William H. Rehnquist: We'll hear argument first this morning in Number 97-371, National Endowment for the Arts v. Karen Finley. General Waxman.
Seth P. Waxman: Mr. Chief Justice, and may it please the Court: Since 1965, the National Endowment for the Arts has selectively provided funding, public funding to arts projects on the basis of aesthetic judgments in order to enrich the lives of all Americans and to expand public appreciation of art. The question presented in this case is whether, although it thus expands the opportunities for artistic expression, Congress violated the First Amendment... that is, made a law abridging the freedom of speech... by directing that the NEA ensure, quote, that artistic excellence and artistic merit are the standards by which applications are judged, taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public.
Anthony M. Kennedy: I'm sure the Court is as anxious as I am to get to the merits. Do you think this case is justiciable? You took the position in the district court that it was not. What's the best case that makes it justiciable, if you think it is? It seems remote.
Seth P. Waxman: Justice Kennedy--
Anthony M. Kennedy: It seems not concrete. The plaintiff originally sued because he didn't get a grant. Then he sued because he did. I don't know what he wants to produce. I don't know if he's been denied any specific rights.
Seth P. Waxman: --Justice--
Anthony M. Kennedy: I'm dealing with the question in the abstract, it seems.
Seth P. Waxman: --Justice Kennedy, I think that the question of Article III justiciability, which of course must be measured at the time the suit was commenced or, really, in this case at the time that the pre-1990 claims were settled and all that was left in the case was the facial challenge to the 1990 act, is a close one. In the district court we challenged Article III, the Article III justiciability issue both on the question that these plaintiffs lacked standing and also because, since the agency had adopted an interpretation that basically concluded that the 1990 language was satisfied merely by the creation of extremely diverse panels and that decency and respect were not expressly to be considered as independent factors at the grant-making stage, the agency was in the process. Process was in effect no different than it had been before, other than the fact that the diversity of the panels was greater, and therefore our view was that the agency was not doing anything significantly different after the district court ruled than before it ruled, and conversely, if this Court were to agree with our statutory interpretation, the agency would be permitted, although not compelled, to continue to operate the program precisely the way it's operating now. Now, this was not an issue that we raised on appeal or we raised in our petition in this Court, and I wish I could tell you exactly why that's the case, because I wasn't there, but I suspect that we concluded that there was some marginal concreteness, or some marginal justiciability here by the fact that before... between the time that the 1990 amendment was passed in November of '90 and the time that the district court issues, issued its injunction in June of 1992, we actually read to the panel members the language of the statute. We then told them that they were to judge applications on the basis of artistic merit and artistic excellence, and that the other words, the words that follow taking into consideration, had been taken into consideration by the creation of extremely diverse panels in which each person from a diverse walk of life would bring his or her own individual sensibilities to that question, and we argued to the district court that, in fact, the case was not justiciability. There was no injury and there was no redressability possible. In fact, during the period between the time that the 1990 amendments were passed and the district court ruled, three of the five plaintiffs in this case received grants under the standard that they had concluded was unconstitutional and a fourth had benefited indirectly from a grant given to an organization.
Antonin Scalia: General Waxman, let me see if I understand you. I gather that you have no doubts on the Article III question if your interpretation of the statute is not correct--
Seth P. Waxman: That is correct.
Antonin Scalia: --in this facial challenge. The statute which says, taking into account, requires that in passing upon the applications the panels, diverse though they may be, must take into account decency and the--
Seth P. Waxman: Respect for the diverse beliefs and values of the American people.
Antonin Scalia: --beliefs and values, right, okay.
Seth P. Waxman: Yes. If, in fact our--
Antonin Scalia: Do they, indeed, ensure that they have decent panels? I mean, how do they go about ensuring that? [Laughter]
Seth P. Waxman: --They ensure... Justice Scalia, they ensure that they have diverse panels, and--
Antonin Scalia: But that's just half of it. I mean, it says decency, standards of decency and respect for diverse beliefs and values. I... it's... I guess it's easy to get diverse... maybe it's easy to get diverse, but how do they ensure decency?
Seth P. Waxman: --Well, the chairperson has the discretion to create the pro... the selection procedures any way she or he wants, so long as he is satisfied or ensured that general standards of decency will be taken into account in the process. The NEA thus far has considered that, since... for most people--
Antonin Scalia: What do you mean, in the process?
Seth P. Waxman: --In the process of--
Antonin Scalia: In the process of selecting the panel?
Seth P. Waxman: --In the process--
Antonin Scalia: How do you take into account standards of decency in selecting the panel?
Seth P. Waxman: --In... no.
Antonin Scalia: I don't understand how you do that.
Seth P. Waxman: In the process of deciding which proposals will be granted on the basis of merit and excellence, and here's how the NEA has construed the statute to work. The NEA Chair thus far has concluded that whatever factors an individual takes into consideration in deciding whether something is art, nonethe... not to mention artistically excellent and artistically merit, meritorious, may be considerations of the mode and form of expression in the case. It's not dispositive, but if it includes a mode or form of communication, the kind of thing that this Court distinguished from viewpoint in Denver Area, and Pacifica, and Pico, and Bethel, that it... the NEA concluded that many, if not most, if not all, certainly at least some people in deciding whether something is really artistically excellent or meritorious or how much it is, will at least think about the mode or form of the presentation that the artist is using, and that's--
William H. Rehnquist: Well, quite apart from the... what the NEA has done, I've got some difficulties about the standing question akin to those that Justice Kennedy mentioned. I mean, certainly people can't just walk in off the street and make a facial challenge to a statute, can they? They have to have some connection with what's being done under the statute.
Seth P. Waxman: --Absolutely, and what's so... I don't want to use a pejorative adjective. What's so unusual about this case is that the plaintiffs in the case, who were very successful in forcing Congress to reject what was the alternative to this amendment, the Rohrabacher provision that would have prohibited the NEA from funding any art that manifested certain viewpoints, and Congress instead passed a compromise provision along the lines of the recommendations of the independent commission that it had appointed, the same organizations, the same plaintiffs who were successful in the legislature in defeating a viewpoint-discriminatory prohibition, have challenged this provision on the grounds that our interpretation, the way that the NEA has chosen to interpret the statute is wrong, although it's wrong in a way that benefits them.
