Finley v. National Endowment for the Arts

100 F.3d 671

Opinions

Opinion by Judge BROWNING; Dissent by Judge KLEINFELD.

JAMES R. BROWNING, Circuit Judge:

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.¹

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 must consult and receive the advice of the 26-member National Council on the Arts.² 20 U.S.C. § 955(f). The Chairperson may not approve any application disapproved by the National Council. Id. The Chairperson must also utilize advisory panels to review applications and make recommendations to the National Council. 20 U.S.C. § 959(c).

An advisory panel recommended approval of plaintiffs’ applications; a majority of the Council recommended disapproval; the Chairperson denied the applications. The district court concluded the statutory standard under which the applications were judged, which requires the NEA 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)(1), violated plaintiffs’ due process and free speech rights.³

I.

The void-for-vagueness doctrine incorporates several important due process principles.⁴ It requires that a law give fair notice of its mandate. “[B]ecause we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 38 L.Ed.2d 222 (1972). The void-for-vagueness doctrine also requires that a law provide explicit standards for those who are to apply it. “A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” Id. at 108-09, 92 S.Ct. at 2299.

The twin dangers of a vague law — lack of notice and arbitrary or discriminatory application — may chill the exercise of important constitutional rights. “[W]here a vague statute ‘abut[s] upon sensitive areas of basic First Amendment freedoms,’ it ‘operates to inhibit the exercise of [those] freedoms.’ ” Id. at 109, 92 S.Ct. at 2299 (citation omitted). Not surprisingly, therefore, courts apply a heightened vagueness standard to a law that could deter protected speech because of its uncertain meaning. N.A.A.C.P. v. Button, 371 U.S. 415, 432-33, 83 S.Ct. 328, 337-38, 9 L.Ed.2d 405 (1963) (“[Standards of permissible statutory vagueness are strict in the area of free expression.... Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.”).⁵

A.

NEA’s primary contention is that the vagueness of the “decency and respect” provision is not an issue. In its view, Congress did not compel NEA to add this element to the standard for judging grant applications, and the NEA elected not to add it. The standard therefore remains as it was before the amendment: the sole criteria for judging grant applications are “artistic excellence and artistic merit.”

NEA reads the “decency and respect” amendment as requiring only that the Chairperson “tak[e] into consideration general standards of decency and respect for diverse beliefs and values” when promulgating regulations and procedures for judging grant applications. 20 U.S.C. § 954(d)(1) (emphasis added). According to NEA, the Chairperson did address Congress’s concern that decency and respect for diverse beliefs and values be considered in funding decisions, and concluded no change in the regulations was necessary because the NEA’s governing statute requires advisory panels with diversified membership to review applications and make recommendations to the National Council.⁶ The Chairperson reasoned that because advisory panels were composed of members chosen to reflect a wide range of backgrounds and points of view, the decisions of these panels as to the artistic excellence and merit of individual, applications would necessarily reflect general- standards of decency and show respect for the diverse beliefs and- values of the American public.

This interpretation reads § 954(d) as if it had not been amended. Congress added the clause at issue — “taking into consideration general standards of decency and respect”— immediately after the clause specifying the criteria by which applications are to be judged — “artistic excellence and artistic merit.” Read together, these clauses instruct the Chairperson to ensure that standards of decency and respect for diverse values are considered when judging the artistic merit and excellence of an application.

Congress spoke in mandatory terms when it amended the criteria for judging grant applications: “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.” 20 U.S.C. § 954(d) (emphasis added). This language does not grant the Chairperson broad discretion in establishing criteria for judging grant applications, as NEA contends; it actually restricts the Chairperson’s discretion by requiring him or her to judge applications according to standards of “decency and respect.”⁷

NEA’s reading of § 954(d)(1) is also contrary to traditional canons of statutory construction. If § 954(d)(1) required nothing more than diverse advisory panels, the “decency and respect” provision would be redundant in view of § 959(c), also adopted as part of the 1990 amendments, which expressly requires that advisory panels reflect diversity.⁸ See Freytag v. Commissioner, 501 U.S. 868, 877, 111 S.Ct. 2631, 2638, 115 L.Ed.2d . 764 (1991) (“Our cases consistently have expressed ‘a deep reluctance -to interpret a statutory provision so as to render superfluous other provisions in the same enactment.’ ”) (citation omitted).⁹

And turning to the legislative history, as we do to interpret an ambiguously worded statute, makes it clear that Congress intended to change the standard NEA applied in judging applications for funding, not simply to ask the NEA to consider the problem. NEA had been attacked for funding controversial artists and art works. Criticism had focused on a series of photographs by Robert Mapplethorpe objected to as homoerotic images, and on a photograph by Andres Serrano criticized as blasphemous. The “decency and respect” provision was enacted in direct response to this controversy and was specifically designed to prevent the funding of similar art works. Members of Congress noted that the “decency and respect” provision would prevent the funding of similar works in the future.¹⁰ 136 Cong.Rec. H9410-57 (Oct. 11,1990).

