I. Introduction

Upon examining the recent headlines covering the current Trump Administration, the arts emerge as a surprising topic of intense presidential interest. President Trump has been vocal in his efforts to eradicate major federal programs such as the National Endowment of the Arts (NEA), National Endowment for the Humanities (NEH), and the Institute of Museum and Library Services (IMLS), a longstanding goal of his since his first presidency.^[1] But Trump’s opposition to federal involvement in the arts is not just talk. Since his second term, Trump has made substantial efforts to scale down federal investment into the arts and politicize the conditions in which funding can occur. As a result, one-third of American museums have lost government grants or contracts as a result of the shrinking budget and staff of federal arts programs.^[2] In 2025, NEA cancelled the “Challenge America” program, where small grants were given to projects in underserved communities.^[3] Through Executive Orders, Trump has imposed caveats on NEA compliance rules that bar grant recipients from promoting “improper ideology,” in their work and forced Smithsonian museums to comply with federal review or risk funding cuts.^[4] He has promised to “restore truth and sanity” to the nation’s monuments and museums.^[5] In response, public opposition has been vocal. In September of 2025, the Rhode Island District Court ruled such NEA compliance caveats as “unlawful” and unable to be implemented.^[6] 

Yet the scale and force of Trump-led federal invention into the arts is not unprecedented. During the New Deal decade of the 1930s, former President Roosevelt’s creation of the Works Project Administration (WPA) led to a massive surge in direct federal support of arts, artistic education, and artwork in the midst of the Great Depression. Under the WPA’s Federal Project Number One, $27 million was approved for the employment of artists, musicians, actors, and writers.^[7] The project established more than 100 community art centers throughout the country, researched and documented American design, and commissioned a significant body of public art without restriction on content, style, or subject matter. Artists were simply encouraged to depict “the American scene” by their own interpretation. At the height of the program, Federal Project Number One employed up to 40,000 writers, musicians, artists and actors and sustained some 10,000 artists and craft workers throughout the Great Depression.^[8] 

The contrast between the two Presidential approaches towards federal support of the arts raise timely questions of what constitutes the correct and appropriate role of the government in funding the arts. Within this paper I will aim to answer two questions: whether federal patronage of the arts is permissible at all, and, if so, how should the government most correctly and constitutionally fund the arts. The paper will utilize a mix of legal case precedent and scholarship as well as existing academic literature around both the tangible and epistemic value of the arts. I will argue that federal funding of the arts is both justified and desirable given its various merits on free speech, public welfare, and economic value. Then, the aforementioned benefits of art will serve as a means of evaluating what framework of allocating funding is most justifiable. Ultimately, the government should aim to fund pieces of art in a manner conducive to promotion of free speech, public access, and support of artists. There should be minimal consideration of ideology, political, or moral fiber of an artwork’s piece when determining funding and more so on the art’s quality and expressive ability. This conclusion will contain explicit mention of relevant Supreme Court cases, most notably responding to the 1989 National Endowment for the Arts v. Finley case, in which the Court ruled that an NEA clause considering “general standards of decency and respect” when awarding grants did not violate the First Amendment.

II. Background

Before beginning, it is useful to define the scope and limitations of this paper. For one, this paper aims to discuss direct subsidization from the federal government to its various subsidiaries, including states, museums, collectives, and individual organizations or persons. It will not cover other forms of government support to the arts, of which the government also has heavily incentivized through the form of tax deductions for donations of art, tax exemptions for museums and cultural organizations, and land grants.^[9] It will also not discuss the government commissioning or displaying of art, including inviting performers to government events, such as inaugurations, or the selection of artwork from a national competition. This paper is specifically on the federal government serving as a funding provider for a broad scope of art meant to be consumed by the general population. When the government commissions or invites artists, it is acting as the consumer instead of the intermediary. Secondly, this paper will not aim to forward an explicit or delineated definition of art. This is for two reasons. First, art is notoriously very difficult to define.^[10] Second, the arguments made within this paper and within the broader academic and legal sphere are not dependent on a narrow nor exact definition of art. The Supreme Court itself has acknowledged its limitations in both judging and defining art in cases dating from 1903 to 2017 and yet has still been able to form artistic jurisprudence.^[11]

However, there are two distinct points about the qualities of art that are useful to this paper and not difficult to prove. One is the perceptual distinction between elite, “capital A” Arts, such as the opera or orchestras, and the “lowercase a” arts of popular or mass culture that exist in the public eye. Although the public recognizes the Arts in “theater, literature, music, visual arts and crafts,” it also tends to “define arts more generally as including fashion, graphic design, pub bands, rock and pop music, child art and amateur drama.”^[12] This reveals that although the definition of art may be vast, public perception includes subjective distinctions between highbrow and lowbrow art that in turn may affect art’s value and consumption. Second, art, no matter how difficultly defined, is inextricably linked to its ability of expression. In Leo Tolstoy’s 1896 treatise What is Art?, art is characterized by three fundamental traits:

(1) That the nature of art is to be understood and recognized in terms of the expression of emotion.

(2) That the excellence of art is to be understood and measured in terms of its infectiousness, i.e. the degree to which emotion is transmitted from the artist to the recipient.

(3) That the value of art is to be understood and judged in terms of the quality of the feelings expressed by the artist and communicated, which, may be then influenced by various circles of social culture and movements.^[13]

Art, then, appeals to intuition and emotion, neither of which can be articulated in absolute terms, but allow its label to be given with little restriction as those who are able to define and label what “art” is range from informal, historical, and institutional sources.^[14]

III. Question 1: Does the government have the right and/or responsibility to fund art?

Unlike typical justification for government subsidies, the production and consumption of art is not seen as a tangible, essential form of public welfare. While providing a job, education, and, on a more basic level, shelter, sustenance, and healthcare are all necessities to maintaining a life and seen as government duties, it is true that the removal of the arts will not result in a direct detriment to our well-being or threaten our well-being. Opponents to federal arts funding commonly use this reasoning to highlight the futility of funding arts when such funds could have gone elsewhere.^[15] Perhaps this line of reasoning is enough to prove that we should not prioritize the funding of arts over those of medicine, education, and poverty alleviation, which is already the case. But this is not enough to prove why all government spending on arts should be eradicated in favor of other programs simply because its benefits are not comparatively as urgent. By this reasoning, why should we allow the government to fund space exploration, sports development, or ballrooms, when its benefits are far less tangible and far more limited to those with the economic means to enjoy them? Clearly, justifications for government spending on the arts can exist despite its comparatively less necessary benefits. So why fund the arts at all, irrespective of its comparative benefits or shortcomings? Below, I list a three pronged rationale on the merits of government spending, organized in order of legal and normative significance.

