTURY; Julia Erickson, with Sally A. Steffen; Cambridge; Harvard University Press; 1999

SEX WARS: SEXUAL DISSENT AND POLITICAL CULTURE; Lisa Duggan and Nan Hunter; New York; Routledge; 1995

OPPOSITE SEX; GAY MEN ON LESBIANS, LESBIANS ON GAY MEN; edited by Sara Miles and Eric Rofes; NYU Press; 1998

THE TROUBLE WITH NORMAL; SEX, POLITICS, AND THE ETHICS OF QUEER LIFE; Michael Warner; Harvard University Press; Cambridge; 1999

THE POLITICS OF SEXUALITY; SEXUALITY & CULTURE; VOLUME 3; edited by Barry M. Dank and Roberto Refinetti; Transaction Publishers; New Brunswick 1999

AMERICAN SEXUAL BEHAVIOR; TRENDS, SOCIO-DEMOGRAPHIC DIFFERENCES, AND RISK BEHAVIOR; Tom W. Smith; National Opinion Research Center; University of Chicago; GSS Topical Report No. 25; Updated December, 1998

THINKING SEX; NOTES FOR A RADICAL THEORY OF THE POLITICS OF SEXUALITY; essay by Gayle S. Rubin; 1992

GLOBAL SURVEY 2000; GLOBAL SURVEY INTO SEXUAL ATTITUDES AND BEHAVIOR; Durex; 2000

Monday, 18 June 2007 09:15

"SM Issues for Healthcare Providers"


17th Annual Symposium
in San Diego, California on Aug 27, 1999

 

I. Who we are... why we are doing this

 

Introductions of Dr. Ruth W., neurologist, and Susan Wright, Policy Director of NCSF

 

We are presenting on "SM Issues for Healthcare Providers" because the same issues which may lead to inadequate health care for patients with non-mainstream sexual orientations or gender identity affect those who participate in sexual minority practices.

 

There are many questions related to physical or psychological health which patients may feel unable to ask because of fear of discrimination or of breach of confidentiality. As health care providers, we have a responsibility to be able to address these concerns without passing judgment.

 

An understanding of the basic principles of SM play enables us to fulfill this responsibility. In addition, it is important that we be able to identify when someone is in an abusive, non-consensual situation, and to provide them with appropriate support. This workshop will address the physical and psychological aspects of SM practices and provide an understanding of common scenarios.

 

II. Examples of questions Doctors may get

 

A 50 y/o man defers consulting his family physician about lower abdominal cramping associated with bowel movements because he is afraid the doctor will be able to tell he is into anal sex play and enemas, and that this may be related to his problem.

 

A 30 y/o woman gets a vaginal tear from fisting, which is continuing to bleed, but doesn't want to consult her doctor or got to the ER.

 

A 45 y/o man is left in bondage by a professional dominatrix for too long and develops numbness and weakness of both arms which does not resolve after a couple of days.

 

A 25 y/o woman newly diagnosed with MS is scared to explore her new interest in SM with her girlfriend, because she doesn't know how to ask her neurologist about what might be safe or dangerous for her to do.

 

The same issues which may lead to inadequate healthcare for patients with non-mainstream sexual orientation or gender identity affect those who participate in sexual minority practices. This includes gays, lesbians, bisexuals, folks who enjoy SM, who have body modifications such as piercings, tattoos, who crossdress, who are sex workers, who have multiple partners, who are transgendered or engage in fetish behavior.

 

There are many questions related to physical or psychological health which patients may feel unable to ask because fear of discrimination or of breach of confidentiality. Simple problems fester or become chronic. Patients are afraid to tell their doctors about their alternative sexual expression - even doctors they know are kink-friendly.

 

We are all unused to discussing sexuality in a neutral atmosphere and we are not given training to do it. In the LGBT community we are at an advantage, because sexuality is often more to the forefront than in the heterosexual community, but this certainly doesn't make us immune to being judgmental about practices outside our realm of experience. But precisely because of this reason I would argue that we have more of a responsibility to address issues related to alternative sexual practices.

 

Everyone deserves adequate health care, whether they are kinky or straight. As a prerequisite to good health care, the patient must trust their physician.

 

As healthcare providers we have a responsibility to be able to address these concerns without passing judgment. An understanding of the basic principles of SM play enables us fulfill this responsibility. In addition it is important that we be able to identify when someone is in an abusive situation and to provide them with appropriate support.