Anthony M. Kennedy: Well, I think you can take one position in the legislature and another in the courts. The question is, what does the statute say, is there any injury, and I--
Seth P. Waxman: What's... right. What's unusual in this case is that the courts have... are being asked to reject an interpretation, an application of the statute that the agency has reasonably made and which does not, concededly does not violate the First Amendment rights.
Sandra Day O'Connor: --Well, Mr. Waxman, could we talk about the statutory language? You know, just reading it, I thought it meant that the chairperson of the NEA had to ensure that its... that the regulations and procedures were to provide that artistic excellence and artistic merit are the criteria, but in considering the excellence and merit, they have to take into consideration general standards of decency and respect for diversity. That the interpretation suggested by the agency that just setting up the panels differently was enough strikes me as possibly in conflict with the language of the statute.
Seth P. Waxman: Well, Justice O'Connor, both lower courts agreed with you. We still submit that there are two possibly--
Sandra Day O'Connor: Well, if that is the meaning of the statute, do we nonetheless have a justiciability question, or do you think--
Seth P. Waxman: --I--
Sandra Day O'Connor: --if that's the meaning of the statute we don't have a problem of justiciability?
Seth P. Waxman: --I'm not sure. I know that the plaintiffs would claim that insofar as any decisionmaker along the line, whether it be a panel member, a council member, or the chair, takes into consideration these two factors, they believe that they are harmed in some way. We don't think that they have demonstrated in any tangible way that they have established injury, in the sense that none of them suggests that they have applied for an application and been denied it because an impermissible reading of these... a viewpoint-discriminatory reading of these words caused it.
David H. Souter: Well, do they have to have suffered a denial? I mean, their claim is that the statute on its face, if read as Justice O'Connor suggested, in effect is a limitation based on viewpoint which tends to and reasonably will tend to affect both the production of art and the applications, so that even before you get to the stage of granting or denying, you in fact will have had an impermissible effect. Isn't that their argument?
Seth P. Waxman: Well, I guess if we're talking now simply about justiciability and not the merits, and I'll restrict my comments accordingly, first of all, because of the way the agency has interpreted this statute before it was very shortly enjoined from doing it at all, it hasn't had the occasion to define the terms general standard of decency and respect for diverse values. But the way in which... if this Court were to conclude that the statutory interpretation that the NEA adopted was not only the best... not the best interpretation, but was an unreasonable interpretation by the agency charged with carrying it out, the appropriate course at this point would be to allow the agency to define the terms and... in order to determine whether or not they are in fact viewpoint discriminatory at all. We contend in our brief--
David H. Souter: Now, are you suggesting that we would find it nonjusticiable because they have not gone through the process of defining--
Seth P. Waxman: --Not because they haven't... not because they haven't gone through the process, and again this falls a little bit into the merits, but I think the justiciability is very much in question, because these terms, general standards of decency and respect for diverse beliefs and values, can be defined by the agency, could readily be defined by the agency in a manner that is not viewpoint discriminatory, as--
Ruth Bader Ginsburg: --Are you saying, General Waxman, that if the law is as you say it is, then nobody is being hurt because these words are largely hortatory, is that essentially your position, and that challengers can't say, agency, you've got it wrong, you have to interpret this more strictly against us than you're willing to do? Is that the essence of your justiciability--
Seth P. Waxman: --Well, that's... that's the essence of why we think, if our reading is right, there probably is not much of an Article III case or controversy.
Antonin Scalia: --Even if your reading is wrong, aren't you saying--
Seth P. Waxman: Even if our reading--
Antonin Scalia: --that even if your reading is wrong?
Seth P. Waxman: --Even if... right. The point, Justice Ginsburg, that I was making to Justice Souter is that even if you reject that, even if you say no, what this means is that when these--
Ruth Bader Ginsburg: But how would we even get to that? You see, if the challengers are stuck with what the agency says the law is, because that's the only thing that's being applied currently, how can a challenger then require... bring this question to us unless what they're saying is, what's on today could be off tomorrow, and that's their real concern, because you're not saying that the only construction of these words is the one that you're putting on it.
Seth P. Waxman: --No, that's... we're absolutely not, but I think the appropriate course for this Court to take if it rejects... if it concluded that our statutory interpretation was unreasonable would be to permit the agency... after all, none of these people have grants that have... this is not an as-applied challenge. The appropriate course would be to permit the agency to define and apply general standards of decency and respect and see whether it's done in a way that could be said to violate the First Amendment at all.
David H. Souter: Hasn't it had 8 years, hasn't it had 8 years to do that?
Seth P. Waxman: Precisely to the contrary. During the year-and-a-half period in which the language was passed and the district court enjoined the agency from applying it, it said, we think that this provision can be satisfied... that is, that the chairperson can ensure that these things will be taken into account... when you have a diverse... when you have a diverse group of people who bring their own sensibilities to bear in making aesthetic judgments. Since then, the agency has been precluded from doing anything. We have been under an injunction since June of 1992 from implementing this statute in any way.
David H. Souter: Even issuing a reg?
Seth P. Waxman: Of course. We can't even read to panelists what the statute says.
William H. Rehnquist: Why didn't the Government seek a stay from a single-judge injunction?
Seth P. Waxman: I think the answer... I don't know the answer to that question.
Antonin Scalia: You weren't around then, either, right?
Seth P. Waxman: I was around-- [Laughter] I was around in the physical... in the existential sense I was-- I was in the process of a private citizen, indeed a private lawyer very much enjoying the arts in all of their manifest expressions.
Ruth Bader Ginsburg: But that's in the--
Seth P. Waxman: But let me just say this, we--
Ruth Bader Ginsburg: --General Waxman, that's been affirmed on... that view that the law is unconstitutional been affirmed on appeal, and there was a denial of rehearing en banc.
Seth P. Waxman: --That's true, and I think that--
William H. Rehnquist: Nobody sought a stay from this Court.