1. Freedom of Speech

If the existence of art is a form of creative expression, there is an intrinsic link between art and the constitutional right to free speech.^[16] Art then becomes a means of communication across communities that serve manifold purposes — to persuade, unite, divide, emote — that are invaluable rights to each individual that cannot be substituted.^[17] Like other forms of speech, art has intrinsic implications for the artist as a means of self-realization. Because the nature of art is largely based on observation and interpretation, art speech should be considered “a largely risk-free zone” where individuals can engage in free speech to use imagination and creativity to portray and capture the internal human spirit.^[18] In comparison to other forms of protected speech, such as protest, scientific, religious, commercial, and symbolic speech, it can be argued the arts provide an unique medium of expression that augment the strength and power across all forms of protected speech in which individuals should be free to voice their opinions to themselves and towards the public.^[19] Scholars have acknowledged the power of art to promote the avant garde, empower minority populations, and express the ideas of those at the fringes of society given its emphasis on using imaginative and creative processes that eclipse existing social pressures.^[20] If art is a medium of expression, it is within compelling government interests to promote the most equal and accessible forms of expression to its populace; art should be consumable and producible, digestible and diverse, and representative of and challenging to the public eye, as free speech is intended to be.

Similar to how the government is not obligated to subsidize the direct creation or flourishing of any type of speech, this principle does not mean there exists a positive obligation for the government to promote the arts.^[21] And yet, the government has developed a firm commitment to promoting free speech in ways that exceed constitutional obligation. For example, it has supported the creation of public and independent media outlets (including the National Public Radio,Voice of America (VOA), and the now defunded Corporation for Public Broadcasting (CPB) system), promoted and protected public spaces the Supreme Court has acknowledged as ripe for public speech, and allowed for tax deduction for donations to non-profit media and artistic organizations. Furthermore, US Copyright Law and the Fair Use doctrine help protect the freedom of speech and free absorption and discussion of ideas expressed by permitting the broad usage of creative ideas as a means of fostering knowledge and culture while balancing creators’ copyright with public access.^[22] Common across these examples is the government’s capacity to help the distribution of expressive speech, rather than the sheer creation of it. That is because we recognize the difficulty with self expression may lie most within speeches’ ability to be heard and respected by the public, not for the creation itself. Therefore, if the government were to help promote artistic expression, the means should be done through the dissemination and uplifting of artists in their ability to reach the public audience, not in individual subsidies distributed for private indulgence in the arts. Intuitively, this makes sense across the intended value of free speech — our speech has internal and realized meaning through its ability to be heard and in turn, responded to. When art may struggle to reach the public eye, either due to geographical, financial, or ideological constraints, the government is the prime actor to aid the widespread distribution and consumption of art.

The government should support the flourishing of the arts as it supports the flourishing of free speech, giving ample protection to its existence and providing that means of artistic expression are accessible across society. Importantly, the Supreme Court has identified the nexus between certain physical places and flourishing free speech, where areas such as parks, universities, squares, and municipal theatres deemed public by the government face a higher standard for speech restriction given they “have ‘been traditionally open to the public for expressive activity” or have been “expressly dedicated to speech activity.”^[23] Supreme Court precedent points to the protection of art under the First Amendment.^[24] However, the delineation between the protection and promotion of art is often blurry, giving the government ample opportunity to positively uplift art and artistic communities under the sentiment of the First Amendment. Examining scholarship around art and law provides insight into the unique methods arts can promote civic engagement in speech in ways other methods of speech cannot substitute. 

2. Public Welfare

Beyond the connection between the freedom of speech and art, art has also been cited to have numerous consequentialist benefits on a population, many of which can be grouped under the general term of “public welfare.” These benefits range from cultural preservation and formation, public entertainment and enjoyment of aesthetics, to heightened gains in population health, education, and the economy. Art is a potent means of documentation and depiction of a select communities’ cultural richness, improving public education and pride in their collective identity. Importantly, art has been credited as especially vital to maintain the healthy expression of revolutionary and innovative ideas within a democracy.^[25] Art is also a way of building public empathy and imagination, as the aforementioned ability of art to transmit emotion from artist to recipient allows society to gain empathy and awareness of experiences outside of our immediate environs. Famous pieces of art may serve as cultural ambassadors for tourists and the world, in turn attracting tourists and artistic investment into the community.^[26] Beyond abstract benefits of art on our sense of community, culture, moral and aesthetic values, studies have shown art can positively impact education and health.^[27]

This is why seeing public installations of artwork at a town square, commissioned murals, or statues in neighborhood parks do not surprise us. The benefit of art is most realized when it is publicly accessible and integrated within communities, not limited to private or exclusive locations.^[28] This is also in part why the federal and state governments have established departments for Parks and Recreation and devoted swaths of money to conservation, beautification, and renovation efforts.^[29] It is the government elevating art and beauty for its ability to provide public welfare and, in turn, improve our perceived quality of life. While the more speculative benefits of national identity, historical value, and cultural development are hard to quantify, the arts have correlated to real public welfare in terms of our education and health, and will continue to do so.

3. Economic Value and Market Failure Correction

The last primary defense of government funding of the arts lies within uplift the economy and correct market failures. At its very minimum, the arts represent an economic industry that works to employ and generate revenue like any other sector of the economy. The U.S. Bureau of Economic Analysis reports that arts and cultural production contributed more than $1.1 trillion to the nation’s economy in 2023.^[30] According to a 2022 NEA report, investment in public art works to improve the valuation and economic development of a neighborhood, where the arts and culture industry supports over 4.6 million wage and salary workers and many more independent jobs.^[31] Moreover, the federal government has been credited as an arbiter of the arts, where funding to specific projects, localities, and states signal quality and confidence in the arts that spur further state and private investment. Each $1 in National Endowment for the Arts grant funds leverages another $9 from other public and private sources, resulting in $500 million in matching support.^[32]

The need for federal funding for the arts is strengthened by the argument that the arts are a “mixed good,” meaning that while they are privately consumed, benefits are non-rivalrous (not affected by people’s consumption) and publicly received.^[33] Structural disincentives to fund, produce, and consume art mean there is a market failure in which the demand for a public good is realized asymmetrically. As the concentration of wealth within the United States (and the world) continues to shrink, those with the ability to fund and display art shrink too.^[34] When only a select population can afford to attend art museums or displays, it results in cultural ideas, self expression, and artistic enjoyment being sequestered from willing or potential consumers.^[35] Such a concept ties back to the first point on free speech, where highbrow art may be reserved and increasingly limited for public consumption.

4. Common Critiques and Responses

Common critiques of government intervention in the art center around the inability for art funding to produce comparative tangible benefits on a given population in comparison to other programs, and even if produced, benefits are asymmetrically distributed to those of the elite.^[36] As previously mentioned, the withdrawal of NEA support is predicted to hurt rural committees the hardest, as they lack relative state and private funding sources for the arts.^[37] Opponents of federal funding also cite a “crowding out” effect, where the existence of federal support for the arts diminishes private funding due to the perceived lack of need. But this argument is unspecific: we may apply this rationale to any form of government intervention that coexists with private investment, housing development, international aid, and scientific research and realize that the added contribution of the government is an a priori good that oftentimes further stimulates investment in areas that otherwise go overlooked. 