In the words of Representative Henry, author of the provision: “[Tjhis substitute includes language in the heart of the grant making ... process. We add to the criteria of artistic excellence and artistic merit, a shell, a screen, a viewpoint that must be constantly taken into account on behalf o[f] the American public_” 136 Cong.Rec. H9417 (Oct. 11, 1990). Representative Henry described the provision as “new language now in the grant procedure itself which mandates that in the awarding of funds, in the award process itself, general standards of decency must be accorded.” 136 Cong. Rec. H9457 (Oct. 11, 1990). In the same vein, Representative Coleman, cosponsor of the bill, said: “[W]e have added language ... which underscores that the decisions of artistic excellence must take into consideration general standards of decency and respect for the diverse beliefs and values of the American public. Works which deeply offend the sensibilities of significant portions of the public ought not to be supported with public funds.” 136 Cong.Rec. H9410 (Oct. 11,1990).

In concluding that Congress intended to include the criteria of “decency and respect” in the standard for judging grant applications, we reject NEA’s contention that § 954(d)(1) is to be read as a compromise between legislators who wanted to impose explicit content restrictions upon funding and those who wanted to impose no “decency and respect” restriction at all, and agreed simply to identify “decency and respect” as an area of concern but require no further action by NEA. No proposal submitted to Congress would have permitted funding with no content restriction at all. The dispute was not over whether NEA should be free to fund indecent or disrespectful art, but over the way in which the new limitation would be imposed: whether Congress should specify categories of art that could not be funded or instruct NEA to consider general standards of “decency and respect” in judging the artistic merit of a grant application. Congress settled on the latter approach.

We also reject NEA’s argument that Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), requires deference to NEA’s construction of its statutory mandate. NEA’s construction of the statute as permitting the Chairperson to rely upon greater diversity in advisory panel membership in lieu of a change in the criteria for judging grant applications is not a “permissible” or “reasonable” one to which deference is required. Id. at 843-45, 104 S.Ct. at 2782-83. Moreover, NEA itself did not in practice adopt the interpretation of the “decency and respect” provision it advocates in this litigation. In a meeting held on December 14 and 15, 1990, the Chairperson and National Council considered a number of proposals to implement the “decency and respect” provision. They did not question their obligation under § 954(d)(1) to judge grant applications according to “general standards of decency and respect for the diverse beliefs and values of the American public.” Instead, to satisfy this new obligation, NEA officials adopted the approach of having the Chairperson instruct advisory panel members to bring their own definitions of these terms “to the table” and make them “part of the deliberative process.” Minutes of the December 1990 Retreat of the National Council on the Arts at 21, S.E.R. at 23.

B.

NEA contends that even if § 954(d)(1) requires it to judge grant applications according to general standards of decency and respect, the Chairperson could by regulation implement this standard in a way that would obviate the vagueness problem. However, the NEA has failed to present a narrowing construction that is consistent with the language and purpose of the statute, and “we will not rewrite a ... law to conform it to constitutional requirements.” Virginia v. American Booksellers Ass’n., 484 U.S. 383, 397, 108 S.Ct. 636, 645, 98 L.Ed.2d 782 (1988); see also Heckler v. Mathews, 465 U.S. 728, 741, 104 S.Ct. 1387, 1396, 79 L.Ed.2d 646 (1984) (“The canon favoring constructions of statutes to avoid constitutional questions does not ... license a court to usurp the policymaking and legislative functions of duly elected representatives.”).

NEA suggests the Chairperson could apply § 954(d)(1) by rejecting applications for funding of projects that are obscene under the standard announced in Miller v. California, 413 U.S. 15, 24-25, 93 S.Ct. 2607, 2614-16, 37 L.Ed.2d 419 (1973)—a standard that passed the vagueness test in Hamling v. United States, 418 U.S. 87, 110-16, 94 S.Ct. 2887, 2904-07, 41 L.Ed.2d 590 (1974). However, the proposed construction would render redundant a separate prohibition against funding projects determined to be obscene, subsection (2) of section 954(d).¹¹ See Freytag, 501 U.S. at 877, 111 S.Ct. at 2638. Congress adopted the “decency and respect” provision because it was broader and had a different meaning than the provision prohibiting the funding of obscene art.¹² Moreover, the NEA’s proposed construction would be contrary to the express intent of Congress that determinations of obscenity be made by the courts and not by NEA.¹³