Seth P. Waxman: --And I... if... Mr. Chief Justice, if I can just get to what I thought my... the pitch was going to be after my wind-up, the point is-- [Laughter] --that the agency has never see its... the agency views what the district court did as essentially enjoining it from doing something that it wasn't doing, and didn't particularly think had to be done, and so the only tangible way in which the agency's operation of this program has been affected by the district court order and the court of appeals order is that when it talks to new panel members it can't read them the statute, read them the words of the statute. It just tells them it's artistic excellence and artistic--
John Paul Stevens: General Waxman, are you trying to persuade us that, even after the statute was passed, Andres Serrano would have the same chance of getting a grant as he did before?
Seth P. Waxman: --Well, I don't know whether... I don't think we have to--
John Paul Stevens: Yes, but that's what you're arguing.
Seth P. Waxman: --decide whether he would have the same chance, but what I'm suggesting is--
John Paul Stevens: Well, if he has a lesser chance, doesn't the... hasn't the statute had some impact?
Seth P. Waxman: --Well, I... we don't think actually that he would have a lesser chance. Congress rejected... and the legislative debate which we've reprinted in our brief, in our reply brief, is very instructive. Congress rejected a provision that would have denied funding to the Merchant of Venice or Rigoletto, or D. W. Griffiths' Birth of a Nation. It wanted those provisions to be funded. It just wanted to make sure that in the process of deciding what is the most excellent art in a program which is designed to benefit the American people and expose people, including young people and people in rural areas, to the benefits of artistic expression, that those things were taken into account. The agency's view, Justice Stevens, is that many people... I know it would be true of me... who go into an evaluative process as to whether something is art, or excellent art, or meritorious art, or art that's... that the Congress can spend taxpayer's money to fund, one of the things you think about is the mode of expression. It can either add to or detract from the merit of the proposal, but it's not irrelevant.
John Paul Stevens: It seems to me you're going to have a hard time persuading me the statute's essentially meaningless, which is basically what you're arguing.
Seth P. Waxman: Well, we... I feel like I'm here making an argument in support of a... we didn't--
Anthony M. Kennedy: I have the same problem. Suppose the statute said that each and every grant must meet the following standard, and then it set forth the statutory standard, and that each panel member will certify that as to each particular artist whose work has been approved, that this statute has been met, is your position the same?
Seth P. Waxman: --In other words, if, instead of having two criteria with considerations, there were four criteria that had... and each thing had to be judged?
Anthony M. Kennedy: Yes.
Seth P. Waxman: Our position would be twofold. One, because we think that standards of decency, or general standards of decency and respect for diverse values can be defined in a manner that does not take account of viewpoint, that is not viewpoint discriminatory, for that reason the provision would be constitutional. As a fallback, if you didn't... if you thought that it was absolutely unreasonable for the agency to conclude that those provisions couldn't be defined without reference to viewpoint, you would have to then address... we would have to then address the very difficult question that Congress thought in passing this compromise you wouldn't have to address. That is, do we have a statute that establishes independent funding prohibitions that can't be viewed other than as viewpoint discriminatory, and we do acknowledge that that would pose additional First Amendment concerns, but they were concerns that this... that Congress didn't intend that this Court address. One of the reasons... the Congress was told with respect to the Rohrabacher amendment that it may very well be constitutional. There was a big argument among the First Amendment scholarly community, and they very deliberately chose a provision which they thought was going to not embroil the agency in a kind of litigation, endless litigation over its meaning, much the same as the decision that the--
Anthony M. Kennedy: Well, I would think--
Seth P. Waxman: --If I may just finish... much the same as the decision the Combined Federal Campaign made in the Cornelius case.
Anthony M. Kennedy: --I would think that most artists would say that they're interested primarily in mode of expression. Did Picasso have a viewpoint? I think he was more, much more interested in mode of expression.
Seth P. Waxman: I--
Anthony M. Kennedy: It seems to me ultimately that's an unstable line you're drawing.
Seth P. Waxman: --Well, I do respectfully disagree to this extent, Justice Kennedy. There is no doubt that in considering the content of a work of art, you consider the subject matter, the medium, the mode of expression, and the viewpoint expressed if it's a kind of art that is expressing a viewpoint, or could be interpreted as expressing a viewpoint. This Court has recognized on several occasions that decency, in the term that it was used in Pacifica, and Denver Area, and Pico, and Bethel, and Kohlmeier is distinct from viewpoint. Yes, use of indecent speech or controversial speech may very, very well add to or subtract from the force of the message, but it's not the same as viewpoint, and similarly--
Sandra Day O'Connor: Well, will you help me with some just basic inquiry? If the Federal Government wants to buy artwork to put in the Capitol, I assume it can go out and select works of art that its committee thinks are decent and represent diversity, and can spend the Federal money for that kind of art, and it isn't open to challenge, is that right?
Seth P. Waxman: --Assuredly right.
Sandra Day O'Connor: Now, if the Government wants to educate children, or people, and chooses to speak by way of paying for certain kind of artistic expression as a means of the Government speaking and educating, and insists on decency and diversity, it can do that.
Seth P. Waxman: We believe that it can.
Sandra Day O'Connor: All right. Here, it has a limited amount of money to give away. Now, what is it that makes it impossible for the Government to give a limited amount of money away on the same standards? Is the Government not speaking? I mean, what do we have here?
Seth P. Waxman: I will state the obvious and suggest that the question probably would be better answered then my friend Professor Cole, because we don't think that there is any constitutional problem here with this provision. I mean, the argument on the other side boils down to the fact that 3 years ago this Court decided, in a context that is wholly different than the one we have here, a case called Rosenberger v. The Rectors and Visitors of the University of Virginia.
Ruth Bader Ginsburg: General Waxman, may I suggest that maybe there is something different? Maybe if a faithful executive is trying to carry out the legislative will, the message that comes from the whole history of this is, don't fund Serrano or Mapplethorpe. I think that that's the concern, and not the Rosenberger v. Rust, or... that, if I am an executive who is trying to be faithful to the legislative will, I know what prompted this, so why don't I say, well, that's my marching orders. I know what the legislature didn't want.
