Museum and Library Services Act of 2003 (H.R. 13): Using Obscenity and Decency Criteria in Selecting Grantees

CRS Report for Congress
Museum and Library Services Act of 2003
(H.R. 13): Using “Obscenity and “Decency
Criteria in Selecting Grantees
Andrew W. Murnane
Law Clerk
American Law Division
The Museum and Library Services Act of 2003, H.R. 13, 108th Congress, as passed
by the House, reauthorizes funding for the Institute of Museum and Library Services.
It requires the Director to deny funding to any project that has been found to be obscene
by a court, and requires the Director, in making grants, to “tak[e] into consideration
general standards of decency and respect for the diverse beliefs and values of the
American public.” The Spending Clause of the Constitution gives Congress broad
power to appropriate funds, and the content standards in H.R. 13 appears to fall well
within congressional prerogatives. They would appear to be vulnerable to challenge
only upon a showing that the Institute was implementing them so as to suppress
disfavored viewpoints. This report will be updated as circumstances require.1
On March 6, 2003, the House passed the Museum and Library Services Act of 2003th
H.R. 13, 108 Congress, and the bill is now before the Senate Committee on Health,
Education, Labor, and Pensions. The Institute of Museum and Library Services
administers the federal library and museum projects that would be reauthorized under
H.R. 13. In reauthorizing these programs, the bill would require that the Director of the
Institute establish procedures to prohibit federal funding of projects that have been
determined to be obscene by a court. The bill further requires the Director to ensure that
applications for financial assistance be evaluated “taking into consideration general
standards of decency and respect for the diverse beliefs and values of the American
public.” This report examines the legal status of obscenity and the implications of
Congress’s imposing the “decency and diversity” guidelines as a condition to the exercise
of its spending power.

1 This report was prepared under the general supervision of Larry Eig, Legislative Attorney. For
additional information, see CRS Report 95-815, Freedom of Speech and Press: Exceptions to the
First Amendment, and CRS Report 95-804, Obscenity and Indecency: Constitutional Principles
and Federal Statutes, both by Henry Cohen, Legislative Attorney.
Congressional Research Service ˜ The Library of Congress

Obscenity. Obscenity is not protected speech under the First Amendment. The
United States Supreme Court held in Chaplinsky v. New Hampshire, 315 U.S. 568 (1942),
that “there are certain well-defined and narrowly limited classes of speech, the prevention
and punishment of which have never been thought to raise any Constitutional problem.
These include the lewd and obscene, the profane, the libelous, and the insulting or
‘fighting words,’ those which by their very utterance inflict injury or tend to incite an
immediate breach of the peace.” This list of speech categories has provided a source of
free speech issues that have been litigated extensively since Chaplinsky. But while some
types of speech singled out by Chaplinsky have subsequently been found to be protected
under the First Amendment (lewd and profane), obscene speech remains unprotected.
In Miller v. California, 413 U.S. 15 (1973), the Court formulated a new definition
of “obscenity,” and this definition is expressly included in H.R. 13. The Miller definition
requires an affirmative response to each part of a three-part test, which asks (a) whether
“the average person, applying contemporary community standards” would find that the
work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or
describes, in a patently offensive way, sexual conduct specifically defined by the
applicable state law; and (c) whether the work, taken as a whole, lacks serious literary,
artistic, political, or scientific value. These standards were further refined in Pope v.
Illinois, 481 U.S. 497, 500 (1987), when the Supreme Court held that the first and second
prongs of the Miller test – whether a work appeals to the prurient interest and describes
sexual conduct in a patently offensive way – are questions of fact to be determined by
applying contemporary community standards. The third prong – serious value – is
determined under a reasonable person standard.
Anti-obscenity conditions on grants. It is settled law that Congress may place
conditions on federal funding. The Constitution, Art. I § 8, cl. 1, provides: “The
Congress shall have Power to ... provide for the common Defense and general Welfare
of the United States....” The Supreme Court has examined the breadth of this power,
known as the Spending Clause, on several occasions. The leading modern case is South
Dakota v. Dole, 483 U.S. 203 (1987). In that case, the Supreme Court addressed the
Spending Clause in the context of a provision that conditioned federal highway funding
to the states on their adoption of a minimum drinking age. The Court upheld the
condition after applying a three-part test. First, according to the Court, an exercise of the
spending power must be in “pursuit of the general welfare,” giving deference to Congress
in making the determination as to whether a particular expenditure is intended to serve
general public purposes.2 Congress has determined that the activity authorized by H.R.
13 serves the national interest, and it is therefore unlikely that any court will strike down
this exercise of the spending power for being outside of the national interest.
The second part of the test under South Dakota v. Dole is that conditions be clearly
stated, another factor apparently met under H.R. 13.3 The third requirement of the test is
that a condition relate to the federal interest in particular national projects or program

