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KAREN FINLEY; JOHN FLECK; 
HOLLYHUGHES; TIM MILLER; NATIONAL
ASSOCIATION OF ARTISTS'ORGANIZATIONS,
Plaintiffs-Appellees,                     No. 92-56028
v.                                        D.C. No.                     
                                          CV-90-5236-AWT
NATIONAL ENDOWMENT FOR THEARTS; 
JANE ALEXANDER,* in her                   OPINION
official capacity as Chairperson of
the National Endowment for theArts,
Defendants-Appellants.

KAREN FINLEY; JOHN FLECK; HOLLYHUGHES; 
TIM MILLER; NATIONAL
ASSOCIATION OF ARTISTS'ORGANIZATIONS,
Plaintiffs-Appellees,                    No. 92-56387
v.                                       D.C. No.   
                                         CV-90-5236-AWT
NATIONAL ENDOWMENT FOR THEARTS; 
JANE ALEXANDER, in herofficial capacity as Chairperson of
the National Endowment for the
Arts,Defendants-Appellants. 
_________*Pursuant to Fed. R. App. P. 43(c)(1), 
Jane Alexander has been substi-tuted for her predecessor 
in office, Anne-Imelda Radice.
KAREN FINLEY; JOHN FLECK; HOLLYHUGHES; 
TIM MILLER; NATIONALASSOCIATION OF ARTISTS'ORGANIZATIONS,
Plaintiffs-Appellees,                 No. 92-55089
v.                                    D.C. No.       
                                      CV-90-5236-AWT
NATIONAL ENDOWMENT FOR THEARTS; 
JANE ALEXANDER, in her 
official capacity as Chairperson of
the National Endowment for theArts,
Defendants-Appellants.

Appeals from the United States District Court
for the Central District of CaliforniaA. Wallace Tashima, District Judge, Presiding
Argued and SubmittedFebruary 3, 1994--Pasadena, California
Filed November 5, 1996
Before: James R. Browning, Warren J. Ferguson, and
Andrew J. Kleinfeld, Circuit Judges.
Opinion by Judge Browning; Dissent by Judge Kleinfeld

________________________COUNSEL Alfred R. Mollin, United States Department of Justice, Wash-ington, D.C., for the defendants-appellants.David Cole, Center for Constitutional Rights, New York,New York, for the plaintiffs-appellees.Gloria C. Phares and Victoria A. Kummer, Weil, Gotshal &Manges, New York, New York, for the amici curiae.Len L. Munsil, Phoenix, Arizona, for the amicus curiae.Robert M. O'Neil, Charlottesville, Virginia, for the amicicuriae.Ann H. Franke, Washington, D.C., for the amici curiae.Elliot M. Mincberg and Sonia Bacchus, People for the Ameri-can Way, Washington, D.C., for the amici curiae.

__________________OPINION BROWNING, Circuit Judge:Plaintiffs Karen Finley, John Fleck, Holly Hughes, and TimMiller were refused fellowships under the defendant NationalEndowment for the Arts' ("NEA") solo performance artistsprogram. They filed suit, alleging, among other things, that aprovision of the NEA's governing statute identifying the stan-dard for approval of funding applications violated the Fifthand First Amendments because it was impermissibly vagueand imposed content-based restrictions on protected speech.The district court agreed, granted summary judgment to theplaintiffs, 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 statedby the district court.1Congress gave the NEA authority "to establish and carryout a program of . . . grants-in-aid . . . to . . . individuals ofexceptional talent engaged in or concerned with the arts." 20U.S.C. S 954(c). The Chairperson of the NEA has ultimateauthority to approve or disapprove grants. 20 U.S.C.SS 954(c), 955(f). Before making a decision on a particulargrant application, however, the Chairperson must consult andreceive the advice of the 26-member National Council on theArts.2 20 U.S.C. S 955(f). The Chairperson may not approveany application disapproved by the National Council. Id. TheChairperson must also utilize advisory panels to review appli-cations and make recommendations to the National Council.20 U.S.C. S 959(c).An advisory panel recommended approval of plaintiffs'applications; a majority of the Council recommended disap-proval; the Chairperson denied the applications. The districtcourt concluded the statutory standard under which the appli-cations were judged, which requires the NEA to "tak[e] intoconsideration general standards of decency and respect for thediverse beliefs and values of the American public, " 20 U.S.C.S 954(d)(1), violated plaintiffs' due process and free speechrights.3I.The void-for-vagueness doctrine incorporates severalimportant due process principles.4 It requires that a law givefair notice of its mandate. "[B]ecause we assume that man isfree to steer between lawful and unlawful conduct, we insistthat laws give the person of ordinary intelligence a reasonableopportunity to know what is prohibited, so that he may actaccordingly." Grayned v. City of Rockford, 408 U.S. 104, 108(1972). The void-for-vagueness doctrine also requires that alaw provide explicit standards for those who are to apply it."A vague law impermissibly delegates basic policy matters topolicemen, judges, and juries for resolution on an ad hoc andsubjective basis, with the attendant dangers of arbitrary anddiscriminatory application." Id. at 108-09.The twin dangers of a vague law -- lack of notice and arbi-trary or discriminatory application -- may chill the exerciseof important constitutional rights. "[W]here a vague statute`abut[s] upon sensitive areas of basic First Amendment free-doms,' it `operates to inhibit the exercise of[those] free-doms.' " Id. at 109 (citation omitted). Not surprisingly, there-fore, courts apply a heightened vagueness standard to a lawthat could deter protected speech because of its uncertainmeaning. N.A.A.C.P. v. Button, 371 U.S. 415, 432 -33 (1963)("[S]tandards of permissible statutory vagueness are strict inthe area of free expression. . . . Because First Amendmentfreedoms need breathing space to survive, government mayregulate in the area only with narrow specificity.").5A.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 stan-dard for judging grant applications, and the NEA elected notto add it. The standard therefore remains as it was before theamendment: the sole criteria for judging grant applications are"artistic excellence and artistic merit."NEA reads the "decency and respect" amendment asrequiring only that the Chairperson "tak[e ] into considerationgeneral standards of decency and respect for diverse beliefsand values" when promulgating regulations and proceduresfor judging grant applications. 20 U.S.C. S 954(d)(1) (empha-sis added). According to NEA, the Chairperson did addressCongress's concern that decency and respect for diversebeliefs and values be considered in funding decisions, andconcluded no change in the regulations was necessary becausethe NEA's governing statute requires advisory panels withdiversified membership to review applications and make rec-ommendations to the National Council.6 The Chairperson rea-soned that because advisory panels were composed ofmembers chosen to reflect a wide range of backgrounds andpoints of view, the decisions of these panels as to the artisticexcellence and merit of individual applications would neces-sarily reflect general standards of decency and show respectfor the diverse beliefs and values of the American public.[1] This interpretation reads S 954(d) as if it had not beenamended. Congress added the clause at issue --"taking intoconsideration general standards of decency and respect" --immediately after the clause specifying the criteria by whichapplications are to be judged -- "artistic excellence and artis-tic merit." Read together, these clauses instruct the Chairper-son to ensure that standards of decency and respect for diversevalues are considered when judging the artistic merit andexcellence of an application.[2] Congress spoke in mandatory terms when it amendedthe criteria for judging grant applications: "the Chairpersonshall ensure that . . . artistic excellence and artistic merit arethe criteria by which applications are judged, taking into con-sideration general standards of decency and respect for thediverse beliefs and values of the American public. " 20 U.S.C.S 954(d) (emphasis added). This language does not grant theChairperson broad discretion in establishing criteria for judg-ing grant applications, as NEA contends; it actually restrictsthe Chairperson's discretion by requiring him or her to judgeapplications according to standards of "decency and respect."7[3] NEA's reading of S 954(d)(1) is also contrary to tradi-tional canons of statutory construction. If S 954(d)(1) requirednothing more than diverse advisory panels, the "decency andrespect" provision would be redundant in view ofS 959(c),also adopted as part of the 1990 amendments, which expresslyrequires that advisory panels reflect diversity. 8 See Freytag v.Commissioner, 501 U.S. 868, 877 (1991) ("Our cases consis-tently have expressed `a deep reluctance to interpret a statu-tory provision so as to render superfluous other provisions inthe same enactment.' ") (citation omitted). 