Seth P. Waxman: Well, I guess I have a couple of answers: 1) a chairperson could have done that. Chairpersons, as the other side points out, were highly cognizant of political concerns without the enactment of this rather innocuous amendment. That's number 1. Number 2, what the 1990 legislative debate shows is exactly the opposite. The point of view expressed in the Rohrabacher amendment and previously challenged by Representative Biaggi that certain art that is viewpoint discriminatory or denigrates religion or races won't be funded was rejected. And the legislative history is shot through and through with the fact that what Congress wanted was what the independent commission it had appointed was... had suggested, which is that you change the procedures, you not employ specific content or viewpoint prohibitions, and to the extent you want things like decency to be considered, it be embedded in the subjective, aesthetic judgments about what's meritorious and excellent.
Antonin Scalia: General Waxman, I thought your first response to Justice Ginsburg's question was going to be, so what? I thought that what you responded to Justice O'Connor was, the Government doesn't have to buy Mapplethorpe pictures to hang up itself, and so also when it funds the arts, it doesn't have to fund Mapplethorpe, and it can say we don't like Mapplethorpe.
Seth P. Waxman: I knew that that would... I knew you would support-- [Laughter]
Antonin Scalia: You knew I was going to say that.
Seth P. Waxman: May I reserve the balance of my time for rebuttal?
Stephen G. Breyer: But why isn't he right? Why isn't he right?
Seth P. Waxman: Well--
Stephen G. Breyer: I mean, does the Government have to or not?
Seth P. Waxman: --Well, if you're talking about... if we're talking about whether Congress can say, okay, the NEA is going to apply the following standards but it's not going to fund Robert Mapplethorpe, that raises many different constitutional concerns that don't have... in other words, going to single out one particular person, at that point may violate... it would have to be scrutinized under, for example, the Due Process Clause as to whether there is a rational basis--
Anthony M. Kennedy: Well, is it constitutionally principled for the Government to do this by a wink-wink, nudge-nudge-- [Laughter] --approach, which is what you're suggesting, that they pass a statute which is really meaningless, but everybody knows what it means?
Seth P. Waxman: --That's... that is not... that's not, Justice Kennedy, what we're suggesting was done here. What was done... this is... almost a year ago to the day I was up here arguing the constitutionality of the Communications Decency Act, which was an act that Congress passed without any hearings and without any debate, and without hearing anybody's views, and was just stuck in on the floor in a rather quick attempt to deal with a serious problem. In this case, Congress did just the opposite, and it rejected the kind of provision for... whether it had to or didn't have to, it rejected as more First-Amendment controversial the Rohrabacher provision that had been urged. It--
Antonin Scalia: But you assume that that's unconstitutional. What if Congress doesn't name names? It just says, no crucifixes in urine. Can it say that?
Seth P. Waxman: --I... Justice Scalia, I--
Antonin Scalia: Can it say that? It doesn't name any names.
Seth P. Waxman: --Justice Scalia, I am not assuming... I'm not standing up here arguing that it would be unconstitutional. I think it may well be that in the unique circumstances of public arts funding, unlike the very different context in Rosenberger, viewpoint distinctions may be constitutionally defensible.
David H. Souter: So you in effect are saying, I'm not going to rest my argument on the claim that the Government is hiring anyone to speak here, or that what it's doing bears an analogy to that, or that in fact the Government is buying art, or that it bears an analogy to that. You're really saying there's a third rule, the Government... the Government as distributor of largesse to the arts, and that, that's a third rule, but you're not saying that the Government is either the speaker or the buyer, is that correct?
Seth P. Waxman: Well, I think the Government is the buyer. The--
David H. Souter: What's it buying?
Seth P. Waxman: --It's buying--
David H. Souter: What does it own, when it... after the grant?
Seth P. Waxman: --This... I think this is a distinction without a difference to our argument, but it is... in fact it's behaving as Governments and sovereigns as arts patrons always have. When the Medicis--
David H. Souter: Yes, but the King ended up with the picture. The Government is not ending up with the picture.
Seth P. Waxman: --The King did not necessarily end up with the picture. The Medicis, for example, funded art that was placed in... all over their realm. The same people who funded and allowed to flourish the great university, that forum, that community where free and uninhibited expression of debate and views occurred, were also arts patrons, and they bought and funded what they liked.
David H. Souter: Okay, then you are saying there is an art patrons rule. I take it you're not hitching your argument either to the claim that the Government is buying, or the claim that the Government... what is my-- --Is speaking. Is itself the speaker.
Seth P. Waxman: Well, I think--
David H. Souter: Is hiring its speaker.
Seth P. Waxman: --Yes. To the... if you're asking whether we're suggesting that there is something unique, particularly unique about the Government funding of the arts for First Amendment purposes, the answer is yes, and for a variety of reasons. For one thing, and most critically, this is an area in which Government decisionmakers are expected and required to make precisely the kind of aesthetic judgments which are subjective and may take content and viewpoint into account, and which the Government is ordinarily prohibited from doing. It's--
David H. Souter: Why are they required, when they're not required to do this at all? Why is the Government required, when the Government is not required, in fact, to fund the arts at all? Where does the requirement come from?
Seth P. Waxman: --Unless you have a program, Justice Souter, in which the NEA is simply disestablished because of a belief that the First Amendment wouldn't permit funding of the arts, or unless you can set up a program where, you know, the proposals that were on the thickest paper, or the ones that came in, you know, first, were granted, inevitably the decisionmaker is going to be making the kind of aesthetic judgments that, for example, were not permitted in Ward v. Rock Against Racism. Thank you.
William H. Rehnquist: Thank you, General Waxman. Mr. Cole, we'll hear from you.
David D. Cole: Mr. Chief Justice, and may it please the Court: As the Government concedes, this is not a case about Government speech. It's not a case about the Government hiring artists to express a Government message. Rather, it's a case about the Government selectively subsidizing private speakers speaking for themselves, and in that setting two fundamental First Amendment principles apply, and the decency and respect clause violates both. First, the Government subsidies must be viewpoint neutral. This Court has held that in Lamb's Chapel, in Rosenberger, in Cornelius. Second--
William H. Rehnquist: Rosenberger was quite different from this, Mr. Cole. There were just a number of... everybody was going to get something in Rosenberger except the people who wanted to do something religious. Here, the Government doesn't purport to say we're going to give grants to everybody that wants it. There's a definite degree of selectivity involved.
