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FINLEY v. NATIONAL ENDOWMENT FOR THE ARTS

Nos. 92-56028, 92-56387 and 92-55089.

100 F.3d 671 (1996)

Karen FINLEY; John Fleck; Holly Hughes; Tim Miller; National Association of Artists' Organizations, Plaintiffs-Appellees, v. NATIONAL ENDOWMENT FOR THE ARTS; Jane Alexander, in her official capacity as Chairperson of the National Endowment for the Arts, Defendants-Appellants. Karen FINLEY; John Fleck; Holly Hughes; Tim Miller; National Association of Artists' Organizations, Plaintiffs-Appellees, v. NATIONAL ENDOWMENT FOR THE ARTS; Jane Alexander, in her official capacity as Chairperson of the National Endowment for the Arts, Defendants-Appellants. Karen FINLEY; John Fleck; Holly Hughes; Tim Miller; National Association of Artists' Organizations, Plaintiffs-Appellees, v. NATIONAL ENDOWMENT FOR THE ARTS; Jane Alexander, in her official capacity as Chairperson of the National Endowment for the Arts, Defendants-Appellants.

United States Court of Appeals, Ninth Circuit.

Decided November 5, 1996.

Attorney(s) appearing for the Case

Alfred R. Mollin, United States Department of Justice, Washington, DC, for defendants-appellants.

David Cole, Center for Constitutional Rights, New York City, for plaintiffs-appellees.

Gloria C. Phares and Victoria A. Kummer, Weil, Gotshal & Manges, New York City, for amici curiae.

Len L. Munsil, Phoenix, AZ, for amicus curiae.

Robert M. O'Neil, Charlottesville, VA, for amici curiae.

Ann H. Franke, Washington, DC, for amici curiae.

Elliot M. Mincberg and Sonia Bacchus, People for the American Way, Washington, DC, for amici curiae.

Barbara Hoffman, Schwartz, Weiss, Steckler & Hoffman, P.C., on the brief, for Amici Learned Societies.

Before: BROWNING, FERGUSON and KLEINFELD, Circuit Judges.

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...

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