9[4] And turning to the legislative history, as we do to inter-pret an ambiguously worded statute, makes it clear that Con-gress intended to change the standard NEA applied in judgingapplications for funding, not simply to ask the NEA to con-sider the problem. NEA had been attacked for funding contro-versial artists and art works. Criticism had focused on a seriesof photographs by Robert Mapplethorpe objected to as homo-erotic images, and on a photograph by Andres Serrano criti-cized as blasphemous. The "decency and respect " provisionwas enacted in direct response to this controversy and wasspecifically designed to prevent the funding of similar artworks. Members of Congress noted that the "decency andrespect" provision would prevent the funding of similar worksin the future.10 136 Cong. Rec. H9410-57 (Oct. 11, 1990).In the words of Representative Henry, author of the provi-sion: "[T]his substitute includes language in the heart of thegrant making . . . process. We add to the criteria of artisticexcellence and artistic merit, a shell, a screen, a viewpointthat must be constantly taken into account on behalf o[f] theAmerican public . . . ." 136 Cong. Rec. H9417 (Oct. 11,1990). Representative Henry described the provision as "newlanguage now in the grant procedure itself which mandatesthat in the awarding of funds, in the award process itself, gen-eral standards of decency must be accorded." 136 Cong. Rec.H9457 (Oct. 11, 1990). In the same vein, RepresentativeColeman, cosponsor of the bill, said: "[W]e have added lan-guage . . . which underscores that the decisions of artisticexcellence must take into consideration general standards ofdecency and respect for the diverse beliefs and values of theAmerican public. Works which deeply offend the sensibilitiesof significant portions of the public ought not to be supportedwith public funds." 136 Cong. Rec. H9410 (Oct. 11, 1990).[5] In concluding that Congress intended to include thecriteria of "decency and respect" in the standard for judginggrant applications, we reject NEA's contention thatS 954(d)(1) is to be read as a compromise between legislatorswho wanted to impose explicit content restrictions upon fund-ing and those who wanted to impose no "decency andrespect" restriction at all, and agreed simply to identify"decency and respect" as an area of concern but require nofurther action by NEA. No proposal submitted to Congresswould have permitted funding with no content restriction atall. The dispute was not over whether NEA should be free tofund indecent or disrespectful art, but over the way in whichthe new limitation would be imposed: whether Congressshould specify categories of art that could not be funded orinstruct NEA to consider general standards of "decency andrespect" in judging the artistic merit of a grant application.Congress settled on the latter approach.[6] We also reject NEA's argument that Chevron U.S.A.,Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837(1984), requires deference to NEA's construction of its statu-tory mandate. NEA's construction of the statute as permittingthe Chairperson to rely upon greater diversity in advisorypanel membership in lieu of a change in the criteria for judg-ing grant applications is not a "permissible" or "reasonable"one to which deference is required. Id. at 843-45. 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 Chair-person and National Council considered a number of propos-als to implement the "decency and respect" provision. Theydid not question their obligation under S 954(d)(1) to judgegrant applications according to "general standards of decencyand respect for the diverse beliefs and values of the Americanpublic." Instead, to satisfy this new obligation, NEA officialsadopted the approach of having the Chairperson instruct advi-sory panel members to bring their own definitions of theseterms "to the table" and make them "part of the deliberativeprocess." Minutes of the December 1990 Retreat of theNational Council on the Arts at 21, S.E.R. at 23.B.[7] NEA contends that even if S 954(d)(1) requires it tojudge grant applications according to general standards ofdecency and respect, the Chairperson could by regulationimplement this standard in a way that would obviate thevagueness problem. However, the NEA has failed to presenta narrowing construction that is consistent with the languageand purpose of the statute, and "we will not rewrite a . . . lawto conform it to constitutional requirements." Virginia v.American Booksellers Ass'n., 484 U.S. 383, 397 (1988); seealso Heckler v. Mathews, 465 U.S. 728, 741 (1984) ("Thecanon favoring constructions of statutes to avoid constitu-tional questions does not . . . license a court to usurp the poli-cymaking and legislative functions of duly elected representa-tives.").[8] NEA suggests the Chairperson could apply S 954(d)(1)by rejecting applications for funding of projects that areobscene under the standard announced in Miller v. California, 413 U.S. 15, 24 -25 (1973) -- a standard that passed thevagueness test in Hamling v. United States, 418 U.S. 87, 110-16 (1974). However, the proposed construction would renderredundant a separate prohibition against funding projectsdetermined to be obscene, subsection (2) of section 954(d).11See Freytag, 501 U.S. at 877. Congress adopted the "decencyand respect" provision because it was broader and had a dif-ferent meaning than the provision prohibiting the funding ofobscene art.12 Moreover, the NEA's proposed constructionwould be contrary to the express intent of Congress that deter-minations of obscenity be made by the courts and not by NEA.13[9] NEA also seems to suggest the Chairperson might avoidthe vagueness problem by adopting the definition of "indecentcommunication" promulgated by the Federal CommunicationCommission and applying the standard only to worksintended for children.14 This construction is precluded byCongress's explicit refusal to include the FCC's definition ofindecency in S 954(d)(1).15 Congress considered the definitioninappropriate for the arts, even if appropriate for broadcasting.16Moreover, unlike the statute implemented by the FCC's regu-lation, S 954(d)(1) is not aimed solely at indecent speechharmful to minors, but requires the NEA to judge all grantapplications according to both "general standards of decencyand respect for the diverse beliefs and values of the Americanpublic." 20 U.S.C. S 954(d)(1) (emphasis added). Nothing inS 954(d)(1) or its legislative history suggests the NEA maychoose to apply the "decency and respect" provision to somefunding applications and not to others or that it may ignorethe "respect" criterion when it does apply the provision.C.NEA and the dissent argue the "decency and respect" pro-vision is not subject to a vagueness challenge because it doesnot regulate conduct directly but merely subsidizes speech.Although the need for fair warning may be less when a statutedoes not directly regulate conduct, the need for specific stan-dards to prevent arbitrary and discriminatory application ofprovisions that touch upon speech may be even greater whena statute subsidizes speech and the risk that the provision onits face will inhibit speech remains. See Grayned, 408 U.S. at108; Bullfrog Films, Inc. v. Wick, 847 F.2d 502, 514 (9th Cir.1988) (holding void for vagueness a regulatory provisionexempting from import duties certain types of written materi-als); Big Mama Rag, Inc. v. United States, 631 F.2d 1030,1039 (D.C. Cir. 1980) (holding void for vagueness a taxexemption for educational and charitable organizations).17NEA also argues that the decency provision is not subjectto a vagueness challenge because it merely directs the Chair-person to promulgate regulations and establish procedures togovern applications for funding; such regulations and proce-dures may be subject to the void-for-vagueness test, but thedirection to the Chairperson to establish them is not. Thisargument rests on the interpretation of S 954(d)(1) rejectedearlier. Section 954(d)(1) is not a broad grant of regulatoryauthority which the Chairperson may implement in a discre-tionary manner, but a directive to the NEA to judge grantapplications according to standards of "decency and respect."* * *[10] The "decency and respect" provision was enacted toprevent the funding of particular types of art. To that end, itplaces a mandatory duty on the Chairperson to ensure thatgrant applications are judged according to "general standardsof decency and respect for the diverse beliefs and values ofthe American public." The Chairperson has no discretion toignore this obligation, enforce only part of it, or give it acramped construction. Rather, the Chairperson, Council, andadvisory panels must examine each grant application to deter-mine if it comports with "general standards of decency" andshows "respect for diverse beliefs and values " as they subjec-tively understand these terms. The record indicates this isexactly how the Chairperson and Council interpreted the pro-vision prior to this litigation.[11] So construed, the "decency and respect" provision vio-lates due process because "no standard of conduct is specifiedat all," Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971),and the statute thus provides no "ascertainable standard forinclusion and exclusion." Smith v. Goguen, 415 U.S. 566, 578(1974). Without doubt, persons "of common intelligence mustnecessarily guess at [the] meaning and differ as to [the]application" of the terms "decency" and "respect." See Con-nally v. General Constr. Co., 269 U.S. 385, 391 (1926). Theseterms are inherently ambiguous, varying in meaning fromindividual to individual. See Smith, 415 U.S. at 573 ("[W]hatis contemptuous to one . . . may be a work of art to another.");Coates, 402 U.S. at 614 ("Conduct that annoys some peopledoes not annoy others."); Cohen v. California, 403 U.S. 15,25 (1971) ("[O]ne['s] vulgarity is another's lyric."). The con-tent of the term "diverse beliefs and values of the Americanpublic" is also impossible to define. The individual membersof a pluralistic society, and particularly our own, have a greatvariety of beliefs and values, largely unascertainable. SeeBullfrog Films, 847 F.2d at 513.