David D. Cole: --There is a degree of selectivity involved here but there was also, Chief Justice Rehnquist, a degree of selectivity in Rosenberger. Approximately 9 of 10 applicants were funded in Rosenberger. Approximately 2 of 7 applicants to the NEA are granted.
William H. Rehnquist: Well, that's quite different, I think.
David D. Cole: Well, I don't think it makes a constitutional difference, and I think when you look at Rosenberger what Rosenberger... what the University of Virginia did was, they said we will fund not any student activity that comes to us, but any student activity that is related to the educational purposes of the university, so they were selective. They were making a content--
Anthony M. Kennedy: Yes, but I think the Chief Justice is correct in making the distinction. There were no aesthetic judgments to be made. There were no subjective judgments to be made. If you were a student newspaper you fell within the program. That was it. And I think your statistical analysis is misleading, because NEA statistics are that they have only so many funds and they base it on aesthetics. The only reason there were rejections in Rosenberger was, they just didn't... they weren't the kind of newspapers that were under the program. So I think the Chief Justice is correct in the distinction he makes.
David D. Cole: --Well, I'm not sure, Justice Kennedy, whether there's a distinction between a Government agency which makes judgments about educational purpose and allocates funds selectively on that basis, or academic merit, which is what public universities do in hiring, and the NEA, which makes judgments base on artistic merit. All of those programs are selective. They take into account consent. But what this Court has said is that you cannot, when subsidizing private speakers, when the Government is not speaking itself you cannot engage in viewpoint bias, and the decency--
Ruth Bader Ginsburg: Mr. Cole, may I suggest that one is a prize or an award, and there really is a difference between a student activity fund that if you're not social and you're engaged in some respectable student activity you get it, and an award, a prize, a grant that is highly selective, and so I quite agree, and I don't think that you can maintain that this is just like Rosenberger, just like a bulletin board, anybody can put up their names or draw from that pot except certain people.
David D. Cole: --Okay. Well, Justice Ginsburg, I don't think that the Rosenberger case would have come out differently if the University of Virginia had a limited pot of funds and it said, based on that limited pot of funds we're going to give funding to those groups which best further the educational purpose of the university, and they... it turned out they gave them out to 2 of 7 applicants, but they excluded religious groups, groups with religious perspectives. That would still be an exclusion based upon viewpoint, which would be impermissible, and I don't think the case would have come out differently if it 2 of 7. The Court in Rosenberger said scarcity is not a justification for viewpoint discrimination.
Antonin Scalia: You're a better predictor than I am. I'm not at all sure it wouldn't have come out differently.
David D. Cole: Well, you were in the majority, so you're a better predictor than I am, I'm sure. [Laughter] But I don't think it should come--
Antonin Scalia: My record's not too good. I wouldn't-- [Laughter] I wouldn't give up too easily.
David D. Cole: --I guess... I think what's important is that it shouldn't come out differently, and here's why. What Rosenberger recognized is that there's a very big difference between the Government speaking for itself, where it can make viewpoint decisions, as in Rust, and where the Government is facilitating private expression. Why is that an important distinction? I think that's an important distinction because there's a very big difference between the Government participating in the marketplace with the power of its ideas on the one hand and the Government engaging in a kind of deceptive ventriloquism in which it says it's funding a broad range of private expression, but then it uses viewpoint-based criteria to exclude--
Sandra Day O'Connor: Well, I'm not sure that decency or indecency is viewpoint-based. I'm not sure it is.
David D. Cole: --Well, I think--
Sandra Day O'Connor: I'm not sure that respect is a viewpoint-based thing, or diversity. I don't even know what this is, and you've got some kind of a facial challenge here, I gather.
David D. Cole: --Right. Well, I--
Sandra Day O'Connor: And I'd be interested for you to also pursue whether we have an Article III case at all here.
David D. Cole: --Okay. All right. Well, I'll answer your questions in turn, Justice O'Connor. First, decency and respect are inherently, as they are used in this statute, viewpoint-based. It's common definition of decency is conformity to accepted standards of morality. That's what this Court said in Pacifica, conformity to accepted standards of morality. Whether something conforms or not is a viewpoint distinction. The same subject matter, if it's treated in a way that conforms to accepted standards of morality, is permitted. If it's treated through a viewpoint that does not, it is not. The same with respect. The respect clause requires respect of American beliefs and values. If you are disrespectful of American beliefs and values, you are disadvantaged. If you are respectful, you are advantaged. That... the Court in Rosenberger said the way you distinguish viewpoint--
Sandra Day O'Connor: All right. You don't argue here that somehow the Government has created some kind of a public forum, do you?
David D. Cole: --Well, in essence that's what the NEA says. The NEA says that the arts funding--
Sandra Day O'Connor: I didn't hear that.
David D. Cole: --Well, they say in their mission statement, and it's cited in the record, that they create a national forum for the exchange of ideas by creating, as is set forth in the statute, a--
Sandra Day O'Connor: Well, I'm talking about a public forum in the sense that this Court had used it. Do you take the position and rely on some kind of forum analysis, then?
David D. Cole: --Well, I think under forum analysis we win. I think under forum analysis, as this Court has said, even if you conclude that it's a nonpublic forum--
Sandra Day O'Connor: That doesn't answer the question. Do you take the position that this funding program creates some kind of public forum?
David D. Cole: --I--
Sandra Day O'Connor: Yes or no.
David D. Cole: --We take the position that whether it does or not we prevail because this Court has held that even in a nonpublic forum viewpoint neutrality is required and vagueness is not permitted, and these criteria are both viewpoint-based and vague. If I could address your standing question and Justice Kennedy's standing question for a moment, I think City of Lakewood v. Plain Dealer Publishing clearly establishes that there is standing here. In Plain Dealer... in that case, the Court held that there was standing to bring a facial challenge by a newspaper who sought access to a benefit for speech, access to news boxes. There was no requirement that the city give out news boxes, but they had given a Government official unbridled discretion in how to give them out, and the Court held in that case that the chill from unbridled discretion statutes and the allocation of benefits to speech... no entitlement, benefits to speech... can be alleviated only through a facial challenge.
Antonin Scalia: I think I would agree with you if the agency here were applying the law the way you interpret it and the way the lower courts interpret it, but I do find it strange that where you have a law which, however unrealistic the interpretation may be, the agency says, we're interpreting it in such a way that we will fund Mapplethorpe and everything else.