The second critique of federal art funding is that art is a waste of funds because of its inherent elitism. The public simply does not care for the type of arts the government is funding — art that seems abstract and far removed from lived realities on the ground. However, the “waste of federal funds” idea folds back into the perception of art’s intended value on the people. Perhaps the delineation is the perception of NEA funding as going to Capital A arts, which the public may face financial or cultural barriers to access. However, the idea that federal funding does not equate to increased accessibility for the most in need is not an argument to cut funding but rather to do more of it. If we agree that the current access we have to various types of art, capital or lowercase A, is asymmetric and elitist, then such Capital A art should be preserved and made more accessible.

As of 2022, 36% of activities supported by the NEA reach underserved populations, whereas nearly 20% of state arts grants (grants supported by NEA funding) go to rural communities.^[38] We cannot rely on private institutions to align their interests with those of local and state art endeavors. When we leave art to the private sector, that is most likely when urban elites and those with the material means most strongly cling to the arts. Moreover, the government is needed to remedy the arbitrary distinction between “the Arts” and “art”, given public perception interprets arts differently depending on the context it is presented in. The government can act as an intermediary between the high arts and the average individual, where distribution and upliftment of art is done in ways that remove barriers to its enjoyment and broaden existing cultural and aesthetic ideas.

IV. Question 2: How should the Government fund art?

The issue of whether the government is justified in funding art has been sufficiently proven by using three independent metrics: art’s inextricable and unique connection to free speech, public welfare, and economic benefits. All fall within existing domains of government concern and are enough to merit considerable funding interest, especially when considering the majority of the public support funding.^[39] The question now becomes how the government should fund art in ways that are constitutional and maximize art’s intended benefits. Below, I propose four metrics by which the government should consider when choosing to fund artistic organizations, individuals, and projects: funding determined by merit, viewpoint, random, and finally, no funding at all. Oftentimes the nature of art renders the ability to discern merit and an artistic viewpoint very difficult, given much of art is purposefully ambiguous and covertly political.^[40] Still, this paper will discuss the principle of judging federal funding of art assuming feasibility, or at the very least, the publicly stated stance taken by the government when distributing subsidies.

1. By Merit

When examining the history and structure of the NEA, it becomes clear that the government made explicit efforts to prioritize artistic excellence as a judging factor and minimize political or ideological interference. This is reflected in the initial structure of the NEA in 1965, with the appointment of the NEA chairperson as someone who is familiar and esteemed in the art world, as well as the existence of Peer Review Boards populated by respected art critics which would determine grantmaking.^[41] Under the metric of merit, the government would lay out guidelines and an independent review board to determine what receives funding. This is the system the NEA ostensibly relies on today, where grant applicants are selected based on “[a]rtistic excellence and artistic merit.”^[42]

Referring back to Tolstoy, the expressive potency of art directly correlates to its supposed excellence, where it is able to transmit emotion to the viewer via varying levels of infectiousness. Funding art on the basis of excellence also leads to heightened benefits of public welfare and economy, as meritorious art is more likely to succeed in terms of inspiring, moving, and influencing the public rather than art that is neither technically nor aesthetically excellent. Art which is excellent may also attract increased external investment and economic activity from private and the general public, further stimulating the arts economy and protecting against market failure.

Judging art by its artistic merit is a lot easier to do principally rather than practically.^[43] While it may be easier to determine what art projects or pieces required more technical talent or knowledge, it is unclear what delineates between various aesthetics or emotional power among art. In reality, judging art by its artistic merit may always defer to an existing set of personal biases and experiences that make it impossible to judge objectively. While this is a valid concern, the inherent subjectivity over art is not absolute, nor should it permit the increased subjective metrics by which art should be judged. The quality and emotional expression of a piece may differ, however, there are still indicators by which review boards can consider and appreciate that relate more to the expertise or creativity in a piece rather than its implicit message. In other words, we can broadly distinguish between good and bad art, and just because the excellence of art is subjective does not mean we may encourage other forms of subjectivity into metrics that determine funding.

2. By Viewpoint and Content

Arguments for viewpoint and content discrimination of art reside within emphasis of the second value of arts, that of which argues that public welfare benefits of aesthetics, enjoyment, and sociocultural formation that have the ability to be shaped or undermined by the content and viewpoint of the art. Controversy and backlash around publicly funded art typically follows a strain of argumentation that claims public art is meant to beautify, to please, and to soothe, not to provoke and disturb audiences with art deemed improper.^[44] For the government to fund art that may be offensive and unpleasant to the average citizen would undermine the expressed interests or moral viewpoints of the government. In this case, the government would be justified in defunding or removing publicly displayed art if it is deemed unconducive to a nation’s purported cultural and welfare interests, and perhaps proactively preventing allocation of subsidies to certain upsetting art.

The immediate issue raised by this metric is the problematic determination of the correct or ideal viewpoints allowed in funding. Under a funding system that considers the viewpoint of art when grantmaking, the government would express certain viewpoints or content that would not be eligible or deprioritized when distributing funds. For example, the clause of the NEA allows submissions to be evaluated in terms of “general standards of decency and respect,” which inherently evokes a consideration of public standards which strongly nod to cultural ideas on sexuality, religion, and morality.^[45] Further on this point is the argument of unjust use of taxpayer money to fund art that the public disagrees with or may find displeasing. Why should the government fund potentially offensive art that the public believes is a waste of money? The government would consider which art is least likely to offend the public, serving as an informal art critique that does not gauge artistic excellence, but rather, public reaction. Some academics argue the end result of this system would be art of “creeping mediocrity,” which does little to advance public expression or artistic excellence and instead prioritizes lukewarm art least likely to draw backlash.^[46]

3. By Random

Arts funding given out by random would make no attempt to judge art in any form. Given existing restraints of limited federal funding and the seemingly infinite amount of art that can be produced, the system of random distribution of federal funding requires us to be a bit creative. Potential systems could resemble a “bare bones” application form open for any organization, artist, or project that would only contain information of funding needed. The government then could randomly draw names or fund on a first-come-first-served basis and allocate subsidies to a subset of applicants based on the amount of funding requested and type of project without asking questions. Under this system, it is just as likely that a five year old can receive a grant for a state wide fingerpainting project as a nearly retired woodcarving virtuoso would. However principled this system may be in minimizing the amount of politicization, aesthetic bias, or content discrimination, it does not substantially further the second and third merits of public welfare and economy. Random funding would have no insurance of quality, thus diminishing expected returns of both the general public and private marketplace. As for free speech, random funding of art may do good in bringing a diverse array of arts into the public eye, but it could just as well randomly select an extremely plain or homogenous set of art to display, all the while diminishing governmental legitimacy as an arbiter and ambassador of art. The public will be less likely to attend museums and exhibitions funded by random than those carefully chosen by a board of distinguished arts professionals. A random system of funding would undercut artistic legitimacy and reduce buy in from the larger population it intended to engage. The private arts sector would no longer be stimulated by government funding, further exacerbating potential market failures or underinvestment.