NEA also seems to 'suggest the Chairperson might avoid the vagueness problem by adopting the definition of “indecent communication” promulgated by the Federal Communication Commission and applying the standard only to works intended for children.¹⁴ This Construction is precluded by Congress’s explicit refusal to include the FCC’s definition of indecency in § 954(d)(1).¹⁵ Congress considered the definition inappropriate for the arts, even if appropriate for broadcasting.¹⁶ Moreover, unlike the statute implemented by the FCC’s regulation, § 954(d)(1) is not aimed solely at indecent speech harmful to minors, but requires the NEA to judge all grant applications according to both “general standards of decency and respect for the diverse beliefs and values of the American public.” 20 U.S.C. § 954(d)(1) (emphasis added). Nothing in § 954(d)(1) or its legislative history suggests the NEA may choose to apply the “decency and respect” provision to some funding applications and not to others or that it may ignore the “respect” criterion when it does apply the provision.

C.

NEA and the dissent argue the “decency and respect” provision is not subject to a vagueness challenge because it does not regulate, conduct directly but merely subsidizes speech. Although the need for fair warning may be less when a statute does not directly regulate conduct, the need for specific standards to prevent arbitrary and discriminatory application of provisions that touch upon speech may be even greater when a statute subsidizes speech and the risk that the’provision on its face will inhibit speech remains. See Grayned, 408 U.S. at 108, 92 S.Ct. at 2298; Bullfrog Films, Inc. v. Wick, 847 F.2d 502, 514 (9th Cir.1988) (holding void for vagueness a regulatory provision exempting from import duties certain types of written materials); Big Mama Rag, Inc. v. United States, 631 F.2d 1030, 1039 (D.C.Cir.1980) (holding void for vagueness a- tax exemption for educational and charitable organizations).¹⁷

NEA also argues that the decency provision is not subject to a vagueness challenge because it merely directs the Chairperson to promulgate regulations and establish procedures to govern applications for funding; such regulations and procedures may be subject to the void-for-vagueness test, but the direction to the Chairperson to establish them is not. This argument rests on the interpretation of § 954(d)(1) rejected earlier. Section 954(d)(1) is not a broad grant of regulatory authority which the Chairperson may implement in a discretionary manner, but a directive to. the NEA to judge grant applications according to standards of “decency and respect.”

The “decency and respect” provision was enacted to prevent the funding of particular types of art. To that end, it places a mandatory duty on the Chairperson to ensure that grant applications are judged according to “general standards of decency and respect for the diverse beliefs and values of the American public.” The Chairperson has no discretion to ignore this obligation, enforce only part of it, or give it a cramped construction. Rather, the Chairperson, Council, and advisory panels must examine each grant application to determine if it comports with “general standards of decency” and shows “respect for diverse beliefs and values” as they subjectively understand these terms. The record indicates this is exactly how the Chairperson and Council interpreted the provision prior to this litigation.

So construed, the “decency and respect” provision violates due process because “no standard of conduct is specified at all,” Coates v. City of Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 1688, 29 L.Ed.2d 214 (1971), and the statute thus provides no “ascertainable standard for inclusion and exclusion.” Smith v. Goguen, 415 U.S. 566, 578, 94 S.Ct. 1242, 1249, 39 L.Ed.2d 605 (1974). Without doubt, persons “of common intelligence must necessarily guess at [the] meaning and differ as to' [the] application” of the terms “decency” and “respect.” See Connolly v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). These terms are inherently ambiguous, varying in-meaning from individual to individual. See Smith, 415 U.S. at 573, 94 S.Ct. at. 1247 (“[W]hat is contemptuous to one ... may be a work of art to another.”); Coates, 402 U.S. at 614, 91 S.Ct. at 1688 (“Conduct that annoys some people does not annoy others.”); Cohen v. California, 403 U.S. 15, 25, 91 S.Ct. 1780, 1788, 29 L,Ed.2d 284 (1971) (“[O]ne[’s] vulgarity is another’s lyric.”). The content of the term “diverse beliefs and values of the American public” is also impossible to define. The individual members of a pluralistic society, and particularly our own, have a great variety of beliefs and values, largely unascer-tainable. See Bullfrog Films, 847 F.2d at 513.

Since it is not-susceptible to objective definition, the “decency and respect” standard gives rise to the danger of arbitrary and discriminatory application.¹⁸ It grants government officials power to deny an application for funding if the application offends the officials’ subjective beliefs and values. Inevitably, NEA’s decision not to fund a particular artist or project as indecent or disrespectful will depend in part on who is judging the application and whether that official agrees with the artist’s point of view. Under such a grant of authority, funding may be refused because of the artist’s political or social message or because the art or the artist is too controversial. This danger is especially pronounced because a vague statute effectively shields decisions from review. Where First Amendment liberties are at stake, such a grant of authority violates fundamental principles of due process.