David D. Cole: Well--
Antonin Scalia: Now, that may be wrong. I don't know how anybody on the other side of this issue could compel the agency to do it right, but--
David D. Cole: --Well, it certainly--
Antonin Scalia: --But why did that hurt you?
David D. Cole: --Well, it hurts us for the following reason, Justice Scalia. The Government has been quite ambiguous about its statutory construction, and what it has said is that the statutory construction it is advancing to this Court today is the same statutory construction that they applied for the year-and-a-half before the statute was declared unconstitutional, so let's look at what they did for the year-and-a-half before the Court struck it down. They instructed each panelist to bring their own standards of decency to the table in making these decisions. They went to each panel, they read them the statute, they said the statute says that you must consider artistic excellence and artistic merit, taking into consideration general standards of decency--
Ruth Bader Ginsburg: Mr. Cole, may I stop you just for a moment, because it sounds like you are veering away from a case that would be fit for summary judgment, which is what this was. I take it there would be some dispute about what went on.
David D. Cole: --I think--
Ruth Bader Ginsburg: There was no hearing about that, to develop that.
David D. Cole: --I don't think there's--
Ruth Bader Ginsburg: The Government... you're making assertions today. I would certainly be interested to find out what the Government's position is on it, but I thought we're dealing with a ruling as a matter of law and that we take the Government's position of what they say this statute means. That's what they say the statute means, and that's what they're enforcing. That's what they represented to this Court, and to say no, they're not telling you the truth about what standard they're applying is quite a charge to make.
David D. Cole: --Well, Your Honor, all I can say is the record is very clear. The reason that it was a summary judgment is that there was no dispute about this. The... Chairman Frohnmayer testified before Congress, was asked, how do you take into consideration general standards of decency? He said, well, I can't... I'm going to read. He said, no one individual is wise enough to be able to consider general standards of decency and the diverse beliefs and values of the American public all by his or herself. These are group decisions. They are made by the National Council on the Arts as well as the panelists. Now, if the chair was making decisions about decency in selecting panels, he wouldn't say these are group decisions made by the Council on the Arts as well as the panelists. He was then asked, what happens if you get--
William H. Rehnquist: He was the chairman of the NEA at the time?
David D. Cole: --He was the Chair... yes, Chief Justice Rehnquist, he was the Chair at the time that the statute was being enforced. He as then asked, well, what would you do... are you advocating your responsibility in applying this statute? What would you do if something came up to you and it was indecent or disrespectful? He said, I would send it back to the panels and the council if I thought they made a mistake. So he's saying, I'll look at decency to make sure that they've not made a mistake. The next Chair, who was also enforcing the statute before it was struck down, Ms. Radice, testified in Congress that she would be happy to and would apply decency to the grant-making process. So I think you have to look... at this Court said in Forsyth County, in a facial challenge you have to look at how the agency has in fact applied the statute. There's no dispute about it. And they're quite vague, actually, in this Court in what they say.
Stephen G. Breyer: They're quite vague about how they apply it, I agree with that, but I also found right in the record what the Solicitor General just quoted was there, on page 33, the instructions that they give, so if you have an... I assume you don't object to that as a correct... my basic question is, given the uncertainty that you... you started with a premise, and if I accept that premise a lot flows. You said, all they're doing is subsidizing private views here, but in looking at the endowment charter it sounds as if they have a lot they do. It talks about education. It talks about grants to schools. It talks about workshops. It talks about teaching children. It talks about a whole host of things that aren't simply that that could include giving money to somebody to teach art in the public school grade 4, that could include having a television program on Sesame Street... dozens of things, all right. Is... am I accurate?
David D. Cole: Yes.
Stephen G. Breyer: All right. Well, if I'm accurate, how can you have a facial challenge no matter how you interpret indecency, because after all there are some important uses where the most tough definition would apply.
David D. Cole: Well, Justice Breyer, two points with respect to that. First of all, I think you have to look at the breadth of the statute. This statute does not say, take into consideration decency where children are involved. It requires the agency to take into consideration standards of decency and American beliefs and values in every application decision. Secondly--
William H. Rehnquist: Well, we've said you can't bring a facial challenge if any part of the statute can be constitutionally applied.
David D. Cole: --And our position is that this statute is unconstitutional because it is viewpoint-based, it uses a viewpoint-based criteria... it would... it would be--
William H. Rehnquist: If you say it could be... the language could be applied where children were involved, you lose your facial challenge there.
David D. Cole: --I don't think it could be applied where children... but what the Court could do in a... what the agency could do is decide whether a particular application was suitable for children, but an application could be suitable or unsuitable for children for all sorts of ways that don't have to do with viewpoint. What's problematic about this statute is, it singles out art precisely because it has a nonconforming or disrespectful viewpoint and, as this Court has said, even when the Government is allocating subsidies, if it's doing it to private speakers it can't skew the marketplace by attempting to impost that kind of ideological screen. I think--
Stephen G. Breyer: No, that wasn't my question. My question was basically, you're making a facial challenge. I don't see it says all, not in my version it doesn't say all, and as long as there... the problem in my mind, for you, is I can easily think of some... some instances of importance in the life of the NEA where it would be obviously appropriate or lawful to take into account even tough standards of decency, and the other problem for you is, I don't know what the word decency means. It... there's certainly a sense of decency, a sense of it, in which no work of art that is good could be indecent. It's very hard for me to think, if I think of that sense, that a great work of art is also an indecent work. I can't think of one. So since we don't know either the... let's call it the horizontal meaning, or the vertical application, how can we now strike the statute down on its face?
David D. Cole: --Well, Your Honor, in the Lakewood case the Government came forward and said certainly there would be appropriate considerations that the mayor could use in deciding how to allocate these benefits to speech. The Court said that is not permissible to defeat a statute which is vague and gives the agency--
Stephen G. Breyer: Well then, should we also strike down the entire NEA, because at the very beginning of it, after all, there is at the very beginning all kinds of language about how this has to be done with general regard for taxpayer sensibilities, and do we have to strike down the FCC statute because the FCC says award licenses in the public interest, which has been plainly interpreted to give the FCC power to do all kinds of restrictions in the area of indecency. I mean, there are lots of statutes on the statute books that have general language that might be interpreted by an agency to censor in accordance with viewpoints, but the agency doesn't do it. Correctly so. Do you see my point?