4. Not at all

The last remaining option for the federal government is to choose to not fund any art at all. We would welcome the eradication of the NEA and other relevant federal funding sources and leave the domain of art to the private sphere and to the local and state level of government. While this option would ensure the inability of the government to exercise content or viewpoint discrimination on artistic expression, the absence of federal funding would fail to promote the merits of art that the government can make a clear positive contribution in. It would also not extend the right to freedom of speech that art is tied to, and instead would reduce the scope and type of art funded. Furthermore, it would reduce the total amount of funding available to artists, decrease confidence in the health of the arts, and sever symbolic nationwide ties between art and the general public as a public good everyone should be entitled to.

5. Analysis

There is no perfect formula the government can rely on in the realm of federal funding of the arts. However, through the use case precedent and normative judgements, conclusions can be drawn about the ways the federal government ought to fund artistic endeavors and individuals. Namely, if the federal government chooses to fund the arts, it is imperative that such is done by means of merit, rather than viewpoint. Otherwise, the government could opt for two politically extreme alternatives: allocate funding randomly or not at all. The question of which is better becomes less about constitutional theory but more so about practical incentives and impacts each decision would have on the public.

Through the rationale and analysis of the case NEA v. Finley, I aim to answer why the Supreme Court’s response that allowed the NEA to include considerations over decency was insufficient and unwise for its implications on government control over speech. I lay this out in two portions: an overview of the decision itself and then a subsequent analysis on the legal principles, precedent, and implications that follow from the case.

1. The Rationale of NEA v. Finley

Legality rests on a twofold question: what type of forum (fora) is the speech being displayed on, and what type of restriction the government is exercising over such speech? Existing legal doctrine surrounding government restriction of free speech makes constitutional speech restriction proportional to the forum it is being displayed on. The puzzling legal question within federal funding is determining the type of fora government funded art stands on, and whether this fora holds considerable weight in enshrining free speech obligations and protections. Following Perry Educ. Ass’n v. Perry Educators’ Ass’n in 1983, the Supreme Court took a categorical approach to determining the types of fora existed and the government’s subsequent rights to regulate speech within each. First, “traditional public for[a]” were defined as places which by long tradition or by government fiat have been devoted to assembly and debate; second, “‘limited public for[a]’” were identified as property which the State has opened for use by the public as a place for expressive activity; and third, “nonpublic for[a]” were property not dedicated in any significant way to free or open communication.^[47] The government’s power to restrict expression in traditional public fora, as the Perry Court explained, is extremely limited: “Reasonable time, place, and manner regulations are permissible, and a content-based prohibition must be narrowly drawn to effectuate a compelling state interest.”^[48] In a limited public fora, the Court imposes similar restraints on speech: “Although a State is not required to indefinitely retain the open character of the facility, as long as it does so, it is bound by the same standards as apply in a traditional public forum.”^[49]

Thus, the government must use the categorical nature of fora as guidance on the level of speech restriction it can enstate. Historically, artists have found it extremely difficult to obtain a traditional or limited public forum determination in court.^[50] Court rulings rely on the premise of “captive audience” or government “sponsorship” theory, where the prior argues that truly obscene or unreasonable art holds the public “captive” without their consent, where they should not be forced to view such art against their will. The latter is the fear of the perception that the government endorses the message conveyed by the work. However, both of these concerns imply concerning rationales that erode unbiased freedom of expression and prove public art or publicly funded art could be considered a limited or traditional public fora. On the prior implication, the “captive audience” argument falls prey to a majority of public speech expressions and is a generally unstable legal doctrine to base restrictions on.^[51] A captive audience necessitates art that is unavoidable and invades the home, where the public has no choice but to view the piece of art. However, the stronger the captive audience argument, the more likely the art is displayed in places that are widely accessible and constitute traditional places of public fora (a sidewalk, park, town hall); thus, the stronger the legal protections must be against viewpoint discrimination and moral intervention in public. Secondly, the “sponsorship” argument argues that it is reasonable for the government to restrict speech to prevent public interpretation of  its support of certain viewpoints or ideologies. However, this approach has been critiqued as “both theoretically unsound and doctrinally deficient.”^[52] While the government has some interest in distancing itself from unpopular views, fear of endorsement sets the state on a dangerous course where the government may never display daring or contrasting ideologies on its property.

In nonpublic fora, though, content based regulations must be reasonable, or “consistent with the [government’s] legitimate interest in preserv[ing] the property … for the use to which it is lawfully dedicated.”^[53] However, it can be argued that the scope and visibility of the federal government’s actions serve as an implicit form of traditional or limited public fora. Given the government’s large role in promoting and funding the artistic endeavor, it serves as the creator of an abstract public forum that the general public may access and a form of collective ownership and oversight over. This heightens the level of free speech protections owed to government funded art. It is important to note that in the realm of art jurisprudence, the traditionally important distinction between viewpoint discrimination (“an egregious form of content discrimination”) and content discrimination (acceptable across types of fora) is less prominent and blurred.^[54] This is because courts often use any uncertainty about a work’s message or its audience’s ability to “understand” the art to dismiss the suggestion of viewpoint discrimination.^[55] Overall, there is a historical, legal, and normative case for publicly funded art to fall into any of the three categories of public fora. However, the subjectivity between distinctions means the courts should be extra vigilant in affording free speech protections and careful in their ability to restrict art in front of the public eye.

In the landmark 1991 case of NEA v. Finley, four artists who had been denied NEA funding claimed the NEA decency clause was both a violation of their First and Fifth Amendment rights.^[56] NEA v. Finley emerged from a lawsuit of four individual performance artists, Karen Finley, John Fleck, Holly Hughes, and Tim Miller, all of whom had been denied funding by the NEA chairperson in the 1990 application cycle under the newly instated “decency” clause despite having their grants recommended by an advisory panel.^[57] This clause after a period of inflammation in Congress, where the controversial works of Robert Mapplethorpe’s “The Perfect Moment” photography exhibit containing homosexuality, religious, and political themes and Andres Serrano’s infamous Piss Christ (a photo of a crucifix submerged in urine) sparked Congressional demands, led by Republican Representatives Jesse Helms and Dick Armey, to defund the entire NEA.^[58] In response, Congress agreed to amend the provisions of funding from the original clause to maintain “artistic excellence and artistic merit” as criteria but added a requirement to “tak[e] into consideration general standards of decency and respect for the diverse beliefs and values of the American public.”^[59]

The four plaintiffs argued before the California federal district court that their denial of funding was sufficient to state claim under First Amendment, and the decency clause was both unconstitutionally overbroad and vague. In 1992, the district court granted the plaintiffs’ motion for summary judgment invalidating section 954(d) as unconstitutional on its face on the grounds that it was overbroad under the First Amendment and vague under the Fifth Amendment.^[60] In the process, the district court rejected the NEA’s position that it could comply with the statute simply by ensuring that the membership on the review panels reflected the diversity of the nation. The ruling was held in a 1996 split decision in the 9th circuit of appeals court but ultimately was overturned in 1998 when the Supreme Court granted certiorari and reversed the decision, led by Justice O’Connor. Justice Scalia wrote a separate concurrence joined by Justice Thomas. Justice Souter was the only dissent.