II.

Our holding that § 954(d)(1) is unconstitutionally vague effectively disposes of this case. However, in view of the dissent’s argument that the government may restrict the content of speech it funds, we briefly explain why the First Amendment’s¹⁹ prohibition on content- and viewpoint-based restrictions provides an alternate ground for our decision.

“It is axiomatic” that under the First Amendment, “the government may not regulate speech based on its substantive content or the message it conveys.” Rosenberger, — U.S. at -, 115 S.Ct. at 2516; see also Action for Children’s Television v. F.C.C., 58 F.3d 654, 659 (D.C.Cir.1995). A content-based restriction on speech is therefore presumed unconstitutional, Rosenberger, — U.S. at -, 115 S.Ct. at 2516, and must be subjected to “ ‘the most exacting scrutiny.’ ” Texas v. Johnson, 491 U.S. 397, 412, 109 S.Ct. 2533, 2544, 105 L.Ed.2d 342 (1989) (quoting Boos v. Barry, 485 U.S. 312, 321, 108 S.Ct. 1157, 1164, 99 L.Ed.2d 333 (1988)). To survive this scrutiny, the government must advance a compelling interest served by its regulation of the content of protected speech, and the regulation must be narrowly tailored to serve that interest. Sable Communications v. F.C.C., 492 U.S. 115, 126, 109 S.Ct. 2829, 2836, 106 L.Ed.2d 93 (1989); Denver Area Educ. Telecommunications Consortium, Inc. v. F.C.C., — U.S. -, -, 116 S.Ct. 2374, 2385, 135 L.Ed.2d 888 (1996) (government may directly regulate speech “to address extraordinary problems, where its regulations are appropriately tailored to resolve those problems without imposing an unnecessarily great restriction on speech”); Action for Children’s Television, 58 F.3d at 659.

The presence of government funding alters this framework somewhat. The government may make content-based choices “when it is the speaker or when it enlists private entities to convey its own message.” Rosenberger, — U.S. at-, 115 S.Ct. at 2518. Thus, the Supreme Court has upheld regulations that granted tax deductions for veterans’ groups but not for other charitable groups engaged in lobbying, see Regan v. Taxation With Representation, 461 U.S. 540, 545-48, 103 S.Ct. 1997, 2000-02, 76 L.Ed.2d 129 (1983), and barred recipients of federal family planning funds from providing information on abortion. Rust v. Sullivan, 500 U.S. 173, 200, 111 S.Ct. 1759, 1776, 114 L.Ed.2d 233 (1991). As the Court explained in Rust, “when the government appropriates public funds to establish a program it is entitled to define the limits of that program.” Id. at 194, 111 S.Ct. at 1773.

Government funding does not invariably justify government control of the content of speech, however. In Rust, the Court cautioned that its holding would not apply to public fora or to universities, which occupied “a traditional sphere of free expression so fundamental to the functioning of our society that the Government’s ability to control speech within that sphere by means of conditions attached to the expenditure of Government funds is restricted.” Rust, 500 U.S. at 200, 111 S.Ct. at 1776.

In addition, Rust and Rosenberger identify two related contexts in which the government may subsidize speech only if it does so in a way that is viewpoint-neutral. Neutrality may be required because the area is a “traditional sphere of free expression,” Rust, 500 U.S. at 200, or because the government has declared its intention to “encourage a diversity of views from private speakers.” Rosenberger, — U.S. at -, 115 S.Ct. at 2519. Both approaches support the district court’s conclusion that government funding of the arts, in the circumstances of this case, must be viewpoint-neutral.

As the district court explained, the arts, no less than the university, are “at the core of a democratic society’s cultural and political vitality,” Finley, 795 F.Supp. at 1473. The district court’s analysis is full and cogent, and we need not repeat it here.²⁰ Similarly, Congress has clearly indicated the NEA’s purpose is to support a diverse array of artistic expression. Even the most cursory review of the NEA’s enabling statute reveals this intent. In its findings, Congress emphasized that a democracy must “honor and preserve its multi-cultural artistic heritage as well as support new ideas” and declared its intent “to help create and sustain ... a climate encouraging freedom of thought, imagination, and inquiry.” 20 U.S.C. § 951(10), (7). The Senate Report accompanying the legislation emphasized that “freedom of artistic and humanistic expression” was to be given “the fullest attention” and that “[c]on-formity for its own sake is not to be encouraged, and ... no undue preference should be given to any particular style or school of thought or expression.” See S.Rep. No. 300, 89th Cong., 1st Sess. 4 (1965). The House reaffirmed this view in adopting the 1985 amendments to the NEA’s governing legislation, urging NEA to be “more responsive to funding programs that represent the many traditions in our heritage and the full cultural diversity of our citizens.... [T]he [funded] programs should be open and richly diverse, reflecting the ferment of ideas which has always made this Nation strong and free.” H.R.Rep. No. 274, 99th Cong., 1st Sess. 13, reprinted in 1985 U.S.C.C.A.N. 1055, 1058. The NEA and it programs were created to encourage diverse private speech and not, as the dissent suggests, to engage in “speech for hire.”

