NEA Head John Frohnmayer: Caught in the Crossfire?
His top lawyer slanders a Christian conservative.

New York City Tribune, Friday, November 2, 1990

PHILADELPHIA--Those who have been following the controversy over the National Endowment for the Arts may have been scratching their heads over just where NEA Chairman John Frohnmayer stands on the issue. On one hand, he has denied grants to several controversial artists, apparently because of the sexually explicit content of their work. He also required grant applicants to sign a document acknowledging that they were not to use their money to produce obscene artworks. But at the same time, he has opposed any legislative restrictions on NEA funding.

It would appear that Frohnmayer is simply trying to protect his own bureaucratic turf. Congressional restrictions, whether or not Frohnmayer agrees with them in substance, limit his power, so he opposes them. But if he approves a grant for, say, Karen Finley, the performance artist who slathers her nearly naked body in chocolate, the argument for legislative intervention becomes that much stronger. This may have been why he denied the grants of Finley and three other controversial performance artists last June.

The NEA chairman has managed to antagonize just about everyone on both sides of the issue. Lesbian performance artist Holly Hughes, one of the four whose grants were denied, has called Frohnmayer "the Neville Chamberlain of arts funding, [who is] treating us like Poland in the '30s." Conservative NEA critics might echo the analogy, differing only on who is being appeased and who is being treated like Poland.

Rep. Dana Rohrabacher (R-Calif.) is the House's most vocal critic of the NEA. In a September interview, he told the New York City Tribune that Frohnmayer lacked "the finesse necessary to avert disaster." But it seems that the NEA chairman has finessed the situation quite nicely. The efforts of Rohrabacher and Sen. Jesse Helms to restrict the NEA failed, and Congress approved an ineffectual measure which requires only that grant recipients who are subsequently convicted of obscenity or child pornography return the portion of their grants spent on those projects. Meanwhile, by denying some grants, Frohnmayer established that he is not merely a lapdog for the arts community.

Frohnmayer's bureaucratic power thus seems relatively secure. The only remaining challenge is a series of lawsuits--most notably, one filed by the four de-funded performance artists, claiming that the denial of their grant applications violates their constitutional right to free speech. All of this, however, begs the question of just where the NEA itself stands on the underlying issue of what sort of standards should be applied to government-funded art.

It was in hope of answering this question that I attended a lecture last week given by Julianne Ross Davis, general counsel of the NEA, at the University of Pennsylvania Law School. Davis practiced law with Frohnmayer in Portland, Ore.--"I knew the boss," she told a student who asked how she got her current job. A specialist in commercial litigation, Davis came to the NEA with no background in the arts.

Davis indicated that the NEA stands foursquare on the side of the avant-garde arts community. About the anti-obscenity restriction that was in effect during fiscal 1990, she said: "We don't like it, we don't want it, we didn't ask for it, we think it's unnecessary, and we also think it's unconstitutional." She noted the NEA's furious efforts to lobby Congress against any restrictions on funding.

After Congress imposed anti-obscenity restrictions on NEA grant receipients--restrictions that applied only in fiscal year 1990, which ended Oct. 1--the NEA instituted its requirement that grant recipients sign a document acknowledging that they were aware of the restriction.

This "pledge," as it was called, elicited outrage from many artists, but Davis said its purpose was "to assure the arts community" that the NEA would not deny grants to works unless they violated Miller v. California--even if Congress intended to bar funding of a broader range of works.

The Miller case established that a work is not obscene unless it lacks "artistic merit." Said Davis: "I tell [grant applicants], 'The only determination that you have to make is that if you intend to create something that you feel has serious artistic merit, you've fulfilled your obligation.' " The "pledge" has since been eliminated, since the anti-obscenity legislation lapsed on Oct. 1.

After Davis' lecture, I asked her about Frohnmayer's denial of grants to the four performance artists last June. She said she was simply following the recommendations of the National Council on the Arts that the grants be denied, though they had been approved by the peer review panel.

I found it odd that the NEA was opposing the artists in court. "From what you've said up to this point," I said, "it sounds like you'd be on the side of the artists."