In their decision, the Justices considered multiple points: 1) degree of vagueness, 2) view-point neutrality, and 3) unique circumstances of the NEA and grantmaking capacity. The ruling itself claimed the statue was constitutional, given its ability to “take into consideration” but not decide grants purely based on conceptions of decency.^[61] They claimed that the 20 U.S.C. § 954(d)(1) merely adds “considerations” or factors to the grant-making process; it does not imply that all grants should be denied to applications involving “indecent” or “disrespectful” art works.^[62] 20 U.S.C. § 954 does not state how much weight the Advisory Commission, Council or Chairperson should give to this factor, only that the factor be taken into consideration.^[63] The Court found that the denial of selective, application-based funds meant the NEA was not prohibiting the artist from pursuing their work, rather the denial was only in reference to a grant that, due to financial scarcity, could not be given to everyone. Furthermore, the court accepted that despite the fact that the decency criteria invites a subjective determination from the NEA, the intrinsic nature of arts grants meant that the element of subjectivity already existed within the idea of “excellence” itself: “Any content-based considerations that may be taken into account in the grantmaking process are a consequence of the nature of arts funding.”^[64] Moreover, Justice Scalia’s concurring opinion emphasized the difference between federal subsidies and regulation, where “[i]n the former context, vagueness produces an abridgment of lawful speech; in the latter it produces, at worst, a waste of money.”^[65] To Justice Scalia, while the NEA was engaging in content and viewpoint discrimination, it was fully constitutional given the means in which it was doing so.

 While the court used this to nullify the strength and importance of the decency clause, they fail to acknowledge the potential chilling effect that such a clause will have. As they themselves admit, the “Indeed, one could hardly anticipate how ‘decency’ or ‘respect’ would bear on grant applications in categories such as funding for symphony orchestras.”^[66] While this statement was intended to prove how the decency clause had little impact on the conduct and behavior of artists, the Justices ignore the ramifications of self-censorship artists may take to minimize chances of denial of artwork. This means that when submitting grant applications, artists will take caution and self-censor their artwork to the extent that they believe they will not be denied based on the abstract concept of “decency”. Justice Souter vocalizes this concern in his dissent, where he writes that just because it is a consideration of decency, not a ban, does not make it constitutional. This is because the prominence and expressed intent in adding in the clause acts as an explicit priority over other factors that could also be “considered”. The statute is viewpoint discrimination because it disfavors art that does not reflect the ideology, opinion, or convictions of the majority of Americans. Justice Souter draws the example of considering other factors in lieu of “decency”. Consider Justice Souter’s example, “if the statute required a panel to apply criteria ‘taking into consideration the centrality of Christianity to the American cultural experience,’ or ‘taking into consideration whether the artist is a communist,’ or ‘taking into consideration the political message conveyed by the art,’ or even ‘taking into consideration the superiority of the white race’?”^[67]

Lastly, it is important to acknowledge that the notion of decency is especially weighty in the world of arts. Justice Souter explains by quoting a Supreme Court case ruled two years prior: “‘In artistic … settings, indecency may have strong communicative content, protesting conventional norms or giving an edge to a work by conveying otherwise inexpressible emotions … Indecency often is inseparable from the ideas and viewpoints conveyed, or separable only with loss of truth or expressive power.’”^[68] To Justice Souter, the idea of decency in the context of arts funding is counterproductive to the very purpose of uplifting artistic excellence. Furthermore, it could be argued that because many artists are financially vulnerable,^[69] the leverage of potential grants or funding could hold great power over the type of work produced.

2. Analysis of the Rationale

Relevant to this discussion is the distinction of obscenity, which is a category of speech that is unprotected by the First Amendment. Obscenity is defined threefold by the Supreme Court as material that, taken as a whole, appeals to the average person’s prurient interest, depicts or describes sexual conduct in a patently offensive way, and lacks serious literary, artistic, political, or scientific value.^[70] Obscene content has been described in previous Supreme Court rulings as “utterly without redeeming social importance”.

Indecency does not meet the narrow standard of obscenity. Instead, it proposes a weaker framework of determining offensive content that historically has been defined by government authority but does not always necessitate lessened legal protections and has instead been protected under the First Amendment.^[71]  For example, indecency in public broadcasting  described by the Federal Communications Commission as content that “portrays sexual or excretory organs or activities in a way that is patently offensive but does not meet the three-prong test for obscenity.”^[72]

In the landmark 1997 Supreme Court ruling in Reno v. American Civil Liberties Union, all justices of the court struck down provisions of the Communications Decency Act (CDA) aimed at protecting minors by criminalizing “indecency and obscenity” on the Internet.^[73] In their ruling, the Court explained that the First Amendment distinguishes between “indecent” and “obscene” sexual expressions, where indecency was overbroad and vague in contrast to obscenity.^[74]

Parallels can be drawn between the 1991Supreme Court case Rust v. Sullivan and NEA v. Finley, where in Rust the Justices ruled in a 5-4 decision that administrative regulation prohibiting recipients of family planning funds appropriated through Title X of the Public Health Service Act from providing abortion counsel referral and advocating abortion were not a violation of the substantive due process clause of the Fifth Amendment and of the First Amendment.^[75] The Court ruled that conditional funding was not viewpoint discrimination on behalf of the Government, rather them merely choosing to fund one activity to the exclusion of the other, where the government can “selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternate program which seeks to deal with the problem in another way.”^[76] In this case, the regulation constituted a nonsubsidy, not a penalty, where the Title X regulations do not force a grantee to relinquish speech and can still “engage in abortion advocacy … through programs that are separate and independent from the project that receives Title X funds.”^[77] In the dissenting opinion, Justice Blackmun argued that the strand of argumentation from previous cases in Speiser-Perry-Arkansas Writer’s Project, where strict scrutiny should be applied to any conditional funding obligation, should have decided Rust. Blackmun cautioned against the majority’s distinction between restrictions within a project and restrictions reaching activities in the grantee’s nonprivate sphere “could be read to tolerate any governmental restriction of employee’s speech so long as that restriction is limited to the funded work-place.”^[78] Such a distinction continued in NEA v. Finley, where the court ruled that the decency clause was not a restriction, but simply a non-subsidy. Furthermore, the court argued the specific wording of the clause, or “consideration of general standards”, meant the threat to discrimination of viewpoints was as probable and ambiguous as the general standards of excellency that the NEA otherwise would have depended on.