The First Amendment prohibits the government from “regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.” Rosenberger, — U.S. at-, 115 S.Ct. at 2516 (citing Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46, 103 S.Ct. 948, 955, 74 L.Ed.2d 794 (1983)); see Johnson, 491 U.S. at 414, 109 S.Ct. at 2545 (“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the .idea itself offensive or disagreeable.”). Even when the government is funding speech, it may not distinguish between speakers on the basis of the speaker’s viewpoint or otherwise “ai[m] at the suppression of dangerous ideas.” Regan, 461 U.S. at 548, 103 S.Ct. at 2002 (quoting Cammarano v. United States, 358 U.S. 498, 513, 79 S.Ct. 524, 533, 3 L.Ed.2d 462 (1959)); see Hannegan v. Esquire, Inc., 327 U.S. 146, 158-59, 66 S.Ct. 456, 462-63, 90 L.Ed. 586 (1946).

Therefore, we cannot agree with NEA’s assertion that the “decency and respect” provision does not reflect viewpoint discrimination.²¹ In Rosenberger, the Supreme Court found viewpoint discrimination in a university regulation that “selected] for disfavored treatment those student journalistic efforts with religious editorial viewpoints.” — U.S. at -, 115 S.Ct. at 2517. Central to the court’s decision was the fact that under the regulation, any topic treated from a religious perspective would be denied funding. See id. (“Religion ... provides ... a specific premise, a perspective, a standpoint from which a variety of subjects may be discussed and considered. The prohibited perspective, not the general subject matter, resulted in the refusal to make third-party payments”). Here too, it is the treatment of a subject, not the subject itself, that is disfavored. Two depictions of the same subject matter — an American flag, for example — could be treated differently if NEA believed one depiction symbolized an “indecent” perspective or demonstrated disrespect for “the diverse beliefs and values of the American public,” and the other did not.

The dissent argues we have erred in applying the body of law for regulation of speech and generally available entitlements to prizes. According to the dissent, since the NEA grants are a prize given to a select few, rather than a generally available benefit, the government can choose to support only a certain viewpoint. The Supreme Court explicitly rejected a similar argument by the University in Rosenberger. As the Court explained, “[t]he government cannot justify viewpoint discrimination among private speakers on the economic fact of scarcity.” — U.S. at -, 115 S.Ct. at 2519. Although NEA awarded only 88 grants from an applicant pool of 5,168, it cannot provide those scarce grants to favor a particular viewpoint. See id. at - - -, 115 S.Ct. at 2519-20 (rejecting the University’s argument that “scarcity would give the State the right to exercise viewpoint discrimination that is otherwise impermissible”).

NEA contends the “decency and respect” provision is permissible because it can be implemented in a viewpoint- and content-neutral way.²² As we have explained, however, § 954(d)(1) on its face requires NEA to take “decency” and “respect” into account in considering grant applications. Like the funding restriction, at issue in Rosenberger, the “decency and respect” provision clearly focuses on the content of the speech at issue; it “has a speech-based restriction as its sole rationale and operative principle.” Rosenberger, — U.S. at -, 115 S.Ct. at 2519.

The “decency and respect” provision authorizes viewpoint discrimination, an “egregious form of content discrimination.” Rosenberger, — U.S. at -, 115 S.Ct. at 2516. Because the government has made no attempt to articulate a compelling interest served by the provision,²³ § 954(d)(1) cannot survive strict scrutiny.²⁴

III.

The “decency and respect” provision of § 954(d)(1) is void for vagueness under the Fifth Amendment, and impermissibly restricts plaintiffs’ First Amendment rights as well.

AFFIRMED.

1 . We do not address the district court’s ruling in favor of plaintiffs on their claim that the Chairperson violated the NEA's governing statute by obtaining the advice of the National Council on the Arts through a telephone poll before acting on plaintiffs' applications. The parties have set-tied this issue.