 

III. What is SM?

 

SM includes a broad and complex group of behaviors between consenting adults that involves the consensual exchange of power. This includes the giving and receiving of intense erotic sensation and/or mental discipline and power games.

SM activity is often called "playing" or having a "scene" because that is the way the SM-Leather-Fetish community approaches our form of sexual expression. Our equipment is often referred to as "toys". Like any other kind of game, we have rules we play by.

 

Individuals negotiate their limits prior to having a scene. Negotiation is ongoing; before, during and after the scene (what's known as "aftercare") to make sure the bottom is fine with what occurred. In our community, it's considered polite to check in with a bottom the day after the scene (or to request that they call you). This is usually more for the psychological issues that may have arisen rather than physical concerns.

 

SM does not feel like what it looks like. SM rests on a firm foundation of ongoing communication because most of what's going on is in the participants head. I'll use the term top and bottom, but it's also called dominant and submissive, or master and slave. SM is sometimes called D/S or BDSM or the practitioner may not identify or label their activities at all.

 

Contrary to popular stereotypes, the bottom is in control of the scene and can stop the activity at any time. Often people use a predetermined "safeword". This is a word or gesture that will stop the scene. At community events, the established safeword is "safeword," but individuals often have their own personal safeword, or some simply use "no" to mean "no." Sometimes people who are very submissive have trouble saying no, so a word like "red" is easy for them to say. Or some bottoms like to resist and say no, when they really mean yes, so they choose to have a safeword.

 

This community-wide standard was codified more than ten years ago in the creed: "safe, sane, consensual."

 

1. Safe is being knowledgeable about the techniques and safety concerns involved in what you are doing, and acting in accordance with that knowledge.

 

This includes protection against HIV, STDs, and hepatitis. It also includes notifying your partner of any physical condition that may impact on the scene, like asthma, bad back, epilepsy, etc. It also includes psychological safety, such as you were abused as a child and don't like a particular part of your body touched.

 

The community concerns itself with safety issues by supporting hundreds of educational and social organizations that teach people the proper way to use their equipment. Such as: how to tie wrists without putting pressure on the insides; how to properly clean equipment; which areas on the body are unsafe to stimulate, such as the face, joints, spine, bottoms of the feet.

 

2. Sane is knowing the difference between fantasy and reality, and acting in accordance with that knowledge.

Since physical acts has so much power, there are many fantasies that can be acted out by only hinting at the physical conditions someone fantasizes about. That's why our language is so symbolic: dungeon, slave, words of humiliation, or affectionate ownership. You may have to break through the fantasy to make sure your patient likes and wants what is happening.

 

Sane includes being of clear mind, and the community strongly recommends that mind-altering substances should be avoided during a scene, including alcohol, illegal drugs, and prescription drugs that impair judgment.

 

3. Consensual is respecting the limits imposed by each participant at all times. One of the recognized ways to maintain limits is through the "safeword" I mentioned. If it's nonconsensual, then it's abuse or assault. SM must be consensual.

 

To determine if informed consent has been reached, you can ask the following questions:
a) Was informed consent expressly denied or withdrawn? (similar to rape standards, if one of the participants withdraws consent during the activity, that must be respected)
b) Were there factors that negated the informed consent? (alcohol impairment, drug use, underage participants)
c) What is the relationship of the participants? (first encounter or long-term partner?)
d) What was the nature of the activity? (did it cause permanent harm, was it unsafe, was it enjoyable?)
e) What was the intent of the accused abuser? (to cause pleasure, to gain dominance, to gain control, to hurt?)

IV. SM vs Abuse

 

The community standard of safe, sane and consensual emerged from the growing national concern with domestic violence. SM is not domestic violence, but increasingly as SM gains wider mainstream acceptance, there are abusers who take advantage of men and women who enjoy SM. This makes it difficult for you, as a doctor who is required to report abuse.

 

If there are physical signs, you can usually judge by the marks:


1. SM rarely results in facial marks or marks that are received on the forearms (defensive marks).
2. There is usually an even pattern of marks if it is SM, indicating the bottom held quite still during the stimulation.

3. The marks are often quite well-defined when inflicted by a toy like cane or whip, whereas in abuse there are blotches of soft-tissue bruising, randomly distributed.
4. The common areas for SM stimulation is on the buttocks, thighs, back, breasts, or the genitals. The fleshy parts of the body can be stimulated intensely and pleasurably.

