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Nea vs. Findlay Case

Nea vs. Findlay Case

  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…
Consent Counts

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In the News

In the News

  • NCSF’s Coalition Partners Join Together for Consent Summit

    NCSF’s Coalition Partners Join Together for Consent Summit   The National Coalition for Sexual Freedom held its annual Coalition Partner meeting in Phoenix, Arizona from February 8-10, 2013. The Consent Summit took place Friday evening, and Coalition Partners were able to participate via streaming video to give their input on the new Consent Statement. Go to to see the Consent Statement and comment on it.   “The Consent Statement…

    Tags: Consent_Counts
  • NCSF Survey on Consent

    FOR IMMEDIATE RELEASE National Coalition for Sexual Freedom NCSF Survey on Consent The National Coalition for Sexual Freedom (NCSF) wants to hear from you! Please take our Consent Counts survey and tell us what you think about consent: As part of decriminalizing BDSM in the legal codes, we need to be able to articulate a clear definition of consent that the BDSM communities believe in. The results of this…

    Tags: Survey Consent Counts consent fetlife
  • NCSF Launches the Next Chapter for Consent Counts

    NCSF Launches the Next Chapter for Consent Counts February 27, 2012 The National Coalition for Sexual Freedom (NCSF) announces two new publications as part of its nationwide campaign, Consent Counts. The Consent Counts Project was launched by the BDSM-leather-fetish communities in 2006 to decriminalize consensual BDSM in U.S. law by ensuring that consent will be recognized as a defense to criminal charges brought under assault laws and other statutes. "For…

    Tags: Consent_Counts Press Release consent
  • Action Alert - Take Action Californians!

    Our BDSM communities could be adversely impacted by a well-intentioned, but overly broad, piece of proposed criminal legislation that has been introduced by Senator Christine Kehoe in the California Senate.  NCSF is asking all of you to sign and send to NCSF letters (a draft is attached below) that we can introduce if necessary at a hearing likely to be held in April, 2011. The purpose of the bill, SB…

    Tags: Consent Counts action alerts california SB 430
  • NCSF Press Release - Missouri Indictment

    In an indictment rendered by a Grand Jury in the Western District of Missouri on September 9, 2010, five Missouri men allegedly participated in torturing a mentally disabled woman online or in person over a multi-year period when the victim was between the ages of 16 and 24. Among the charges are: Sex Trafficking by Force, Fraud or Coercion, Forced Labor Trafficking, Transportation for Sexual Activity, and Conspiracy. The allegations…

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Consent Counts: We're Making a Difference

  • Completed Federal and State Legal Research
  • Developed Educational Programs and Outreach Materials
  • Built Alliances With Sexual Freedom Advocacy Groups

About Consent Counts

NCSF is leading a major national campaign—Consent Counts—to change the laws and police practices that our communities now endure, and to establish that consent is available as a defense in criminal BDSM prosecutions.

  • BDSM is prosecuted as assault in the U.S., even when it is consensual.
  • No state or appellate court has allowed consent as a defense to assault in BDSM cases.
  • Consent Counts is a nationwide project to decriminalize consensual BDSM.
Program Goals:
Consent Counts
is a nationwide project to decriminalize consensual BDSM through education, advocacy, legal actions and lobbying.


Judy Guerin
Director, Consent Counts 
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