We also do not reach plaintiffs' claim that the statute imposes an unconstitutional condition in violation of F.C.C. v. League of Women Voters, 468 U.S. 364, 104 S.Ct. 3106, 82 L.Ed.2d 278 (1984). The district court denied summary judgment on the ground that there were disputed issues of fact bearing on the claim, and this denial of summary judgment is not appealable. Because the issue is not properly before us, we do not. address the dissent's suggestion that League of Women Voters is distinguishable.

2 . The Chairperson and Council members are appointed by the President, by and with the advice and consent of the Senate. 20 U.S.C. §§ 954(b)(1), 955(b).

3 . 20 U.S.C. § 954(d), as amended in 1990, reads as follows:

No payment shall be made under this section except upon application therefor which is submitted to the National Endowment for the Arts in accordance with regulations issued and procedures established by the Chairperson. In establishing such regulations and procedures, the Chairperson shall ensure that—

(1) 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....

(added language emphasized).

4 . Although the dissent argues the applicants have no property right'in NEA grants and their liberty to express themselves is not regulated by the grants, the right to engage in free speech is a liberty interest protected by due process. See, e.g., Procunier v. Martinez, 416 U.S. 396, 418, 94 S.Ct. 1800, 1814, 40 L.Ed.2d 224 (1974), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989); Reed v. Village of Shorewood, 704 F.2d 943, 949 (7th Cir.1983) (“Freedom of speech is one of the liberties the due process clause has been held to protect.”). Art is one of many protected forms of speech. See Miller v. California, 413 U.S. 15, 34, 93 S.Ct. 2607, 2620, 37 L.Ed.2d 419 (1973). While the artists do not have a property right in the grants, they are protected by the due process clause from arbitrary and discriminatory enforcement of vague standards that " ‘abut[s] upon sensitive areas of basic First Amendment freedoms.’ ” Grayned v. City of Rockford, 408 U.S. 104, 109, 92 S.Ct. 2294, 2299, 33 L.Ed.2d 222 (1972) (citation omitted).

The First Amendment, moreover, is an independent source of vagueness doctrine. See N.A.A.C.P. v. Button, 371 U.S. 415, 432-33; 83 S.Ct. 328, 337-38, 9 L.Ed.2d 405 (1963); Kreimer v. Bureau of Police, 958 F.2d 1242, 1266 (3d Cir.1992) (explaining that "courts have transplanted this due process principle into the First Amendment setting”). Thus, we routinely consider whether speech-related statutes are imper-missibly vague without specifying the liberty or property interest at stake. See Bullfrog Films, Inc. v. Wick, 847 F.2d 502, 512-14 (9th Cir.1988); Planned Parenthood v. Arizona, 718 F.2d 938, 946-49 (9th Cir.1983), In this case, we ground our discussion of vagueness in both the Fifth and First Amendments.

In addition, we disagree with the dissent’s suggestion that First Amendment vagueness doctrine only applies if the government regulates speech or places conditions on a generally available benefit. As the Court noted in Rosenberger, the scarcity of a government benefit does not render it immune from constitutional limitations. See Rosenberger v. Rector & Visitors of the Univ. of Virginia, — U.S. -, -, 115 S.Ct. 2510, 2519-20, 132 L.Ed.2d 700 (1995).

5 . NEA contends that on review of a facial challenge, plaintiffs may prevail only if "there are no constitutional ways that the statute can be implemented.” This standard applies only if the statute "implicates no constitutionally protected conduct.” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982); United States v. Wunsch (In re Swan), 84 F.3d 1110, 1119 (9th Cir.1996). When a law implicates free speech, a "more stringent vagueness test” should apply. Hoffman, 455 U.S. at 499, 102 S.Ct. at 1193; see also Wunsch, 84 F.3d at 1119.

6 .The statute requires the Chairperson to: "issue regulations and establish procedures ... to ensure that all panels are composed, to the extent practicable, of individuals reflecting a wide geographic, ethnic, and minority representation as well as individuals reflecting diverse artistic and cultural points of view_” 20 U.S.C. § 959(c).

7 . The dissent suggests this provision merely requires the NEA to think about standards of decency and respect rather than to act according to what thoughts of "decency and respect” might dictate. This suggestion is implausible on its face and belied by the record. During the period in which the plaintiffs’ applications were being considered, Chairperson Frohnmayer told his staff that the NEA had to live in a "political world" and reject some grant applications to "reassure [the NEA’s] constituency.” (Supplemental Excerpts of Record 148).

8 . See supra note 6.

9 . NEA's argument that its interpretation of § 954(d)(1) does not render the “decency and respect” provision redundant because under NEA’s interpretation the Chairman was not compelled to make any change in the standard at all, necessarily fails with our rejection of NEA's in-teipretation of § 954(d)(1).

10 . Mapplethorpe’s and Serrano's works were also referred to during debates on NEA's budget. See, e.g., 135 Cong.Rec. H3637, H3640 (July 12, 1989).