Academic critique of the NEA ruling centered around two main claims: the Court’s ambiguity and refusal in specifying art’s correlation to free speech as a medium, category of public forum, and type of speech itself, and the court’s inconsistency on clarifying what constitutes constitutional conditional federal funding within a public forum. Notable to the definition of obscenity given in Miller v. California is the separate and specific inclusion of serious artistic value that obscene conduct must lack. In Pope v. Illinois (1987), the Court clarified that the nature of determining artistic value may be intrinsically subjective, and thus have explicitly clarified that “the first and second prongs of the Miller test—appeal to average person’s prurient interest and patent offensiveness—are issues of fact for the jury to determine applying contemporary community standards.”^[79] However, as for the third prong, “[t]he proper inquiry is not whether an ordinary member of any given community would find serious literary, artistic, political, or scientific value in allegedly obscene material, but whether a reasonable person would find such value in the material, taken as a whole.”^[80] When examining the structure, goal, and funding process of the NEA, it becomes clear that such projects by nature, most contain serious artistic value, and thus even if indecent, should not qualify as obscene content deserving of censorship or restriction.

3. Weighing constitutional claims to free speech

To protect free expression of speech, it is worth and oftentimes necessary to allow speech that may provoke, stir, and disturb the public.^[81] Art should both promote free speech and cultural preservation/formation. But in situations where the art itself is viewed offensive or indecent by a population’s cultural standards, the government should prioritize artistic freedom above considerations of potentially unpopular or indecent art. While legal precedent may rule conservatively against the public forum protections afforded to art and public artistic speech, legal and normative analysis show that inserting moral or decency considerations into the governmental rationale of funding art erodes the primary purpose of its funding to begin with. We must trust the public to stomach and appreciate a diversity of aesthetics, interpretations, and value of art that may challenge their own instincts and beliefs. It is within the governments’ authority and power to protect and push art that the public may otherwise have been unexposed to.

V. Conclusion

All things considered, total federal funding to the arts every year in the United States is only around $200 million, or 0.003% of the total US budget.^[82] While this figure may justify reactions of apathy, the NEA’s position as the nation’s largest funder of art warrants careful government and public consideration of how these funds are allocated. History has proven that a little can go a long way with art: Public outrage for a single work of art speaks to the invaluable nature of art to compel us, keep our attention, and spark debate. In this respect, it is imperative that the government assist the proliferation and support of the arts across the nation on federal, state, and local levels. To do this, the government must maintain its explicit goal of promoting art for the sake of art. As discussed above, the arts’ deeply rooted position in free speech renders federal funding something that must principally avoid viewpoint or content consideration. The nature of art makes it difficult to judge or delineate the average, rational person. Instead, art may give us various avenues to express individuality that exceeds rationality or the mainstream. It is in the government’s best and constitutional interests to uphold and value the funding of art without the shaky and exploitable considerations of indecency.

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^[1] President Trump Proposes Elimination of IMLS, NEH, NEA, AM. ALLIANCE OF MUSEUMS (2017), https://www.aam-us.org/2017/05/24/president-trump-proposes-elimination-of-imls-neh-nea/; Elimination of these agencies originated in Trump’s 2018 budget proposals, all of which were rejected by a bipartisan Congress. IMLS is the primary source of federal support for the nation’s libraries, museums, and archives; NEH is the largest humanities funder in the United States; and NEA is the largest arts funder in the country. IMLS was established in 1996, the latter two both in 1965.

^[2] National Snapshot of United States Museums, AM. ALLIANCE OF MUSEUMS (2025), https://www.aam-us.org/wp-content/uploads/2025/11/AAMSnapshotReport25.pdf, 3.

^[3] Elizabeth Blair, National Endowment for the Humanities Grants Funding Terminated,NPR (April 10, 2025), https://www.npr.org/2025/04/10/nx-s1-5352821/national-endowment-humanities-grants-funding-terminated.

^[4] Exec. Order No. 14253, 90 C.F.R. 14563 (2025), https://www.whitehouse.gov/presidential-actions/2025/03/restoring-truth-and-sanity-to-american-history/; Updates on National Endowment for the Arts FY 2026 Grant Opportunities, NATIONAL ENDOWMENT FOR THE ARTS, (February 6, 2025) https://www.arts.gov/news/press-releases/2025/updates-national-endowment-arts-fy-2026-grant-opportunities.

^[5] 90 C.F.R. 14563.

^[6] Rhode Island Latino Arts v. Nat’l Endowment for the Arts, 800 F. Supp. 3d 351, 373 (D.R.I. 2025).

^[7] Works Progress Administration (WPA), HISTORY (last modified May 28, 2025), https://www.history.com/articles/works-progress-administration.

^[8] Deborah Mutnick, Toward a Twenty-First-Century Federal Writers’ Project, 77 COLLEGE ENGLISH 124, 124–145 (2014); Two beloved American novels of the 20th century, Zora Neale Hurston’s Their Eyes Were Watching God (1937) and John Steinbeck’s The Grapes of Wrath (1939), were written by authors employed by the Federal Writers’ Project under Federal Project Number One.

^[9] Noël Carroll, Can Government Funding of the Arts Be Justified Theoretically?, 21 JOURNAL OF AESTHETIC EDUCATION 21, 22 (1987); Much of government art support prior to 1965 and the formation of the NEA came from such indirect means.

^[10] Arnold Berleant, A Note on the Problem on Defining ‘Art’, 25 PHILOSOPHY AND PHENOMENOLOGICAL RESEARCH 239, 239–41 (1964); Catharine Abell, Art: What It Is and Why It Matters, 85 PHILOSOPHY AND PHENOMENOLOGICAL RESEARCH 671, 671–91 (2012).

^[11] Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251 (1903) (“It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits. At the one extreme some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke.”); Star Athletica, LLC. v. Varsity Brands, Inc., 137 S. Ct. 1002 (2017).

^[12] Jennifer Craik, Dilemmas in Policy Support for the Arts and Cultural Sector, 64 AUSTRALIAN JOURNAL OF PUBLIC ADMINISTRATION 6, (2005).

^[13] LEO TOLSTOY, WHAT IS ART? (1930), 171-173, 275-277; C.J.F. Parkin, Tolstoy’s ‘What Is Art?’, NEW ZEALAND SLAVONIC JOURNAL 54, 54–67 (1969); Stephen Davies, Defining Art and Artworlds, 73 THE JOURNAL OF AESTHETICS AND ART CRITICISM 375, 375–84 (2015).

^[14] Davies, supra at 382.