[12] Since it is not susceptible to objective definition, the"decency and respect" standard gives rise to the danger ofarbitrary and discriminatory application.18 It grants govern-ment officials power to deny an application for funding if theapplication offends the officials' subjective beliefs and values.Inevitably, NEA's decision not to fund a particular artist orproject as indecent or disrespectful will depend in part on whois judging the application and whether that official agreeswith the artist's point of view. Under such a grant of author-ity, funding may be refused because of the artist's political orsocial message or because the art or the artist is too controver-sial. This danger is especially pronounced because a vaguestatute effectively shields decisions from review. Where FirstAmendment liberties are at stake, such a grant of authorityviolates fundamental principles of due process.II.[13] Our holding that S 954(d)(1) is unconstitutionallyvague effectively disposes of this case. However, in view ofthe dissent's argument that the government may restrict thecontent of speech it funds, we briefly explain why the FirstAmendment's19 prohibition on content- and viewpoint-basedrestrictions provides an alternate ground for our decision."It is axiomatic" that under the First Amendment, "the gov-ernment may not regulate speech based on its substantive con-tent or the message it conveys." Rosenberger, 115 S. Ct. at2516; see also Action for Children's Television v. F.C.C., 58F.3d 654, 659 (D.C. Cir. 1995). A content-based restriction onspeech is therefore presumed unconstitutional, Rosenberger,115 S. Ct. at 2516, and must be subjected to " `the most exact-ing scrutiny.' " Texas v. Johnson, 491 U.S. 397, 412 (1989)(quoting Boos v. Barry, 485 U.S. 312, 321 (1988)). To survivethis scrutiny, the government must advance a compellinginterest served by its regulation of the content of protectedspeech, and the regulation must be narrowly tailored to servethat interest. Sable Communications v. F.C.C., 492 U.S. 115,126 (1989); Denver Area Educ. Telecommunications Consor-tium, Inc. v. F.C.C., 116 S. Ct. 2374, 2385 (1996) (govern-ment may directly regulate speech "to address extraordinaryproblems, where its regulations are appropriately tailored toresolve those problems without imposing an unnecessarilygreat restriction on speech"); Action for Children's Television,58 F.3d at 659.The presence of government funding alters this frameworksomewhat. The government may make content-based choices"when it is the speaker or when it enlists private entities toconvey its own message." Rosenberger, 115 S. Ct. at 2518.Thus, the Supreme Court has upheld regulations that grantedtax deductions for veterans' groups but not for other charita-ble groups engaged in lobbying, see Regan v. Taxation WithRepresentation, 461 U.S. 540, 545 -48 (1983), and barredrecipients of federal family planning funds from providinginformation on abortion. Rust v. Sullivan, 500 U.S. 173, 200(1991). As the Court explained in Rust, "when the govern-ment appropriates public funds to establish a program it isentitled to define the limits of that program." Id. at 194.Government funding does not invariably justify govern-ment control of the content of speech, however. In Rust, theCourt cautioned that its holding would not apply to publicfora or to universities, which occupied "a traditional sphere offree expression so fundamental to the functioning of our soci-ety that the Government's ability to control speech within thatsphere by means of conditions attached to the expenditure ofGovernment funds is restricted." Rust, 500 U.S. at 200.In addition, Rust and Rosenberger identify two related con-texts in which the government may subsidize speech only ifit does so in a way that is viewpoint-neutral. Neutrality maybe required because the area is a "traditional sphere of freeexpression," Rust, 500 U.S. at 200, or because the governmenthas declared its intention to "encourage a diversity of viewsfrom private speakers." Rosenberger, 115 S. Ct. at 2519. Bothapproaches support the district court's conclusion that govern-ment funding of the arts, in the circumstances of this case,must be viewpoint-neutral.As the district court explained, the arts, no less than theuniversity, are "at the core of a democratic society's culturaland political vitality," Finley, 795 F. Supp. at 1473. The dis-trict court's analysis is full and cogent, and we need not repeatit here.20 Similarly, Congress has clearly indicated the NEA'spurpose is to support a diverse array of artistic expression.Even the most cursory review of the NEA's enabling statutereveals this intent. In its findings, Congress emphasized thata democracy must "honor and preserve its multicultural artis-tic heritage as well as support new ideas" and declared itsintent "to help create and sustain . . . a climate encouragingfreedom of thought, imagination, and inquiry." 20 U.S.C.S 951(10), (7). The Senate Report accompanying the legisla-tion emphasized that "freedom of artistic and humanisticexpression" was to be given "the fullest attention" and that"[c]onformity for its own sake is not to be encouraged, and. . . no undue preference should be given to any particularstyle or school of thought or expression." See S. Rep. No.300, 89th Cong., 1st Sess. 4 (1965). The House reaffirmedthis view in adopting the 1985 amendments to the NEA'sgoverning legislation, urging NEA to be "more responsive tofunding programs that represent the many traditions in ourheritage 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 thisNation strong and free." H. R. Rep. No. 274, 99th Cong., 1stSess. 13, reprinted in 1985 U.S.C.C.A.N. 1055, 1058. TheNEA and it programs were created to encourage diverse pri-vate speech and not, as the dissent suggests, to engage in"speech for hire."[14] The First Amendment prohibits the government from"regulating speech when the specific motivating ideology orthe opinion or perspective of the speaker is the rationale forthe restriction." Rosenberger, 115 S. Ct. at 2516 (citing PerryEduc. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 46(1983)); see Johnson, 491 U.S. at 414 ("If there is a bedrockprinciple underlying the First Amendment, it is that the gov-ernment may not prohibit the expression of an idea simplybecause society finds the idea itself offensive or disagree-able."). Even when the government is funding speech, it maynot distinguish between speakers on the basis of the speaker'sviewpoint or otherwise "ai[m] at the suppression of dangerousideas." Regan, 461 U.S. at 548 (quoting Cammarano v.United States, 358 U.S. 498, 513 (1959)); see Hannegan v.Esquire, Inc., 327 U.S. 146, 158 -59 (1946).[15] Therefore, we cannot agree with NEA's assertion thatthe "decency and respect" provision does not reflect view-point discrimination.21 In Rosenberger, the Supreme Courtfound viewpoint discrimination in a university regulation that"select[ed] for disfavored treatment those student journalisticefforts with religious editorial viewpoints." 115 S. Ct. at2517. Central to the court's decision was the fact that underthe regulation, any topic treated from a religious perspectivewould be denied funding. See id. ("Religion . . . provides . . .a specific premise, a perspective, a standpoint from which avariety of subjects may be discussed and considered. The pro-hibited perspective, not the general subject matter, resulted inthe refusal to make third-party payments."). Here too, it is thetreatment of a subject, not the subject itself, that is disfavored.Two depictions of the same subject matter -- an Americanflag, for example -- could be treated differently if NEAbelieved one depiction symbolized an "indecent " perspectiveor demonstrated disrespect for "the diverse beliefs and valuesof the American public," and the other did not.The dissent argues we have erred in applying the body oflaw for regulation of speech and generally available entitle-ments to prizes. According to the dissent, since the NEAgrants are a prize given to a select few, rather than a generallyavailable benefit, the government can choose to support onlya certain viewpoint. The Supreme Court explicitly rejected asimilar argument by the University in Rosenberger. As theCourt explained, "[t]he government cannot justify viewpointdiscrimination among private speakers on the economic factof scarcity." 115 S. Ct. at 2519. Although NEA awarded only88 grants from an applicant pool of 5,168, it cannot providethose scarce grants to favor a particular viewpoint. See id. at2519-20 (rejecting the University's argument that "scarcitywould give the State the right to exercise viewpoint discrimi-nation that is otherwise impermissible").