11 . 20 U.S.C. § 954(d)(2) reads:

Such regulations and procedures shall clearly indicate that obscenity is without artistic merit, is not protected speech, and shall not be funded. Projects, productions, workshops, and programs that are determined to be obscene are prohibited from receiving financial assistance under this subchapter from the National Endowment for the Arts.

NEA argues the suggested regulation would not render section 954(d)(2) redundant because the latter applies only to material "determined to be obscene” by a court. This argument does not affect the other reasons stated in the text for the invalidity of the hypothetical regulation.

12 . See 136 Cong.Rec. H9457 (Oct. 11, 1990) (Statement of Rep. Henry) ("[The decency and respect provision] is much broader than all the obscenity language which we have been debating about.... [G]iven the Miller versus California standard, anything that has artistic merit is not by legal definition obscene. So, how can we seek to address the problem that we heard from our constituents? We put general decency requirements into the act.”).

13 . "The term ‘determined to be obscene’ means determined, in a final judgment of a court of record and of competent jurisdiction in the United States, to be obscene.” 20 U.S.C. § 952(j). See 136 Cong.Rec. H9676 (Oct. 15, 1990) (statement of Rep. Weiss) ("Is not one of the problems also that whereas the Williams/Coleman [amendment] provides for the obscenity determination to be made by the courts, in the Regula amendment the determination would have to be made by NEA and that in itself would be unconstitutional, an abrogation of first amendment rights."); 136 Cong.Rec. H9411 (Oct. 11, 1990) (statement of Rep. Richardson) ("The legislation that we have in front of us says very clearly that the NEA may not fund obscenity and the determination of obscenity is left to the courts not politicians, not bureaucrats. But the courts, among juries of average people.”).

14 . The NEA refers to a 1989 statute that prohibits any person from knowingly using the telephone to make "any indecent communication for commercial purposes which is available to any person under 18 years of age or to any other person without that person’s consent....” 47 U.S.C. § 223(b)(2)(A). The FCC defined "indecent communication" as "the description or depiction of sexual or excretory activities or organs in a patently offensive manner as measured by contemporary standards for the telephone medium.” Information Providers’ Coalition v. F.C.C., 928 F.2d 866, 874 (9th Cir.1991) (holding regulation is not unconstitutionally vague).

15 . When Congress enacted the "decency and respect” provision, it rejected a rival amendment, the Regula amendment. The Regula amendment would have required the NEA to judge grant applications according to the decency standard articulated in F.C.C. v. Pacifica Found., 438 U.S. 726, 731-32, 98 S.Ct. 3026, 3030-31, 57 L.Ed.2d 1073 (1978) — the same standard adopted by the FCC in the "dial-a-pom" context. See Information Providers' Coalition, 928 F.2d at 874 (noting that the FCC's definition of “indecent communication" was lifted from the broadcast regulation at issue in Pacifica).

16 . 136 Cong.Rec. H9680 (Oct. 15, 1990) (statement of Rep. Coleman) ("[T]he Regula amendment is in fact imposing a standard created by the Supreme Court to protect children listening to the radio, and he is applying it to everyone, including adults, by his amendment_ Coming out over the airwaves is one thing. Going to a theater performance is another.”).

17 .Our conclusion is not affected by Rust v. Sullivan, 500 U.S. 173, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991) and Regan v. Taxation with Representation, 461 U.S. 540, 103 S.Ct. 1997, 76 L.Ed.2d 129 (1983). Neither case involved a vagueness challenge. Moreover, in Bullfrog Films we held a duty exemption void for vagueness while recognizing the general principles announced in Re-gan. And, as we discuss more1 fully in Part II, Rust is of limited applicability in light of the reasoning of Rosenberger v. Rector & Visitors of the Univ. of Virginia, — U.S. -, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995), differentiating government programs that encourage private speech from government programs that use private speakers "to transmit specific information pertaining to [government] program[s].” Id. at -, 115 S.Ct. at 2519. The NEA is a quintessential example of a government program designed to encourage private speech, rather than one that seeks to use private individuals for a particular government-purpose, such as the dissent's example of commissioning an artist to create a bust of Lincoln for display in a public building.

18 . The dissent suggests that it is untenable to find the “decency” and "respect” criteria imper-missibly vague without also holding unconstitutional the statute’s provision that "artistic excellence and artistic merit are the criteria by which applications are judged.” 20 U.S.C. § 954(d)(1). The short answer is that appellants have challenged only the “decency” and "respect” criteria, and therefore only these criteria are before us. The application of the "void for vagueness” doctrine to the criteria of "artistic excellence and artistic merit” may present quite different considerations.

