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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…
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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.
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