[16] NEA contends the "decency and respect" provision ispermissible because it can be implemented in a viewpoint-and content-neutral way.22 As we have explained, however,S 954(d)(1) on its face requires NEA to take "decency" and"respect" into account in considering grant applications. Likethe funding restriction at issue in Rosenberger, the "decencyand respect" provision clearly focuses on the content of thespeech at issue; it "has a speech-based restriction as its solerationale and operative principle." Rosenberger, 115 S. Ct. at2519.The "decency and respect" provision authorizes viewpointdiscrimination, an "egregious form of content discrimination."Rosenberger, 115 S. Ct. at 2516. Because the government hasmade no attempt to articulate a compelling interest served bythe provision,23 S 954(d)(1) cannot survive strict scrutiny.24III.The "decency and respect" provision of S 954(d)(1) is voidfor vagueness under the Fifth Amendment, and impermissiblyrestricts plaintiffs' First Amendment rights as well.AFFIRMED. KLEINFELD, Circuit Judge, dissenting:I respectfully dissent.First Amendment law has taken some odd turns lately. Wenow live in a legal context prohibiting display of a cross ormenorah on government property. American Jewish Congressv. City of Beverly Hills, 1996 WL 409164, *1 (9th Cir.7/19/96), Separation of Church and State Committee v. Cityof Eugene, 93-35094 (9th Cir. 8/20/96). But if a cross isimmersed in urine, a government grant cannot be withheld onthe ground that the art would offend general standards ofdecency and respect for the religious beliefs of most Ameri-cans. The government, under today's decision, cannot evenconsider "general standards of decency and respect for thediverse beliefs and values of the American public " when itgives artists grants. Yet we penalize private employers forslowness in firing employees who do not show decency andrespect for other employees. See Steiner v. Showboat Operat-ing Company, 25 F.3d 1459 (9th Cir. 1994). This self-contradictory silliness is not built into the Bill of Rights. TheFirst Amendment does not prohibit the free exercise of com-mon sense.Artists, and for that matter, non-artists, are constitutionallyentitled to express themselves indecently and disrespectfullytoward the beliefs and values of as much of the Americanpublic as they like. Indecency sometimes helps to communi-cate an idea effectively, and it is constitutionally protected.See Cohen v. California, 403 U.S. 15 (1971). Lenny Bruce'smonologues needed offensive indecency to accomplish theirlegitimate artistic objective. The same language that gave riseto liability in Steiner was essential to Allen Ginsberg's artisticexpression in Howl and Kaddish. The great Modigliani nudesare frankly erotic and focus on the models' pubic hair; ourConstitution unquestionably protects them from censorship.Less artistically distinguished attempts to communicate bymeans of offensiveness and indecency are also entitled toFirst Amendment protection. Molly Bloom's soliloquy, Aris-tophanes' jokes about passing gas, Shakespeare's doubleentendres, the indecent kiss in Chaucer's Miller's Tale, andcountless works by lesser artists, such as Samuel Clemens'1601 and Vladimir Nabakov's Lolita, are all part of theancient artistic tradition of using the impolite or indecent inart. Every general art history textbook reproduces and dis-cusses Edouard Manet's Luncheon On the Grass, a paintingof a nude woman looking at the artist while two fully clothedmen sit next to her and talk to each other. The content andviewpoint doubtless offend, but the art history books are con-stitutionally protected regardless. There can be no constitu-tional excuse for allowing the government to censor art ongrounds of indecency or offensiveness. I hope that it is still asclear as it was when Cohen came down that anyone in Amer-ica, artist or not, has a constitutional right to express himselfindecently and offensively.That offensive or indecent expression cannot be censoreddoes not mean that the government has to pay for it. By draw-ing the line between private expression and government con-duct, we preserve liberty for individual expression, whilepreserving democracy for governmental decisions. Any timegovernment enters a previously private sphere of conduct, theline becomes blurred, and the issues difficult. Governmentsubsidy of art was an easy issue when the Medicis hired art-ists -- the Medicis could freely impose their preferences. Butwhen a democratic government pays artists to stick theirthumbs in the public's eye, the public naturally becomesannoyed, and attempts to exercise its ordinary authority in ademocracy to control through Congress how tax monies arespent.Whether government can consider content and viewpointdepends on whether the money it gives out is generally avail-able to all who meet some basic standard, or whether it is aprize given to a select few. Only 88 out of 5168 applicants forVisual Artists Fellowships won grants in fiscal year 1994.1994 Annual Report, National Endowment for the Arts 10.Applying for an NEA arts grant is not like applying for wel-fare, social security, a tax exemption, or a student activitygrant. NEA grants are prizes for the fortunate few, not entitle-ments.The case at bar does not involve government censorship. IfCongress had prohibited artists from expressing themselvesindecently or disrespectfully, the Constitution would makesuch a law null and void. The NEA statute before us is notsuch a law. It does not restrict what artists do. It restricts whatthe NEA can do. This case is about whether the Americanpeople can require a government agency to consider, in givinggrants to very few of the many artists in the country, "generalstandards of decency and respect for the diverse beliefs andvalues of the American public."Our decision today creates a conflict with the only othercircuits to have confronted a similar issue. Advocates for theArts v. Thomson, 532 F.2d 792 (1st Cir.), cert. denied, 429U.S. 894 (1976). In Advocates, New Hampshire denied anNEA grant to a literary magazine because the governor andstate arts commission thought a poem it published was inde-cent. The First Circuit, rejecting the First Amendment chal-lenge, explained that denial of a grant was not suppression ofspeech, and the grant selection process necessarily discrimi-nated based on content: [P]ublic funding of the arts seeks "not to abridge, restrict, or censor speech, but rather to use public money to facilitate and enlarge" artistic expression. A disappointed grant applicant cannot complain that his work has been suppressed, but only that anoth- er's has been promoted in its stead. The decision to withhold support is unavoidably based in some part on the "subject matter" or "content" of expression, for the very assumption of public funding of the arts is that decisions will be made according to the liter- ary or artistic worth of competing applicants.Id. at 795.Advocates suggests that every disappointed grant applicanthas the same First Amendment right of self-expression, butthat does not mean that every disappointed grant applicant hasa First Amendment claim. Id. at 795-96. Suppose the NEAarts panel discriminates by viewpoint against an excellent art-ist whose work is too conventional for the panel's tastes --an artist with the superb technique of a Robert Mapplethorpeand the vision of a Norman Rockwell. And suppose it dis-criminates against another whose art is too indecent andoffensive. And another, whose viewpoint is interesting butwhose technique is less than excellent. Do all have FirstAmendment claims under the majority decision? Only the onewho creates indecent art? Only the ones with excellent tech-nique? It is impossible to have a highly selective grant pro-gram without denying money to a large amount ofconstitutionally protected expression, decent and indecent.The Seventh Circuit ruled similarly to the First Circuit, inPiarowski v. Illinois Community College, 759 F.2d 625 (7thCir. 1985). The chairman of the art department hung hisstained glass panels of such subjects as "the naked rump of abrown woman, and sticking out from (or into) it a whitecylinder" in the college's gallery near the main entrance to aheavily trafficked building. The college told him to movethree panels to a less heavily trafficked fourth floor displayspace, after receiving "complaints from students, cleaningwomen, and black clergymen." Id. at 628. The main entrancespace was especially desirable, but not a public forum, andnot available to all. The artist lost his case.The Seventh Circuit distinguished between what an artist isfree to create, and what the government must display. If Claes Oldenberg, who created a monumental sculpture in the shape of a baseball bat for display in a public plaza in Chicago, had created instead a giant phallus, the city would not have had to display it next to a heavily trafficked thoroughfare.Id. at 630.Advocates points out the resemblance of a governmentgrant program to a government auditorium providing spacefor artistic performances. If it is a public forum, then neutral-ity is required by the First Amendment. Advocates, 532 F.2dat 796. But if the space is available only to a select fewinvited exhibitors as in Piarowski, then the government,already excluding much constitutionally protected art, neednot be neutral toward offensive or indecent art. That is why,in the Piarowski example, Chicago would be free to discrimi-nate in favor of baseball bats and against phalluses in thehypothetical display.The majority tries to distinguish the First Circuit and Sev-enth Circuit cases on the ground that they came down beforeRosenberger v. Rector & Visitors of University of Virginia,115 S. Ct. 2510 (1995), and Rosenberger now prohibits thecontent or viewpoint discrimination they allowed. That mis-reads Rosenberger. The university which lost Rosenbergerpaid expenses for virtually all student organizations, butdenied the money to plaintiffs because they expressed aChristian viewpoint. In its zeal to steer clear of the establish-ment clause, the university, like the school district in Lamb'sChapel v. Center Moriches Union Free School District, 113S.Ct. 2141 (1993), overlooked the free speech clause.Rosenberger holds that a university which makes moneygenerally available for student groups' expenses, to encouragea diversity of views rather than to express its own, cannot dis-criminate against an applicant based on that applicant's view-point. Rosenberger teaches that when government makes abenefit generally available to all within a diverse class, it can-not make an exception based on what a particular applicantwishes to say. This extends Lamb's Chapel v. Center Mori-ches Union Free School District, 113 S.Ct. 2141 (1993), fromspace to money, thereby preventing discrimination againstspeech on the ground that it was religious. A public forum canbe created by money, not just real estate. This is becausespeech is often disseminated by print and electronics, ratherthan by standing in front of people and talking to them. Cf.Buckley v. Valeo, 424 U.S. 1, 19 (1976).We and the District of Columbia Circuit had decided,before Rosenberger, what might be classified as money-as-a-public-forum cases. In Bullfrog Films, Inc. v. Wick, 847 F.2d502 (9th Cir. 1980), we held that customs duties exemptionsfor any educational or cultural materials could not excludepropaganda films based on their content and viewpoint. In BigMama Rag, Inc. v. United States, 631 F.2d 1030 (D.C. Cir.1980), the District of Columbia Circuit held that a tax exemp-tion generally available to educational organizations could notbe denied based on a regulation requiring full and fair exposi-tion of facts enabling a reader to draw an independent conclu-sion. Under these cases, all applicants in the class wereentitled to the financial benefit from the government, unlessthe content of their speech was contrary to government stan-dards. By contrast, in the case at bar, no applicant is entitledto the financial benefit.The case at bar would be analogous to Rosenberger (and Iwould join the majority in rejecting the "decency and respect"clause as unconstitutional), if the NEA gave out grants to vir-tually all artists except for those whose work violated"general standards of decency and respect for the diversebeliefs and values of the American public." Arts grants wouldthen be the financial equivalent of a tax credit for all artists,and under Rosenberger, Big Mama Rag and Bullfrog, thefinancial benefit could not be conditioned on a vague andcontent- or viewpoint-based criterion like the "decency andrespect" formula. Much as parade permits may be allocatedon a first come first served principle, but not to favor particu-lar viewpoints, arts grants would have to be allocated on someneutral principle, such as first come first served, or randomselection. Cf. Rosenberger, 115 S.Ct. at 2519.It is not the case that whenever the government givesmoney to someone for talking, the recipient may say, with thegovernment's money, whatever he or she likes. The govern-ment can hire people to say what it wants, and require themto say it. [W]hen government appropriates public funds to promote a particular policy of its own it is entitled to say what it wishes. When the government disburses public funds to private entities to convey a govern- mental message, it may take legitimate and appropri- ate steps to ensure that its message is neither garbled nor distorted by the grantee.Rosenberger, 115 S.Ct. at 2519 (explaining Rust v. Sullivan, 500 U.S. 173 (1991)). But when the government gives moneyto encourage a diversity of views from private speakers in aclass not defined by what they say, such as university stu-dents, it "may not silence the expression of selected view-points." Id.The majority misreads Rosenberger's rejection of the Uni-versity of Virginia's argument that scarcity of money justifiedviewpoint discrimination. Rosenberger, 115 S. Ct. at 2519-20.The context was a program in which grants went to virtuallyall speakers but those with a Christian viewpoint, not toeveryone except for a few prizewinners. The Court explainedthat the Student Activities Fund at the University of Virginia"is a forum more in a metaphysical than in a spatial or geo-graphic sense, but the same principles are applicable." Id. at2517. This is the concept which I have expressed perhapsmore crudely, as teaching us that a public forum can be cre-ated by money, not just real estate. Had the University of Vir-ginia set up a prize fund, for student groups which contributedthe most to the betterment of secular civic life in Charlottes-ville, the Christian student groups would have had no consti-tutional claim of discrimination had they lost. Had the NEAgrant program been structured to award grants to virtually allartists, then the plaintiffs in the case at bar would be entitledto prevail under Rosenberger. The majority uses principles forentitlement and regulation cases in a prize case. The princi-ples are by and large right, the application wrong.When the government gives a prize rather than an entitle-ment, it necessarily discriminates by content and viewpoint.Congress decided to foster the arts, but many Congressmenwere doubtless aware of artists' tendency since the romanticperiod to challenge the conventional. Thus Congress imposedseveral content and viewpoint criteria for arts grants. Theseinclude "artistic excellence," promoting cultural diversity, andreflecting the culture of inner cities, rural areas, and tribalcommunities.1 Congress thereby discriminated against non-(Text continued on page 14535)dence at an educational or cultural institution, or standards of professionalexcellence;(4) projects and productions which have substantial artistic and culturalsignificance and that reach, or reflect the culture of, a minority, inner city,rural, or tribal community;(5) projects and productions that will encourage public knowledge, edu-cation, understanding, and appreciation of the arts;(6) workshops that will encourage and develop the appreciation andenjoyment of the arts by our citizens;(7) programs for the arts at the local level;(8) programs that enhance managerial and organizational skills andcapacities;(9) projects, productions, and workshops of the kinds described in para-graphs (1) through (8) through film, radio, video, and similar media, forthe purposes of broadening public access to the arts; and,(10) other relevant projects, including surveys, research, planning, andpublications relating to the purposes of this subsection.. . . .(d) Application for payment; regulations and procedures. No pay-ment shall be made under this section except upon application thereforwhich is submitted to the National Endowment for the Arts in accordancewith the regulations and procedures established by the Chairperson. Inestablishing such regulations and procedures, the Chairperson shall ensurethat--(1) artistic excellence and artistic merit are the criteria by which applica-tions are judged, taking into consideration general standards of decencyand respect for the diverse beliefs and values of the American public; and(2) applications are consistent with the purpose of this section. Such reg-ulations and procedures shall clearly indicate that obscenity is withoutartistic merit, is not protected speech, and shall not be funded. Projects,productions, workshops, and programs that are determined to be obsceneare prohibited from receiving financial assistance under this Act from theNational Endowment for the Arts.The disapproval or approval of an application by the Chairperson shall notbe construed to mean, and shall not be considered as evidence that, theprojects, production, workshop, or program for which the applicantrequested financial assistance is or is not obscene.artistic expressions of opinion, artistic expression favoringcultural homogeneity, and art reflecting suburban culture.Norman Rockwell and Ansel Adams could reasonably com-plain, were they applying for grants, that the statute consti-tutes viewpoint discrimination against their artistic expres-sion.Of course the statutory criteria are vague. "Decency andrespect for the diverse beliefs and values of the Americanpeople" is vague. "Artistic excellence" and "artistic merit" arealso vague, and could not be proper criteria for censorship ordiscrimination in an entitlement program. The constitutionwould not allow the government to censor expression on theground that it was not art, or though art, was not excellent art.But this does not mean that the government cannot conditionprizes on the excellence of art.Philosophers have no way to distinguish art from non-art,or good art from bad art. There is not even a useful vocabu-lary for most of the distinctions we need to identify "artisticexcellence": In certain kinds of writing, particularly in art criti- cism and literary criticism, it is normal to come across long passages which are almost completely lacking in meaning. Words like romantic, plastic, values, human, dead, sentimental, natural, vitality, as