^[15]  Ten Good Reasons to Eliminate Funding for the National Endowment for the Arts, HERITAGE FOUNDATION,  https://www.heritage.org/report/ten-good-reasons-eliminate-funding-the-national-endowment-orthe-arts, (Apr. 29, 1997).

^[16] See, e.g., Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 569 (1995) (painting, music, and poetry are “unquestionably shielded” by First Amendment); Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989) (“Music, as a form of expression and communication, is protected under the First Amendment.”); Burstyn v. Wilson, 343 U.S. 495, 501 (1952) (“[M]otion pictures are a significant medium for the communication of ideas. They may affect public attitudes and behavior in a variety of ways, ranging from direct espousal of a political or social doctrine to the subtle shaping of thought which characterizes all artistic expression.”)

^[17] Beyond the traditional protections of free speech, we should consider Art speech as a unique forum of expression that should be treated as a core speech that deserves heavy protection. See Edward Eberle, Art as Speech, 11 U. OF PENN. JOURNAL OF LAW AND SOCIAL CHANGE 1, at 6 (2007) (“We can identify at least three basic reasons why art is special and, accordingly, entitled to protection as free speech. First, art is special because it partakes of the creative process central and unique to human existence. Second, art provides an avenue to dimensions of human life less accessible by ordinary rational or cognitive processes. Art is a portal to nonrational, non-cognitive, non-discursive dimensions to human life, offering a fuller conception of the human person. Third, art functions as a private sphere of freedom not subject or susceptible, on the whole, to the normal rules of society. Within this private sphere of freedom, a person can contemplate and muse over elements of the human condition free from the pressures or sanctions of normal social forces. Each of these justifications suggests that art speech warrants protection.”)

^[18] Id. at 28.

^[19] NAEA Position Statement on Freedom of Speech Through Visual Expression, NATIONAL ART EDUCATION ASSOCIATION, https://www.arteducators.org/resources/platform-and-position-statements/naea-position-statements-relationships/518-naea-position-statement-on-freedom-of-speech-through-visual-expression/ (2014).

^[20] Eberle, supra at 6.

^[21] See Rust v. Sullivan, 500 U.S. 173 (1991).

^[22] Copyright and the First Amendment, LIBRARY OF CONGRESS, https://constitution.congress.gov/browse/essay/artI-S8-C8-3-3/ALDE_00013065/.

^[23] United States v. Kokinda, 497 U.S. 720, 726 (1990).

^[24] Eberle, supra at 1; See, e.g., Schad v. Mount Ephraim, 452 U.S. 61, 65 (1981) (“Entertainment, as well as political and ideological speech, is protected; motion pictures, programs broadcast by radio and television, and live entertainment, such as musical and dramatic works, fall within the First Amendment’s guarantee.”).

^[25] Among famous declarations towards the essentiality of art include Presidents Eisenhower at the MoMA 25th Anniversary Opening Ceremony in 1954: “[f]or our Republic to stay free those among use with the rare gift of artistry must be able freely to use their talent…. .” and Kennedy’s remarks at Amherst College in 1963: “I see little of more importance to the future of our country and our civilization than full recognition of the place of the artist. If art is to nourish the roots of our culture, society must set the artist free to follow his vision wherever it takes him.” The Opening Ceremonies of the 25th Anniversary of the Museum of Modern Art, MOMA (October 19, 1954), https://www.moma.org/momaorg/shared/pdfs/docs/press_archives/1874/releases/MOMA_1954_0095_89.pdf; President John F. Kennedy: Remarks at Amherst College, NATIONAL ENDOWMENT FOR THE ARTS (October 26, 1963), https://www.arts.gov/about/kennedy-transcript.

^[26]Akhrorova Nargiza and Tokhirova Hadicha, THE IMPORTANCE OF ART IN TOURISM INDUSTRY. (May 19, 2024) https://doi.org/10.5281/zenodo.11217867.

^[27] See Web Extra: Lin-Manuel Miranda on the Importance of Federal Funding for the Arts, CBS NEWS (April 23, 2017), https://www.cbsnews.com/news/web-extra-lin-manuel-miranda-on-the-importance-of-federal-funding-for-the-arts/; Creative Forces: NEA Military Healing Arts Network, NATIONAL ENDOWMENT FOR THE ARTS, https://www.arts.gov/initiatives/creative-forces; Evan L. Ruffa, Arts Education: Data-Driven Proof for Artful Impact, iPaintMyMind (February 5, 2024), https://ipaintmymind.org/blog/arts-education-proof-impact/.

^[28] Americans for the Arts, Public Art Network Council Green Paper: Why Public Art Matters (Washington, DC: Americans for the Arts, n.d.).  https://www.americansforthearts.org/sites/default/files/PublicArtNetwork_GreenPaper.pdf.

^[29] Recreation Funding in America: Current Results and Future Insights, OUTDOOR RECREATION ROUNDTABLE, https://recreationroundtable.org/wp-content/uploads/2024/06/ORR031_RecFundingRpt_Rd2-compressed.pdf (2024).

^[30] Arts and Cultural Production Satellite Account, U.S. and States, 2023, BUREAU OF ECONOMIC ANALYSIS, https://www.bea.gov/sites/default/files/2025-03/acpsa0425.pdf (2023), pg 1.

^[31] Arts Investment Fact Sheet: Connecticut, FY 2019, CONNECTICUT OFFICE OF THE ARTS, https://portal.ct.gov/decdartsportal/-/media/decd/arts-office-v2/creative-economy/connecticut-2019-nasaa-sheet.pdf (2019).

^[32] Id.

^[33] David Throsby, The Production and Consumption of the Arts: A View of Cultural Economics, 32 JOURNAL OF ECONOMIC LITERATURE 1, 1–29 (1994).

^[34] Democracy Without Borders, “Extreme Wealth Inequality Is Threatening Democracy, Reports Warn,” (2026). https://www.democracywithoutborders.org/40592/extreme-wealth-inequality-is-threatening-democracy-reports-warn/.; Christian Kelly, “New Data Shows Wealth Inequality Reaching Unprecedented Levels,” Silicon Canals, (2026). https://siliconcanals.com/r-tns-new-data-shows-wealth-inequality-reaching-unprecedented-levels/.

^[35] Daniel Mach, The Bold and the Beautiful: Art, Public Spaces, and the First Amendment, 72 N.Y.U. L. REV. 383, 391 (1997).

^[36] Ten Good Reasons to Eliminate Funding for the National Endowment for the Arts, HERITAGE FOUNDATION; On the other hand, Trump has also deepened his involvement within the federal sphere of support for the arts. He has added his name to the exterior and title of the former Kennedy Center, originally a national memorial and bipartisan organization for performance arts. He ousted the original Kennedy Board of Directors in lieu of a self-appointee.