David D. Cole: --Well--
Stephen G. Breyer: My question is, why should we not give them the same presumption we give to every other agency? They'll do it properly, we assume, until they don't.
David D. Cole: --Well, first of all they did it, and you can see how they did it--
Stephen G. Breyer: The client got the grant.
David D. Cole: --The client... the way that this statute... the way that this statute was enforced, they never issue a decision saying, you're denied because of indecency. We... I represent the National Association of Artists' Organizations, which represents 500 arts institutions and individuals who have regularly applied for, are denied funding by the NEA. What the... the claim is that the application of such open-ended criteria to an applicant creates a chill which, as this Court held in Lakewood, requires a facial challenge, and you can't sit back and let that chill affect artists' speech in the meantime.
Antonin Scalia: And that would be so no matter how the agency itself is interpreting the statute, because you claim that the possibility of interpreting it to mean what it says is substantial enough that artists who are developing projects are not likely to develop projects that would offend--
David D. Cole: Well--
Antonin Scalia: --the statute as it's written?
David D. Cole: --Well, I think certainly it applies here, where the agency did apply it in a way that was chilling. The language does not permit an--
Antonin Scalia: Let's assume the agency didn't, because I think that's going to be a very controverted proposition that wouldn't justify a summary judgment. Let's assume that the agency has not interpreted it in such a way that there's any constitutional violation of the sort you allege, but let's also assume that you claim that in doing it that way, they are not complying with the proper interpretation of the statute, all right. Would you not still make the argument that since the statute says something different from what they're doing, our First Amendment cases, which allow challenges of a much broader scope than in other fields, would enable your clients to say that they are being deterred from developing indecent artistic programs by the statute that's staring them in the face, even though today the agency has said, well, we're going to ignore it? Isn't that your argument?
David D. Cole: --Well, that is... that is... we would make that claim, but we would also make the claim, Justice Scalia, that the Government itself took... has taken the position in this litigation that the statute is indeterminate, and no one can guess how the chairperson might implement the statute.
William H. Rehnquist: If you take Justice... if you answer yes to Justice Scalia, then you're just sticking pins into yourself, basically. You're saying that things are all right now, but if they really opened up on this thing, they might be worse later.
David D. Cole: No, I'm not saying that, Chief Justice Rehnquist. I'm saying if that were the case, but that is not the case, as the record makes absolutely clear, and secondly, I'm saying that even... even if the agency were somehow able to read a statute which says, decency and respect must be considered, to say decency and respect will not be considered, the agency can't do that. The statute simply cannot be read in that way.
Antonin Scalia: Now, I don't know why you've run away from this. Suppose you had a municipal office that issues parade permits, and it sets forth criteria that are plainly discriminatory. It says, we won't allow parades by this group, that group and the other group, and plainly unconstitutional, but the agency in fact says, well, that's what it says, but we don't really apply these regulations that way, you'd have a First Amendment claim to--
David D. Cole: That's right.
Antonin Scalia: --to challenge the regulation as written, wouldn't you?
David D. Cole: That's right. All I'm suggesting in response to Chief Justice Rehnquist is that is not the facts of this case, but yes, we would have a claim, and I think--
Stephen G. Breyer: Now, is it the case, just to go to the merits for a second, and I'm only asking these questions in order to get your response, say, if, in fact the NEA wants to give a grant for somebody to produce something that's public work, and suppose what they do is a white supremacist group, and they want to have racial epithets all over the picture, and the NEA says we think that's an inappropriate use of this money, in your opinion is that... and we can imagine the most... imagine the most horrible ones you can possibly think of, all right, and they say, the person gets up there and he says, I'm a member of the Ku Klux Klan, or whatever, and this is my point of view, and is it your view that the Constitution requires the NEA to fund that, that particular applicant?
David D. Cole: --Well, Justice Breyer, the Constitution doesn't require the NEA to fund anybody.
Stephen G. Breyer: No, no... no, I'm sorry. Everything else being equal, what the person says, I'm taking you at your... you know--
David D. Cole: Right.
Stephen G. Breyer: --Tough, for... take... everything you say is correct, and then we get to this point, and the panel's sitting there and saying, you know, I grant you it's as good a work of art as anything else, purely artistically, but I don't think that this particular work of art is appropriate for a school, for a public place, for a television program. And then the hardest case, you know, which you're most likely to say yes, that's... I agree with you, but it's unconstitutional, just because what this person wants to do is go and exhibit it at a lot workshops. Now, what's your view on that, on the merits of that constitutional question?
David D. Cole: Our position, Justice Breyer, is that it is unconstitutional for the Government to set up the funding program to fund private speech broadly and then to exclude recipients based on their viewpoint. Now, a... the examples you gave might be denied funding for all sorts of reasons, but if it is denied because of disapproval of the viewpoint, that is what this Court has said the paradigmatic First Amendment--
Stephen G. Breyer: So do we have to distribute, or exhibit it in the courthouse?
David D. Cole: --No, because then you're engaged in Government speech. Of course, the Government in making decisions about its own aesthetic spaces--
Stephen G. Breyer: If it's a program... I have that. If it's a program for a school.
David D. Cole: --If it's a program for a school, I think it's appropriate to consider what is suitable for children. I don't think it's appropriate to use viewpoint as a proxy for suitability for children. Suitability for children could take into account all sorts of... all sorts of--
Stephen G. Breyer: So they have to exhibit my example in the school.
David D. Cole: --No. If... if the reason that they have... well, let me step back for one moment. First, if the reason is that they disapprove of the viewpoint that's problematic generally. In the school setting... in the school setting this court has recognized that there's a legitimate inculcative role that the school board plays, and can therefore make all kinds of viewpoint... it is engaged in Government speech, but the NEA... this is not... this is a... the breadth of this statute I think distinguishes it from anything like that, and this is kind of like Romer. You could imagine a situation in which it would be appropriate or not unconstitutional to deny civil rights protections to gays and lesbians, but the breadth of the statute, the application of it across the board--
Anthony M. Kennedy: Well then... then... I take it then that you would say that if general standards of decency were left out of the statute so the statute read, NEA must take into consideration respect for the diverse beliefs and values of the American people, same problem, unconstitutional viewpoint?