One obvious difference may be the extent to which the two sets of criteria implicate the policy concerns underlying the "void for vagueness” doctrine. See generally Bullfrog Films, 847 F.2d at 512 (vague laws are objectionable because they "trap the innocent by not providing fair warning,” invite arbitrary and discriminatory enforcement, and discourage the exercise of constitutional rights). A second difference that may affect the outcome is the context in which the criteria are applied and the characteristics of the decision makers. Funding applications are reviewed by advisory panels composed of artists and "lay individuals who are knowledgeable about the arts.” 20 U.S.C. § 959(c)(2). Recommendations of the advisory panels are reviewed by the National Council of the Arts, which is composed of persons to be selected “from among the private citizens of the United States who (A) are widely recognized for their broad knowledge of, or expertise in, or for their profound interest in, the arts and (B) have established records of distinguished service, or achieved eminence, in the arts.” 20 U.S.C. § 955(b).

Such decision makers possess an expertise in determining “artistic excellence and artistic merit” that will guide their application of these criteria; they have no corresponding expertise in applying such free-floating concepts as "decency” and “respect.”. As then-NEA Chairperson Frank Hodsoll testified, "I don’t see any way for a Federal panel ... expert in the arts, not expert in community standards ... to make determinations for the entire Nation as to what is acceptable or what is not going to be patently offensive." Reauthorization of Foundation on the Arts and the Humanities Act of 1965, Joint Hearings Before the Subcomm. on Select Education & the Subcomm. on Post-secondary Education of the Comm, on Education and Labor, 99th Cong., 1st Sess. 552 (1985).

19 . Art is protected by the First Amendment. As the Supreme Court noted in Miller v. California, "[tjhe First Amendment protects works which, taken as a whole, have serious literary, artistic, political, or scientific value." 413 U.S. at 34, 93 S.Ct. at 2620.

20 . NEA contends the district court erred by extending Rust to the arts funding context, arguing the Rust exceptions are limited to "special places” and “special relationships.” This argument is foreclosed by Rosenberger, which took a much broader view of the First Amendment's applicability to subsidized speech. See Rosenberger, -U.S. at -, 115 S.Ct. at 2517 (university's student activities fund, while not a traditional physical forum, was subject to First Amendment constraints).

21 . NEA and the dissent rely on two cases, Advocates for the Arts v. Thomson, 532 F.2d 792 (1st Cir.1976), and Piarowski v. Illinois Community College Dist. 515, 759 F.2d 625 (7th Cir.1985). Both cases are distinguishable. Moreover, both were decided before Rosenberger, and to the extent they conflict with this most recent teaching on viewpoint discrimination, are not persuasive.

22 . On similar grounds, NEA urges us not to reach plaintiffs' First Amendment claims. However, we disagree with NEA's assertion that the district court’s First Amendment decision was "obviously premature" because it rested on assumptions about how the Chairperson would implement § 954(d)(l)'s "decency and respect" provision. Under the interpretation originally proposed by NEA, the statute was implemented when the Chairperson, taking “decency and respect" into consideration, decided no changes in the application process were needed. We rejected this interpretation in Part 1(A), supra, and - NEA now argues we should avoid the First Amendment issues because "there is no way to predict what the Chairperson’s new manner of implementing the statute would be." Plaintiffs bring a facial challenge, however. Although NEA is entitled to promulgate regulations interpreting the statute, we are not obligated to withhold judgment while the agency does so.

23 . Amici suggest Congress may have wished to avoid requiring taxpayers to fund work they found offensive. However, neither protecting people from offensive and indecent speech nor protecting the taxpayer from unwanted expenditures is a compelling interest sufficiént to justify content-based restrictions on speech. See F.C.C. v. Pacifica Found., 438 U.S. 726, 745, 98 S.Ct. 3026, 3038, 57 L.Ed.2d 1073 (1978) ("[T]he fact that society may find speech offensive is not a sufficient reason for suppressing it."); Sable, 492 U.S. at 126, 109 S.Ct. at 2836 (First Amendment protects speech that is "indecent but not obscene”); F.C.C. v. League of Women Voters, 468 U.S. 364, 385 n. 16, 104 S.Ct. 3106, 3120 n. 16, 82 L.Ed.2d 278 (1984) (taxpayers' opposition to expenditure of government funds cannot "be invoked to justify a congressional decision to suppress speech”).

24 .The district court concluded § 954(d)(1) was unconstitutionally overbroad because it was a content-based restriction that "swe[pt] within its ambit speech and artistic expression which is protected by the First Amendment.” Finley, 795 F.Supp. at 1476. Although we frame our discussion in terms of strict scrutiny, we agree with the district court's conclusion.