 

Questions to ask to determine if it is abuse. Whether an individual's role is top/dominant or bottom/submissive, they could be suffering abuse if they answer no to any of the following questions:

 

1. Are your needs and limits respected?
2. Is your relationship built on honesty, trust, and respect?
3. Are you able to express feelings of guilt or jealousy or unhappiness?
4. Can you function in everyday life?
5. Can you refuse to do illegal activities?
6. Can you insist on safe sex practices?
7. Can you choose to interact freely with others outside of your relationship?
8. Can you leave the situation without fearing that you will be harmed, or fearing the other participant(s) will harm themselves?
9. Can you choose to exercise self-determination with money, employment, and life decisions?
10. Do you feel free to discuss your practices and feelings with anyone you choose?

 

V. Intersections of SM and Healthcare 

 

The role of Health Care Providers is to educate the patient to understand the medical problem. Give the patient the info to help determine what is safe, and what to do if there is a problem. If they don't know already, they should know to educate play partner(s).

 

1. When SM causes health problem (least common). An accurate report of activity is essential and requires trust from patient:
a) Fainting or dizziness
b) Bondage-related - causing nerve damage, joint strain, numbness
c) problems releasing retained rectal objects

 

2. When the patient wants advice on what is safe (pretty common). Much of this we can figure out from common medical knowledge (eg how long can vascular supply be cut off), but you may need expert advice on this from scene-friendly physicians:

a) extreme bondage (breast, genital)
b) play-piercing
c) breath control
d) anal play
e) nipple piercing and breast-feeding

 

3. When health problem inhibits a patient from full expression of sexuality. This is more straightforward, and involves educating patient about their disease:

a) MS: fatigue, overheating, numbness, coordination, sexual dysfunction,
b) CAD: HTN level of exertion,
c) Diabetes: avoiding hypoglycemia,
d) Asthma: need quick-release restraints, no chest or breath restraint,
e) Epilepsy: awareness of aura, what to do if seizure occurs,
f) LBP, arthritis: avoid putting strain upon joints (shouldn't do this anyway).

 

VI. Talking to your Patients about SM

 

1. Who is involved in SM?

 

You have patients involved in SM practice and you don't know it. One out of every ten Americans engages in diverse sexual behavior, yet the stigma against these millions of people means that these people aren't talking about their sexuality as it impacts on their health concerns.

 

How does a patient come out about SM activities to a healthcare provider? It may be that the provider simply notices piercings or marks or shaved skin. Don't ignore these signs--ask questions to ensure it is consensual SM. That will encourage your patient in turn to ask their health care questions. As you ask questions, never assume you know the kinky activity by a person's appearance.

 

As an added bonus, Doctors can benefit from being kink-aware because the SM community constantly talks to each other. They belong to support groups, women's groups, special interest groups, and word gets around. You could find you're getting many referrals if it's known that you don't pass judgment on their lifestyle.

 

2. Don't discriminate against SM practitioners.

 

It is imperative for you to be nonjudgmental. As a prerequisite to good health care, the patient must trust their physician. To create that trust, the HCP must be receptive. Patients are often inhibited from going to HCP in the first place because of embarrassment/fear of being judged or discriminated against. Many practitioners don't even tell their therapists much less their doctors.

 

You must be aware that there is REAL discrimination and persecution going on against SM practitioners. The analysis of the NCSF Violence and Discrimination Survey indicates that 1/3 of the respondents have suffered discrimination because of their SM practice, and another 1/3 have suffered attacks and harassment because of their SM practice. People lose their kids, their jobs, their spouses, and even suffer estrangement from family members because of the stigma. NCSF has received complaints from people who have been lectured by their doctors to stop what they are doing, or they were made to feel like they were wrong.

Just because you treat and understand a kinky patient, that's not the end of the road. Often you have to make referrals, and you will have to educate other HCP. This includes making them comfortable enough and knowledgeable enough to give quality medical care to the patient.

 

3. How do you talk about SM with your patient?

 

You as the Health Care Provider may be embarrassed about expression of sexuality in patient. Most of us are uncomfortable with discussing sexuality. Medical school doesn't address this issue, and our society is taught to treat sexuality as a joke or something to be avoided.

 

4 out of 5 of the people who participate in the organized SM community are closeted at work or with their friends and family. Some don't even tell their primary partner about the SM activities they engage in. This can cause problems for the doctor when the patient hems and haws and doesn't ask their real question until your hand is on the door knob. It can take up extra time you don't have. So be sensitive to hints and tentative probes - it may be up to you to help them discuss their activities and how it might be adversely affecting their health.