^[37] Blair Murphy, Why Eliminating the National Endowment for the Arts Would Hurt Rural Americans the Most, HYPERALLERGIC (May 31, 2017), https://hyperallergic.com/why-eliminating-the-national-endowment-for-the-arts-would-hurt-rural-americans-the-most/.

^[38] “National Endowment for the Arts Arts Investment Fact Sheet” (January 2023), National Endowment for the Arts, https://nasaa-arts.org/wp-content/uploads/2017/04/2023NEAFactSheet-1.pdf.

^[39] Grant Review Process, NATIONAL ENDOWMENT FOR THE ARTS, https://www.arts.gov/grants/grant-review-process.

^[40] Mach, supra at 394.

^[41] See NATIONAL ENDOWMENT FOR THE ARTS, PANEL STUDY REPORT 6-7 (1987) [herein-

after PANEL STUDY REPORT] (detailing the origin of the panel system). The utilization of panels was foreseen in the enabling legislation. See 20 U.S.C. § 959(a)(4) (1988). https://www.arts.gov/sites/default/files/NEA-Annual-Report-1987.pdf.

^[42] Grant Review Process, NATIONAL ENDOWMENT FOR THE ARTS, https://www.arts.gov/grants/grant-review-process.

^[43] Francis Sparshott, Excellence in the Arts, 20 JOURNAL OF AESTHETIC EDUCATION 137, 137–40.

^[44] Mach, supra at 424.

^[45] Olivia Fish, The Controversies of (Immersion) Piss Christ and The Perfect Moment: An Argument for State Funding of the Arts as an Extension of Free Speech Protections (2023) (Senior Thesis, Claremont McKenna College), pg 14.

^[46] Russell Lynes, The Case against Government Aid to the Arts, NEW YORK TIMES MAGAZINE (March 25, 1962), https://www.nytimes.com/1962/03/25/archives/the-case-against-government-aid-to-the-arts-against-government-aid.html. (“The less the arts have to do with our political processes, I believe, the healthier they will be, the more respected, the more important to Americans, and the more productive.”)

^[47] Perry Educ. Ass’n v. Perry Educators’ Ass’n, 460 U.S. 37, 46, 47, 49 (1983);

^[48] Id. at 46. See also International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992); Ward, 491 U.S. (upholding a regulation limiting loudness of band performing in Central Park).

^[49] Perry Educ. Ass’n, 460 U.S. at 46. Speech in limited public fora can be limited to certain classes of speakers; see, e.g., Widmar v. Vincent, 454 U.S. 263, 267 (1981) (assuming that availability of state university facilities may be limited to registered student groups); Madison Sch. Dist. v. Wisconsin Employment Relations Comm’n, 429 U.S. 167, 175 n.8. (1976) (noting that speech at school board meetings may be limited to school matters).

^[50] Mach, supra at 1. In Piarowski v. Illinois Community College 759 F.2d 625, 627 (7th Cir. 1995) finding a college art gallery to be a nonpublic forum, permitted the removal of several sexually charged stained-glass windows. Furthermore, a district court in Claudio v. United States 836 F. Supp. 1219, 1223–25 (E.D.N.C. 1993) determined the lobby of a federal courthouse to be a nonpublic forum, upholding the government’s removal of a painting entitled “Sex, Laws & Coathangers”.

^[51] Mach, supra at 410.

^[52] Id. at 411.

^[53] Id. at 401 (internal quotation omitted).

^[54] Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829, 831 (1995) (that the distinction between viewpoint discrimination and content discrimination “is not a precise one”). For all forms of expression, the line between content and viewpoint is often blurred.

^[55] Mach, supra at 413.

^[56] Finley v. National Endowment for the Arts, 795 F. Supp. 1457 (C.D. Cal. 1992)

^[57] Id. at 1463–1468.

^[58] Cynthia Koch, The Contest for American Culture, Funding Challenges and Successes in Arts, 1998 Education, n.d. https://doi.org/10.4018/978-1-5225-2581-3.CH001

^[59] National Foundation on the Arts and the Humanities Act of 1965, Pub. L. No. 89-209, § 5(a), 79 Stat. 845, 846 (codified as amended at 20 U.S.C. § 954(a) (1994)).

^[60] Finley v. National Endowment for the Arts, 795 F. Supp. 1457 at (C.D. Cal. 1992)

^[61] NEA v. Finley, 524 U.S. 569, 608 (1998).

^[62] 20 U.S.C. § 954(d) (1995) (“[I]n establishing such regulations and procedures, the Chairperson shall ensure that – artistic excellence and artistic merit are the criteria by which applications are judged, taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public …”).

^[63] Id. at 585.

^[64] Id. at 585-6.

^[65] Finley, 524 U.S. at 599 (Scalia, J., concurring).

^[66] Finley, 524 U.S. at 583.

^[67] Finley, 524 U.S. 569, 608, 118 S. Ct. 2168, 2189–90 (1998) (Souter, J., dissenting).

^[68] Finley, 524 U.S. at 606 (Souter, J. dissenting) (quoting Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U. S. 727, 805 (1996) (Kennedy, J., concurring)).

^[69] HANS ABBING, WHY ARE ARTISTS POOR? THE EXCEPTIONAL ECONOMY OF THE ARTS (2008), at 42.

^[70] Miller v. California, 413 U.S. 15 (1973), at15.

^[71] The Federal Communication Commission’s definition of broadcast indecency is “language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities.” Federal Communications Commission, In re Applications of Certain Licensees for Authorization to Provide Enhanced 911 Services (E911), FCC 90-264, https://docs.fcc.gov/public/attachments/FCC-90-264A1.pdf (1990) at 5300.

^[72] Obscene, Indecent and Profane Broadcasts, FEDERAL COMMUNICATIONS COMMISSION, https://www.fcc.gov/consumers/guides/obscene-indecent-and-profane-broadcasts.

^[73] Reno v. American Civil Liberties Union, 521 U.S. 844 (1997).

^[74] Id. at 117.

^[75] Rust, 500 U.S. at 205.

^[76] Id at 193.

^[77] Id. at 196.

^[78] Id. at 213 (Blackmun, J., dissenting).

^[79] 481 U.S. 497, 500, 504-505.

^[80] Id. at 500-1.

^[81] See Boos v. Barry, 485 U.S. 312, 322 (1988) (“As a general matter, we have indicated that in public debate our own citizens must tolerate insulting, and even outrageous, speech in order to provide adequate breathing space to the freedoms protected by the First Amendment.” (internal quotation marks omitted)).

^[82] The Federal Budget in Fiscal Year 2023, CONGRESSIONAL BUDGET OFFICE (2024), https://www.cbo.gov/publication/59727; Government Funding for the Arts 2001–2023, AMERICANS FOR THE ARTS (2023), https://www.americansforthearts.org/sites/default/files/documents/2023/Government%20Funding%20for%20the%20Arts%202001-2023.pdf .