David D. Cole: --Well, I think they have to bread together, Your Honor, in--
Anthony M. Kennedy: No. My hypothetical is--
David D. Cole: --Okay. I'm-- [Laughter] On your hypothetical... on your hypothetical, Justice Kennedy, if what it means is that it is favoring those artistic expressions which are--
Ruth Bader Ginsburg: --But that's the problem, what it means, that... and that's... the Government tells us, this is what it means, and you say no, it can't mean that, and two courts have said it can't mean that. And yet the Government is saying, here were words, decent, respect. They can be interpreted different ways, and usually I thought it was the obligation of a Government officer to give words a meaning that renders them consistent, not inconsistent with constitutional limitations, and yet you're insisting that Government officers take the position with respect to these two words that they interpret them in the way that would be most offensive to the Constitution.
David D. Cole: --Well, I'm just saying what they did, and I'm saying that the suggestion that decency and respect might be considered simply through picking diverse panels and no more, and not taking decency and respect even into account in choosing the panels is completely inconsistent with the statute. It would render the... 954(d)(1) redundant of 959(c). Congress in the statute said, decency and respect are the criteria by which applications are to be judged, in 954(d)(1). In 959(c) it said, panels shall be chosen in a diverse way. You can't... they must have meant something when they put the decency and respect clause in the criteria subsection of the statute, and not in the panel selection.
John Paul Stevens: Mr. Cole, may I ask you a question about your constitutional position? We've talked a lot about what the statute means. Assume your meaning... your reading of the statute is entirely correct. As I understand your brief, you draw this distinction between the Government as a speaker and the Government subsidizing private speech, and I have two questions. First, if the Government has a list of topics such as say no to drugs, guns are dangerous, preserve the environment, one, I think you would agree they could subsidize private speech by saying we want poems, plays and so forth advocating those particular causes.
David D. Cole: Right.
John Paul Stevens: And maybe have a list of 20 things. Now, if they can do that by subsidizing private speakers to come up with creative ways of carrying that message, why can they not subsidize all other speech and say, you may not contravene any of the messages we want to finance?
David D. Cole: Well, the reason, I think, is the distinction this Court drew in Rosenberger between Government speech and facilitating private expression, and when the Government comes out and says, we're engaging in a Government speech program, we know, as the citizens of the United States, it is the Government speaking. When they hire artists to do a Say No to Drugs campaign throughout the schools, et cetera, we know it's the Government speaking. We can take that into account. When they, by contrast, set up a program which is purportedly a program to fund--
John Paul Stevens: No, it isn't, because they say very clearly, it's general... for all kinds of speech you can think of except topics 1 through 20. We will finance those, and we will also refuse to finance those who oppose those topics. Now, what... there's no mystery about what they're saying. You're saying that it's kind of a misleading thing because they tell everybody we're subsidizing everything, but I'm saying the statute is perfectly clear that there are 20 topics that may not be controverted. Now, there's no misleading aspect to it.
David D. Cole: --Well--
John Paul Stevens: Why can't they do that?
David D. Cole: --that was Rosenberger. In Rosenberger they said, we're not funding religious viewpoints.
John Paul Stevens: Your whole point... your whole case rests on Rosenberger?
David D. Cole: Oh, I don't think so, Your Honor, because in Lamb's Chapel this Court held that viewpoint discrimination is not permitted in nonpublic forums. In Cornelius it held the same. I think what this Court has said repeatedly is that when the Government is facilitating private expression it cannot engage in viewpoint discrimination.
John Paul Stevens: But you've just agreed it can if you give a list of 20 topics that you will finance, and finance private speakers to speak any way they want to on those topics. It is doing it on a purely viewpoint-based ground.
David D. Cole: Oh, well, I'm... if you're saying--
John Paul Stevens: They're financing private speech on the 20 topics they want to--
David D. Cole: --If they're... Justice Stevens, if they're funding topics, that's subject matter. That's permissible.
John Paul Stevens: --No, they're funding artists, but artists who just portray these particular 20 topics that they've designated.
David D. Cole: Right. Topics... there's no problem with topics. The Court has held that repeatedly. It's viewpoint discrimination which is impermissible, and it's when you take one side or another on a given subject matter. Under this statute, if you... if an artists has a... presents a nude which is disrespectful or indecent, that viewpoint is disadvantaged. If it's respectful or decent, it's advantaged. That is viewpoint discrimination. And finally, I'd like to say the Court has consistently required--
John Paul Stevens: Well, it's surely viewpoint discrimination if you say, I'll finance a program that says don't... say no to drugs, but I won't finance one that says say yes to drugs. That's viewpoint discrimination.
David D. Cole: --That is, and then that would be the Government speaking and we would know that. But the Government... if you think about private expression in this country, virtually every form of important private expression is funded by the Government. The print press gets mailing privileges. The broadcast press gets licenses. The public broadcasting gets taxpayer dollars. The public--
Stephen G. Breyer: I see where you're going there. Can I give you... just 30 seconds on the subject of the Ninth Circuit opinion. Why is it that the word decency or respect is somehow more vague than the words, artistic excellence?
David D. Cole: --Well, for two reasons, Justice Breyer. First, artistic merit has been applied by a profession so that there is a set of people, the people who are--
Stephen G. Breyer: You mean, people who are professionals know more about what's artistically good than the average person? I would have thought there's a strong view, isn't there, that what is good and beautiful is accessible to everyone?
David D. Cole: --Well, I think there's a strong view, Your Honor, that artistic merit, like academic merit, and like character and fitness--
Stephen G. Breyer: Oh, my good... but if the Government says what we want is that which ordinary people believe is beautiful, doesn't the Government have a right to fund that kind of program?
David D. Cole: --I think what the Government does not have the right to do is to exclude viewpoints which it--
Stephen G. Breyer: We're talking only about... I'm talking about the... sorry. You're--
William H. Rehnquist: Thank you, Mr. Cole. The case is submitted.