 

Remember that your patients have had no experience talking about this in the way that you require. They may provide too much information about their personal desires and explain their sexual encounters in ways that are embarrassing to you. They aren't trying to shock you - they are simply sharing in the way they've learned through SM support and educational groups. You can gently help them stay on track by asking questions and keeping the dialogue moving.

 

VII. Conclusion

 

We are here because we want to be able to address these needs of our patients, as they can have deep impact upon level of healthcare sought and given. Patients have a right to this. If we don't feel comfortable we should refer to someone else, and not at patient's emotional expense. As LGBT Health Care Providers, I feel we are better equipped to deal with these issues because our sexuality is a more prominent factor in our identity, and we should have more empathy for those who feel marginalized because of sexual practices.

 

We don't have all the info about what the patients' needs are, and they may not tell, or even anticipate all of their activities, and they don't have the medical information to make decisions about safety.

 

How we can appear non-judgmental:

a) Ask about sexual partners/activities when taking medical history
b) Be very careful about judgmental language and use open ended questions.
c) Ask patient to define terms used rather than making assumptions.


VIII. Open up for questions
Monday, 18 June 2007 09:04

Case summary of Nea vs. Findlay

 

Argued: March 31, 1998
Decided: June 25, 1998
Issue: Freedom of Speech -- Whether a law requiring the National Endowment for the Arts to consider "general standards of decency and respect for the diverse beliefs and values of the American public" before awarding grants to artistic projects is impermissibly viewpoint-based and unconstitutionally vague.
Vote: 8-1; No, the law does not violate the First Amendment.
Facts:

In 1990, Congress amended the statute governing the National Endowment for the Arts to require that the NEA chairperson consider "general standards of respect and decency for the diverse beliefs and values of the American public" when awarding art grants. Four artists Karen Finley, John Fleck, Holly Hughes and Tim Miller, known collectively as the "NEA 4" sued in federal court, claiming the so-called "decency clause" violated the First Amendment and forced artists to engage in self-censorship in order to obtain NEA funding.

The trial judge ruled in favor of the "NEA 4," ruling that the decency clause was both unconstitutionally vague and overbroad. On appeal, the U.S. Court of Appeals for the 9th Circuit affirmed for "essentially the same reasons as the district court." The 9th Circuit determined the decency clause was void for vagueness and for violating the First Amendmentâs general prohibition against content- and viewpoint-based discrimination.

Legal Principles at Issue: A bedrock principle of the First Amendment is that government may not prohibit speech just because it finds the speech offensive or disagreeable. Texas v. Johnson, 491 U.S. 397 (1989). Sexual expression which is indecent but not obscene is also protected by the First Amendment. Sable Communications of Cal., Inc. v. Sable, 492 U.S. 115 (1989). The First Amendment protects against viewpoint discrimination above other forms of content discrimination. Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995). When the government promotes a particular program and defines the limit of a program, it can fund speech that promotes its goals, even to the detriment of other goals. Rust v. Sullivan, 500 U.S. 173 (1991). "There is a basic difference between direct state interference with a protected activity and state encouragement of an alternative activity consonant with legislative policy." Maher v. Roe, 432 U.S. 464 (1977).
Legal Basis for Decision: The decency clause only requires the NEA to consider "general standards of decency and respect" rather than directly precluding certain categories of speech. The nature of arts funding requires a certain level of content-based judgment. Because the NEA 4 did not allege "discrimination in any particular funding decision," the Court determined that it had not been presented with a grant denial on the basis of viewpoint.
This Case is Important Because: The Court did not express its usual heightened concern over viewpoint discrimination, because the statute only instructs the NEA to consider "decency and respect" rather than to make funding decisions based solely on those grounds. The decision seems to afford an opportunity for content- and even viewpoint-based laws to be ruled constitutional, as long as they do not directly target certain types of speech.
Quotable: "The terms of the provision are undeniably opaque, and if they appeared in a criminal statute or regulatory scheme, they could raise substantial vagueness concerns." (J. OâConnor)

"Finally, although the First Amendment certainly has application in the subsidy context, we note, that the government may allocate competitive funding to criteria that would be impermissible were direct regulation of speech or a criminal penalty at stake." (J. OâConnor)

"The decency and respect proviso mandates viewpoint-based decisions in the disbursement of government subsidies, and the government has wholly failed to explain why the statute should be afforded an exemption from the fundamental rule of the First Amendment that viewpoint discrimination in the exercise of public authority over expressive activity is unconstitutional." (J. Souter)

Writing for the Majority: Justice O'Connor
Concurrence: Justice Scalia
Writing for the Dissent: Justice Souter

 

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