Finley

dissenting:

I respectfully dissent.

First Amendment law has taken some odd turns lately. We now live in a legal context prohibiting display of a cross or menorah on government property. American Jewish Congress v. City of Beverly Hills, 90 F.3d 379 (9th Cir.1996), Separation of Church and State Committee v. City of Eugene, 93 F.3d 617 (9th Cir.1996). But if a cross is immersed in urine, a government grant cannot be withheld on the ground that the art would offend general standards of decency and respect for the religious beliefs of most Americans. The government, under today’s decision, cannot even consider “general standards of decency and respect for the diverse beliefs and values of the American public” when it gives artists grants. Yet we penalize private employers for slowness in firing employees who do not show decency and respect for other employees. See Steiner v. Showboat Operating Company, 25 F.3d 1459 (9th Cir.1994). This self-contradictory silliness is not built into the Bill of Rights. The First Amendment does not prohibit the free exercise of common sense.

Artists, and for that matter, non-artists, are constitutionally entitled to express themselves indecently and…

Opinion by Judge BROWNING; Dissent by Judge KLEINFELD.

Plaintiffs Karen Finley, John Fleck, Holly Hughes, and Tim Miller were refused fellowships under the defendant National Endowment for the Arts’ (“NEA”) solo performance artists program. They filed suit, alleging, among other things, that a provision of the NEA’s governing statute .identifying the standard for approval of funding applications violated the Fifth and First Amendments because it was impermissibly vague and imposed content-based restrictions on protected speech. The district court agreed, granted summary judgment to the plaintiffs, and certified its ruling for interlocutory appeal. Finley v. National Endowment for the Arts, 795 F.Supp. 1457 (C.D.Cal.1992). We affirm, essentially for the reasons stated by the district court.

Congress gave the NEA authority “to establish and carry out a program of ... grants-in-aid ... to ... individuals of exceptional talent engaged in or concerned with the arts.” 20 U.S.C. § 954 (c). The Chairperson of the NEA has ultimate authority to approve or disapprove grants. 20 U.S.C. §§ 954 (c), 955(f). Before making a decision on a particular grant application, however, the Chairperson…