used in art criticism, are strictly meaningless, in the sense that they not only do not point to any dis- coverable object, but are hardly ever expected to do so by the reader. When one critic writes, "The out- standing feature of Mr. X's work is its living quality," while another writes, "The immediately striking thing about Mr. X's works is its peculiar deadness," the reader accepts this as a simple differ- ence of opinion. If words like black and white were involved, instead of the jargon words dead and living, he would see at once that the language was being used in an improper way.George Orwell, Politics and the English Language, in A Col-lection of Essays 156, 161-162 (emphasis in original) (essaydated 1946).The most used art history text points out the vagueness ofthe entire NEA grant scheme: But if we must give up any hope of a trustworthy rat- ing scale for artistic quality, can we not at least expect to find a reliable, objective way to tell art from non-art? Unfortunately, even this rather more modest goal proves so difficult as to be almost beyond our powers.H. W. Janson, History of Art 9 (1962). It took a century anda half for most critics to agree that photography could be art.Some have not yet admitted jazz to the pantheon, many, rockand roll. Some disagree on whether Bernstein's West SideStory is art or mere entertainment, let alone excellent art. Ifthe constitutional law principle prohibiting vague laws relat-ing to speech applied to NEA grants, then we could no morelet the government give out grants for excellent art, than letit censor literary and artistic expressions which in the opinionof some customs agent or policeman (or art critic) were badart.The majority says that the vagueness of "artistic " and"excellence" are constitutionally permissible, unlike "de-cency" and "respect," because the people making the deci-sions are experts. Maj. op. at 14518-19, n.18. By that princi-ple, it would be permissible to let the government censorspeech with vague laws, so long as the censors were expertsin the field being censored. The argument is wrong, becausethe panel members' purported expertise does not give fairwarning to artists of what will get them grants and what willnot. Nor are the purported experts' choices sufficiently con-strained by "artistic" and "excellence" to prevent arbitrari-ness. Quite a few NEA grants have gone to activities whichmany experts would deem not excellent, or not art. There isno principled way to keep the arts grants but strike thedecency and respect clause. Either Congress can provide forarts grants with vague criteria, or it cannot provide for themat all.Artists seeking grants have no property right to them, andtheir liberty to express themselves as they choose is not regu-lated by the grants. Vagueness law has been developed underthe Fifth Amendment to protect people from the taking of lib-erty or property without fair notice of what they may not do,and without protection against arbitrary enforcement. SeeKolender v. Lawson, 461 U.S. 352, 357 (1983). First Amend-ment vagueness doctrine applies to government action relat-ing to speech if the government regulates speech or conditionsa generally available benefit upon the content of speech. SeeRust v. Sullivan, 500 U.S. 173, 200 (1991) ("conditionsattached to expenditures of Government funds"); Gentile v.State Bar of Nevada, 501 U.S. 1030, 1051 (1991) ("prohibi-tion against vague regulations of speech"). An artist applyingfor an NEA grant has no formula, and is not entitled to one,for the painting or performance which will produce a grant.None of the purposes of vagueness law apply to prizes.The majority construes the statute as though it prohibitedthe NEA from awarding grants to offensive or indecent art. Idoubt it would matter if the statute said that. Congress may befree to condition these scarce NEA grants on content. If Con-gress hired a sculptor to create a bust for the Capitol, it couldtell him to do a bust of Abraham Lincoln, and prohibit himfrom doing a bust of John Wilkes Booth. Or it could tell thesculptor to make busts only of people who had served in theSenate, or perhaps only of "great" Senators, despite thevagueness of that criterion. That much is clear under Rust.Just as Fulbright grants to foreign students may be condi-tioned on "directing their talents and initiative into channelswhich will make them more effective leaders," 22 U.S.C.S 2454(e)(3), prizes for only a few applicants, to which noone is entitled, may be conditioned on vague criteria designedto serve particular congressional objectives.Even if we were to suppose that a specific prohibition ofNEA grants based on content or viewpoint would be unconsti-tutional, the majority has found prohibitions in the statutewhich are not there. We should not read a statute as thoughit prohibited what it does not, and then hold it unconstitutionalfor the imaginary prohibition. The statute does not say thatartists must "tak[e] into consideration general standards ofdecency and respect for the diverse beliefs and values of theAmerican public." It says "the Chairperson " of the NationalEndowment of the Arts must use "artistic excellence" and"merit" as criteria, "taking into consideration," etc.The words "take into consideration" mean take into consid-eration, no more, no less. The word "consider " in its ordinaryusage means "to reflect on" or "think about with a degree ofcare or caution." See Webster's Third New International Dic-tionary 483 (1981). In deciding whether to buy a new car, onetakes into consideration the expense, but that does not meanone always decides against buying a new car. A requirementthat "due consideration and weight shall be given " to some-thing does not make the thing an absolute requirement. SeeHeirens v. Mizell, 729 F.2d 449, 460 (7th Cir. 1984) (paroleboard had to consider a prisoner's record but could decideagainst parole despite a good record). A court of appealsappoints a federal public defender "after considering recom-mendations from the district court." 18 U.S.C.S 3006A(g)(2)(A). That means that we must give serious thought to thedistrict court's recommendations, but we are not required tofollow them.Likewise, the NEA might think seriously about Ginsberg'sextensive use of vulgar language in Howl and Kaddish, anddecide against funding readings of his poems in junior highschools. But after considering the indecency and offensive-ness, the NEA could lawfully fund readings in colleges. Itmight likewise decide for or against funding showings ofartistically excellent but highly offensive works such as LeniRiefenstahl's Nazi propaganda movie, Triumph of the Will, orD.W. Griffith's artistically important movie Birth of a Nation,which glorified the Ku Klux Klan. If someone on an advisorypanel said "I don't think we can consider the indecency ordisrespect for American values of the art - we should fund thegrants because the presentations will be of excellent art, andthat is all we should consider," another panel member couldpersuasively reply, "we can and must consider decency andrespect - Congress said we should." That is what the"decency and respect" language means, and that is all itmeans. Chairman Frohnmayer and the members of NEAgrants panels probably would have figured out that they livedin a "political world," see maj. op. at p. 14511, n. 7, and thatthe NEA budget might be affected by what it did with themoney, even if Congress had not given them the decency andrespect criterion.By contrast with the "take into consideration " language,Congress said that obscenity "shall not be funded." 20 U.S.C.S 954(d)(2). That language, unlike "taking into considera-tion," prohibits funding. The language we now hold unconsti-tutional tells the Council and panels to think seriously about"general standards of decency and respect for the diversebeliefs of the American public" when they give away the pub-lic's money.The artists in the program before us are not affected by thestatutory grant criterion in their use of indecency or disrespectin their art done independently of their NEA grants. If theNEA were restricted from giving grants to artists who, outsidethe grants, had ever done indecent or offensive work, the con-siderations would be different, possibly leading to a differentresult. Cf. Federal Communications Commission v. League ofWomen Voters, 468 U.S. 364, 399 -400 (1984) (acceptance ofthe government's money unconstitutionally required therecipient to conform to government speech requirements out-side the time paid for by the government). The governmentcannot use its power to condition subsidies as a means ofenforcing orthodoxy in areas traditionally open to the publicfor expressive activity. Rust, 111 S.Ct. at 1776; Regan, 461U.S. at 548.A prize for some art naturally encourages other artists to tryto produce art of the sort which they think will get them theprize, including conformity to the content and viewpoint pref-erences of those who award the prizes. The members of thegrant committees will probably balance their personal tastesagainst what they fear might lead Congress to cut NEA fund-ing. If government selects a few artists and gives them money,it will unavoidably influence the work of many more: I can seldom do positive good to another person without limiting him. I can, it is true, simply give him money, but even in this extreme case, where