"We are on the side of the artists," she replied. "But we have a process. . . . Our position is that the procedure was followed and the chairman can either accept or reject the recommendations of the panel or the recommendations of the council."

She said the rejection of the grants was not based on the content of the artists' works. "I think if you look at the other performers who received grants within this group, you have to agree with that. There are allegations by two of the rejected grantees that because their work deals with homosexual or lesbian themes, that's why their grants were denied. But there were at least two other, or three other, grantees or applicants in the pool that were given grants whose work explicitly deals with lesbianism or homosexual life and sexual issues."

So why were the grants denied? I asked. "It's in litigation, so I can't comment on things that haven't been released to the plaintiffs' lawyers yet, so I can't tell you exactly. I can tell you very adamantly and very confidently that these grants were not denied on the basis of content."

So were they denied because they lacked artistic merit? Well, she said, the peer panel bases its recommendations on three criteria, while the National Council bases its recommendations on a separate list of nine criteria outlined in the NEA's enabling legislation, and these two sets of criteria were simply at cross-purposes in this particular case. A hopelessly legalistic answer, but what can one expect from an arts agency headed by a lawyer?

At the time the grants were denied, Frohnmayer was reported to have based his decision on "political realities." He denied having made this comment, and Davis reiterated the claim that this was not a political decision. But it's difficult to imagine what else it could be, given that all the grant applications that have been denied were from artists whose work is controversial.

Still, Davis made it clear that, for the most part, the NEA is on the side of the controversial artists. Noting that the House vote on the bill to scrap content restrictions was "369-42" (actually 382-42), she said, "We saw [this] as a big vote of confidence that once people settled down and decided to look very strongly at the issue that they decided to pay attention to the Constitution." She didn't point out that Rohrabacher's amendment, which would have subjected the NEA to a host of restrictions stronger than any that had been legislated before, failed by a much slimmer margin, 249-175.

She was unfazed by the reductio ad absurdum. Asked by one student if the NEA could reject a grant on the grounds that the applicant is a neo-Nazi, she replied: "What [the NEA] would be looking at would be the quality of that exhibition or the work that that neo-Nazi had done in comparison with the rest of the applications that had come in. It just simply isn't permissible to take that type of thing into consideration, because if you do that, then it's OK to say, 'Hmm, Joe's a homosexual. We're not going to look at his application.' "

Davis said congressional opposition to the NEA has "been fueled primarily by two sources outside of the government. One is the American Family Association, which is headed by the Rev. [Donald] Wildmon. The American Family Association is simply a direct-mail political action committee. And it has a 24-point political agenda it would like to see attained by the year 2000. And it's not a pretty agenda. I saw reports of it a few days ago. It includes the elimination of democracy, elimination of public schools, [and] advocates that astrologers, adulterers, blasphemers, homosexuals, and incorrigible children be executed, preferably by stoning. That's one of our enemies. This is true."

I didn't think the American Family Association advocated stoning, so I approached her after the talk and asked for clarification. "It's not the American Family Association," she admitted, "but it is the Coalition on Revival, which includes a number of organizations . . . [among them] the American Family Association. They have this 24-point agenda, not the stoning, but that's what the executive director of the Coalition on Revival is quoted . . . as saying this is what he advocates." The American Family Association, she said, is a "card-carrying member of the coalition."

She said this information came from an article she had read, so I asked her for a copy. It turned out to be from the November/December issue of the left-wing magazine Mother Jones. Even her clarification wasn't entirely accurate. The Mother Jones piece quotes R.J. Rushdoony, a member of the coalition's Steering Committee, as advocating stoning and the abolition of democracy--but is careful to point out that these views do not express the official policy of the coalition.

So, in an effort to paint Donald Wildmon as a kook, Davis is attributing to him extreme views held by someone who happens to be associated with a coalition to which Wildmon's organization belongs.

The NEA's other enemy, Davis said, is "Pat Robertson and his 700 Club," whom she accused of engaging in "smear tactics."

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