Finley

ORDER

A majority of the panel has voted to deny the petition for rehearing and to reject the suggestion for rehearing en banc.

The full court has been advised of the suggestion for rehearing en banc. An active judge requested a vote on whether to rehear *1016 the matter en banc. The matter faded to receive a majority of the votes of the nonrecnsed active judges in favor of en banc consideration. Fed.R.App.P. 35.

The petition for rehearing is denied and the suggestion for rehearing en banc is rejected.

joined by KOZINSKI and KLEINFELD, Circuit Judges, dissenting from order rejecting suggestion for rehearing en banc:

This case should be reheard en banc because our three judge panel split decision conflicts with two other circuits, is wrong on the merits, and turns the First Amendment on its head.

The plaintiffs are artists, who, along with 5,164 others, applied for a Visual Arts Fellowship from the National Endowment for the Arts (“NEA”) in 1994. The plaintiffs weren’t awarded fellowships (although 88 others were) so they sued, claiming that their First Amendment rights had been violated because Congress required the NEA, in addition to judging applications by “artistic excellence” and “artistic merit,” to “tak[e] into consideration general standards of decency and respect for the diverse beliefs and values of the American public.” 20 U.S.C. § 954 (d). In ruling that the “decency and respect” provision offends the First Amendment, our divided court commits three grave errors.

First, the panel majority gave the NEA statute an implausible construction. According to the panel, rather than merely take “decency and respect” into consideration, as the statute says, the NEA must use…