I seem to place no bonds on him, he inevitably faces the question of what conduct on his part will lead me to give money to him again.George J. Stigler, The Intellectual and the Market Place 95(1963). This is a problem of governmental involvement inwhat used to be a private activity, not a problem of censor-ship. The United States government has so much money andpower that its slightest intervention to do good has the unfor-tunate effect of changing the entire context in which peopleact. But unless we are to blind ourselves to the distinctionbetween a relatively few arts prizes, and socializing the artindustry, we cannot treat the incentive afforded by a prize asthe equivalent of censorship.The artists who brought this lawsuit may have difficulty(the record does not say) attracting enough patrons to supporttheir art. Finley alleges in her complaint that she is a"performance artist whose performances address such issuesas the sexual stereotyping and objectification of women, rapeand other forms of violence against women, and the power-lessness and victimization of women and others in oursociety." Fleck alleges that his performances "openly chal-lenge traditional notions of gender and sexuality " and"address AIDS, birth, death, religion, consumption in a capi-talist society, and the environment." Hughes alleges that herwork "addresses issues of women's power in society andwomen's sexuality, including lesbian relationships. " Milleralleges that his "often autobiographical work addresses therelation between the individual and society, and particularlyconcerns social activism on issues affecting gay people,including AIDS." These works may lack the mass market ofart appealing to more broadly shared sentiments.There is no constitutional principle, however, whichrequires the government to replace the market and pump upthe incomes of less popular artists. Government support of thearts is a policy choice, and perhaps a good one, but it is notconstitutionally compelled. Lack of market appeal is an obsta-cle "not of [the government's] own creation." Regan v. Taxa-tion with Representation Wash., 461 U.S. 540, 549 -50 (1983).So long as the artists are free to perform, people are free topatronize their performances, and the artists are not deprivedof government money to which artists generally are entitled,the artists' freedom of expression is not abridged by contentor viewpoint discrimination in the grant process.The only practical guarantee of artistic freedom is privatemoney. The leadership of individuals or groups who can back their beliefs financially is particularly essential in the field of cultural amenities, [and] in the fine arts . . . . If minority views are to have a chance to become majority views, it is necessary not only that men who are already highly esteemed by the major- ity should be able to initiate action but that represen- tatives of all divergent views and tastes should be in a position to support with their means and their energy ideals which are not yet shared by the major- ity.Friedrich A. Hayek, The Constitution of Liberty 125 (1960,1978). With diverse sources of private money, majority pref-erences need not affect an artist's freedom or fortune, becauseonly one or a few patrons or purchasers may suffice.First Amendment law protects individual liberty from gov-ernment, not the government from the people. The error intoday's decision comes from forgetting what the First Amend-ment is for. The NEA "decency and respect" criterion con-trols, not artists, but rather a government department, theNEA. By treating legislative control over a part of govern-ment as though it were an attempt to control artists' expres-sion, we confound the distinction between popular control ofgovernment, and government control of individuals. Majori-ties do not have the right to control free expression by indi-viduals. They most certainly do have the right to control theirgovernment. Today's decision does not protect artists fromgovernment. It protects the government from control by theelected representatives of the people. the end

________________________FOOTNOTES
1. We do not address the district court's ruling in favor of plaintiffs ontheir claim that the Chairperson violated the NEA's governing statute byobtaining the advice of the National Council on the Arts through a tele-phone poll before acting on plaintiffs' applications. The parties have set-tled this issue.We also do not reach plaintiffs' claim that the statute imposes an uncon-stitutional condition in violation of F.C.C. v. League of Women Voters, 468 U.S. 364 (1984). The district court denied summary judgment on theground that there were disputed issues of fact bearing on the claim, andthis denial of summary judgment is not appealable. Because the issue isnot properly before us, we do not address the dissent's suggestion thatLeague 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. SS 954(b)(1),955(b).
3. 20 U.S.C. S 954(d), as amended in 1990, reads as follows: No payment shall be made under this section except upon appli- cation 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 val- ues of the American public . . . .(added language emphasized).
4. Although the dissent argues the applicants have no property right inNEA grants and their liberty to express themselves is not regulated by thegrants, the right to engage in free speech is a liberty interest protected bydue process. See, e.g., Procunier v. Martinez, 416 U.S. 396, 418 (1974),overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401 (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 beenheld to protect."). Art is one of many protected forms of speech. See Mil-ler v. California, 413 U.S. 15, 34 (1973). While the artists do not have aproperty right in the grants, they are protected by the due process clausefrom 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 (1972) (citation omitted).The First Amendment, moreover, is an independent source of vaguenessdoctrine. See N.A.A.C.P. v. Button, 371 U.S. 415, 432 -33 (1963); Kreimerv. Bureau of Police, 958 F.2d 1242, 1266 (3d Cir. 1992) (explaining that"courts have transplanted this due process principle into the First Amend-ment setting"). Thus, we routinely consider whether speech-related stat-utes are impermissibly vague without specifying the liberty or propertyinterest 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 inboth the Fifth and First Amendments.In addition, we disagree with the dissent's suggestion that First Amend-ment vagueness doctrine only applies if the government regulates speechor places conditions on a generally available benefit. As the Court notedin Rosenberger, the scarcity of a government benefit does not render itimmune from constitutional limitations. See Rosenberger v. Rector & Visi-tors of the Univ. of Virginia, 115 S. Ct. 2510, 2519-20 (1995).
5. NEA contends that on review of a facial challenge, plaintiffs may pre-vail only if "there are no constitutional ways that the statute can be imple-mented." This standard applies only if the statute "implicates no constitu-tionally protected conduct." Village of Hoffman Estates v. Flipside, Hoff-man Estates, Inc., 455 U.S. 489, 494 -95 (1982); United States v. Wunsch(In re Swan), 84 F.3d 1110, 1119 (9th Cir. 1996). When a law implicatesfree speech, a "more stringent vagueness test " should apply. Hoffman, 455U.S. at 499; see also Wunsch, 84 F.3d at 1119.
6. The statute requires the Chairperson to: "issue regulations and establishprocedures . . . to ensure that all panels are composed, to the extent practi-cable, of individuals reflecting a wide geographic, ethnic, and minorityrepresentation as well as individuals reflecting diverse artistic and culturalpoints of view . . . ." 20 U.S.C. S 959(c).
7. The dissent suggests this provision merely requires the NEA to thinkabout standards of decency and respect rather than to act according towhat thoughts of "decency and respect" might dictate. This suggestion isimplausible on its face and belied by the record. During the period inwhich the plaintiffs' applications were being considered, ChairpersonFrohnmayer 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 S 954(d)(1) does not renderthe "decency and respect" provision redundant because under NEA'sinterpretation the Chairman was not compelled to make any change in thestandard at all, necessarily fails with our rejection of NEA's interpretationof S 954(d)(1).
10. Mapplethorpe's and Serrano's works were also referred to duringdebates on NEA's budget. See, e.g., 135 Cong. Rec. H3637, H3640 (July12, 1989).
11. 20 U.S.C. S 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 pro- grams 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 section954(d)(2) redundant because the latter applies only to material"determined to be obscene" by a court. This argument does not affect theother reasons stated in the text for the invalidity of the hypothetical regula-tion.
12. See 136 Cong. Rec. H9457 (Oct. 11, 1990) (Statement of Rep. Henry)("[The decency and respect provision] is much broader than all theobscenity language which we have been debating about. . . . [G]iven theMiller versus California standard, anything that has artistic merit is not bylegal definition obscene. So, how can we seek to address the problem thatwe heard from our constituents? We put general decency requirementsinto the act.").
