The NEA has not clarified how it is implementing new restrictions stemming from Trump administration executive order
Four arts and theater organizations filed an amended complaint today in federal court in Rhode Island in their First Amendment lawsuit against the National Endowment for the Arts (NEA). The complaint was accompanied by discovery requests seeking clarity on precisely how the NEA intends to implement an executive order that directs federal agencies to cease spending federal funds on what the government calls “gender ideology.”
The amended complaint and discovery requests come after the NEA’s self-imposed April 30 deadline to explain to grantees if communicating anything about gender would make them ineligible for awards. New implementation guidelines from the NEA fail to clearly guarantee that grant awards will not be restricted based on the viewpoint of the applicants.
“The NEA cannot require artists to act as mouthpieces for the government’s preferred views,” said Vera Eidelman, senior staff attorney with the ACLU’s Speech, Privacy, and Technology Project. “The First Amendment prohibits the federal government from discriminating based on viewpoint, and the NEA has an obligation to clearly explain that future grant awards will be based solely on artistic excellence and merit, as Congress intended. If the NEA instead continues its unlawful policy of disfavoring certain views, we will seek permanent relief from the court.”
In March, arts and theater groups filed suit challenging a new certification requirement and funding prohibition that the National Endowment for the Arts (NEA) imposed on grant applications. The NEA required applicants to attest that they would not promote “gender ideology” in order to be eligible for funding and blocked any projects that appeared to promote “gender ideology” from getting an award. In response to the suit, the NEA paused the restrictions in order to again assess how best to implement the executive order.
In April, the court held that the NEA’s decision on Feb. 6 to make any project that “promotes” what the government calls “gender ideology” ineligible for funds likely violated the First Amendment and exceeded its statutory authority. It nevertheless concluded that, because the NEA was in the process of determining whether to reimpose that ban, the court would not get in the way of the agency’s decision making process and denied a motion for a preliminary injunction. Following that decision, the NEA issued its final notice regarding how it would implement the executive order.
“The NEA’s notice does very little to assuage any fears that artists or arts organizations may have, that their project applications will be judged on arbitrary and vague ideological metrics, rather than artistic merit,” said Steven Brown, Executive Director of the ACLU of Rhode Island. “As a result, we will continue to seek judicial relief to protect the free speech rights of arts organizations to obtain funding without having to pass an ideological test”
The American Civil Liberties Union, the ACLU of Rhode Island, David Cole, and Lynette Labinger, cooperating counsel for the ACLU-RI, filed the amended complaint in the U.S. District Court of Rhode Island on behalf of Rhode Island Latino Arts; National Queer Theater; The Theater Offensive; and the Theatre Communications Group.