2 483 U.S. at 207, citing Helvering v. Davis, 301 U.S. 619, 640-641, 645 (1937).
3 483 U.S. at 207.

being conditioned.4 H.R. 13 authorizes appropriations to the Institute of Museum and
Library Services, established in 1996 by Public Law 104-208, and amended by Public
Law 105-128. The requirement under the Act that projects found to be obscene be denied
funding is related to the federal interest in this national program: the Institute of Museum
and Library Services is the federal mechanism for making grants to individuals and state
library administrative agencies, and the condition imposed specifically relates to what
those grants may directly support. Therefore it is unlikely that a court will invalidate this
conditioning of federal funds by Congress on the basis that such conditions are unrelated
to the federal interest in this particular national program.
The congressional spending power is thus very broad. Also, though conditions on
spending may be vulnerable to legal attack if they are exercised in a way that raises
concern about disfavored viewpoints, Regan v. Taxation with Representation of
Washington, 461 U.S. 540 (1997), the requirement imposed by H.R. 13, that denial of
funding to those projects which are found to be obscene, is directed solely against speech
that has already been found without First Amendment protection. Furthermore, the
Supreme Court has characterized Spending Clause legislation as “much in the nature of
a contract: in return for federal funds, the [recipients] agree to comply with federally
imposed conditions.” Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 17
(1981) (emphasis added). Therefore, if grant applicants are awarded a grant and agree to
accept federal funds, they essentially contract not to use those funds to create obscenity.5
Anyone applying for grants from the Institute therefore has no rights outside of those
given under the Act, since the “contract” would be governed by the terms of the grant
application and the internal agency regulations.
The Act itself provides additional evidence of the limited possibilities a grant
applicant would have to challenge the obscenity condition. For example, the Act states
that “[t]he Director shall establish procedures for reviewing and evaluating such
applications. Such procedures shall not be subject to any review outside of the Institute.”6
Further, disapproval of an application under the Act is explicitly disclaimed as a finding
of obscenity: “[D]isapproval of an application by the Director shall not be construed to
mean, and shall not be considered as evidence that, the project for which the applicant
requested financial assistance is or is not obscene.”7
Decency and diversity guidelines. In exercising its spending power, Congress
may prescribe criteria that distinguish among otherwise protected speech.
In National Endowment for the Arts v. Finley, 524 U.S. 569 (1998), the Supreme
Court upheld the constitutionality of a federal statute (20 U.S.C. § 954(d)(1)) requiring
the NEA, in awarding grants, to “take into consideration general standards of decency and

4 Id., citing Massachusetts v. United States, 435 U.S. 444, 461 (1978).
5 Presumably, the primary way that the anti-obscenity provision would come into direct play
would be an instance in which an already-funded project is cut off after it has been found to be
obscene in the context of a criminal prosecution.
6 H.R. 13, 108th Cong. § 103(g)(2) (2003).
7 H.R. 13, 108th Cong. § 103(3)(C) (2003).

respect for the diverse beliefs and values of the American public,” the identical language
found in H.R 13. In upholding the language of the statute, the Court observed:
Any content-based considerations that may be taken into account in the
grant-making process are a consequence of the nature of arts funding. The
NEA has limited resources . . . . The agency may decide to fund particular
projects for a wide variety of reasons, “such as the technical proficiency
of the artist, the creativity of the work, the anticipated public interest in or
appreciation of the work, the work’s contemporary relevance, its
educational value, its suitability for or appeal to special audiences . . . , its
service to a rural or isolated community, or even simply that the work
could increase public knowledge of an art form.” . . . “[I]t would be
impossible to have a highly selective grant program without denying
money to a large amount of constitutionally protected expression.” The
“very assumption” of the NEA is that grants will be awarded according to
the “artistic worth of competing applicants,” and absolute neutrality is8
simply “inconceivable.”
Nonetheless, the Court did acknowledge that, if the statute were “applied in a manner
that raises concern about the suppression of disfavored viewpoints,” then such application
might be unconstitutional. For example, the Court indicated that it would be
impermissible to “leverage . . . power to award subsidies on the basis of subjective criteria
into a penalty on disfavored viewpoints” or to otherwise use a grant program to aim at the
suppression of “dangerous ideas.”9
In summary, obscenity is not protected speech under the First Amendment.
Congressional spending powers are very broad, and courts are loathe to invalidate
exercises of those powers unless they are clearly outside the public interest. Conditions
on appropriations must be related to the federal interest in a particular project or program.
Requiring the Institute of Museum and Library Services to deny or curtail funding to
projects that have been determined to be obscene by a court of competent jurisdiction
appears to meet this “relatedness” test and be a valid exercise of congressional spending
power. In addition, the decency and diversity guidelines that H.R. 13 would impose have
been held not to violate the First Amendment as long as they are not applied in a manner
so as to suppress disfavored viewpoints.

8 524 U.S. at 585 (citations omitted).
9 Id. at 587.