13. "The term `determined to be obscene' means determined, in a finaljudgment of a court of record and of competent jurisdiction in the UnitedStates, to be obscene." 20 U.S.C. S 952(j). See 136 Cong. Rec. H9676(Oct. 15, 1990) (statement of Rep. Weiss) ("Is not one of the problemsalso that whereas the Williams/Coleman [amendment ] provides for theobscenity determination to be made by the courts, in the Regula amend-ment the determination would have to be made by NEA and that in itselfwould be unconstitutional, an abrogation of first amendment rights."); 136Cong. Rec. H9411 (Oct. 11, 1990) (statement of Rep. Richardson) ("Thelegislation that we have in front of us says very clearly that the NEA maynot fund obscenity and the determination of obscenity is left to the courtsnot politicians, not bureaucrats. But the courts, among juries of averagepeople.").
14. The NEA refers to a 1989 statute that prohibits any person fromknowingly using the telephone to make "any indecent communication forcommercial purposes which is available to any person under 18 years ofage or to any other person without that person's consent . . . ." 47 U.S.C.S 223(b)(2)(A). The FCC defined "indecent communication" as "thedescription or depiction of sexual or excretory activities or organs in apatently offensive manner as measured by contemporary standards for thetelephone medium." Information Providers' Coalition v. F.C.C., 928 F.2d866, 874 (9th Cir. 1991) (holding regulation is not unconstitutionallyvague).
15. When Congress enacted the "decency and respect" provision, itrejected a rival amendment, the Regula amendment. The Regula amend-ment would have required the NEA to judge grant applications accordingto the decency standard articulated in F.C.C. v. Pacifica Found., 438 U.S.726, 731-32 (1978) -- the same standard adopted by the FCC in the "dial-a-porn" context. See Information Providers' Coalition, 928 F.2d at 874(noting that the FCC's definition of "indecent communication" was liftedfrom 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 theSupreme Court to protect children listening to the radio, and he is applyingit to everyone, including adults, by his amendment. . . . Coming out overthe 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(1991) and Regan v. Taxation with Representation, 461 U.S. 540 (1983).Neither case involved a vagueness challenge. Moreover, in Bullfrog Filmswe held a duty exemption void for vagueness while recognizing the gen-eral principles announced in Regan. And, as we discuss more fully in PartII, Rust is of limited applicability in light of the reasoning of Rosenbergerv. Rector & Visitors of the Univ. of Virginia, 115 S. Ct. 2510 (1995), dif-ferentiating government programs that encourage private speech fromgovernment programs that use private speakers "to transmit specific infor-mation pertaining to [government] program[s]." Id. at 2519. The NEA isa quintessential example of a government program designed to encourageprivate speech, rather than one that seeks to use private individuals for aparticular government purpose, such as the dissent's example of commis-sioning 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 impermissibly vague without also holding unconstitu-tional the statute's provision that "artistic excellence and artistic merit arethe criteria by which applications are judged." 20 U.S.C. S 954(d)(1). Theshort answer is that appellants have challenged only the "decency" and"respect" criteria, and therefore only these criteria are before us. Theapplication of the "void for vagueness" doctrine to the criteria of "artisticexcellence and artistic merit" may present quite different considerations.One obvious difference may be the extent to which the two sets ofcriteria implicate the policy concerns underlying the "void for vagueness"doctrine. See generally Bullfrog Films, 847 F.2d at 512 (vague laws areobjectionable because they "trap the innocent by not providing fairwarning," invite arbitrary and discriminatory enforcement, and discouragethe exercise of constitutional rights). A second difference that may affectthe outcome is the context in which the criteria are applied and the charac-teristics of the decision makers. Funding applications are reviewed byadvisory panels composed of artists and "lay individuals who are knowl-edgeable about the arts." 20 U.S.C. S 959(c)(2). Recommendations of theadvisory panels are reviewed by the National Council of the Arts, whichis composed of persons to be selected "from among the private citizens ofthe United States who (A) are widely recognized for their broad knowl-edge 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. S 955(b).Such decision makers possess an expertise in determining "artisticexcellence and artistic merit" that will guide their application of thesecriteria; they have no corresponding expertise in applying such free-floating concepts as "decency" and "respect." As then-NEA ChairpersonFrank Hodsoll testified, "I don't see any way for a Federal panel . . .expert in the arts, not expert in community standards . . . to make determi-nations for the entire Nation as to what is acceptable or what is not goingto be patently offensive." Reauthorization of Foundation on the Arts andthe Humanities Act of 1965, Joint Hearings Before the Subcomm. onSelect Education & the Subcomm. on Post-secondary Education of theComm. on Education and Labor, 99th Cong., 1st Sess. 552 (1985).
19. Art is protected by the First Amendment. As the Supreme Court notedin Miller v. California, "[t]he First Amendment protects works which,taken as a whole, have serious literary, artistic, political, or scientificvalue." 413 U.S. at 34.
20. NEA contends the district court erred by extending Rust to the artsfunding context, arguing the Rust exceptions are limited to "specialplaces" and "special relationships." This argument is foreclosed byRosenberger, which took a much broader view of the First Amendment'sapplicability to subsidized speech. See Rosenberger, 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 Commu-nity College Dist. 515, 759 F.2d 625 (7th Cir. 1985). Both cases are distin-guishable. Moreover, both were decided before Rosenberger, and to theextent they conflict with this most recent teaching on viewpoint discrimi-nation, are not persuasive.
22. On similar grounds, NEA urges us not to reach plaintiffs' FirstAmendment claims. However, we disagree with NEA's assertion that thedistrict court's First Amendment decision was "obviously premature"because it rested on assumptions about how the Chairperson would imple-ment S 954(d)(1)'s "decency and respect " provision. Under the interpreta-tion originally proposed by NEA, the statute was implemented when theChairperson, taking "decency and respect" into consideration, decided nochanges in the application process were needed. We rejected this interpre-tation in Part I(A), supra, and NEA now argues we should avoid the FirstAmendment issues because "there is no way to predict what the Chairper-son's new manner of implementing the statute would be." Plaintiffs bringa facial challenge, however. Although NEA is entitled to promulgate regu-lations interpreting the statute, we are not obligated to withhold judgmentwhile the agency does so.
23. Amici suggest Congress may have wished to avoid requiring taxpay-ers to fund work they found offensive. However, neither protecting peoplefrom offensive and indecent speech nor protecting the taxpayer fromunwanted expenditures is a compelling interest sufficient to justifycontent-based restrictions on speech. See F.C.C. v. Pacifica Found., 438U.S. 726, 745 (1978) ("[T]he fact that society may find speech offensiveis not a sufficient reason for suppressing it."); Sable, 492 U.S. at 126 (FirstAmendment protects speech that is "indecent but not obscene"); F.C.C. v.League of Women Voters, 468 U.S. 364, 385 n.16 (1984) (taxpayers'opposition to expenditure of government funds cannot "be invoked to jus-tify a congressional decision to suppress speech").
24. The district court concludedS 954(d)(1) was unconstitutionally over-broad because it was a content-based restriction that "swe[pt] within itsambit speech and artistic expression which is protected by the FirstAmendment." Finley, 795 F. Supp. at 1476. Although we frame our dis-cussion in terms of strict scrutiny, we agree with the district court's con-clusion.1 (c) Program of contracts, grants-in-aid, or loans to groups andindividuals for projects and productions; traditionally underrepre-sented recipients of financial assistance. The Chairperson, with adviceof the National Council on the Arts, is authorized to establish and carryout a program of contracts with, or grants-in-aid or loans to, groups or, inappropriate cases, individuals of exceptional talent engaged in or con-cerned with the arts, for the purpose of enabling them to provide or sup-port --(1) projects and productions which have substantial national or interna-tional artistic and cultural significance, giving emphasis to American cre-ativity and cultural diversity and to the maintenance and encouragementof professional excellence;(2) projects [and] productions, meeting professional standards or stan-dards of authenticity or tradition, irrespective of origin, which are of sig-nificant merit and which, without such assistance, would otherwise beunavailable to our citizens for geographical or economic reasons;(3) projects [and] productions that will encourage and assist artists andenable them to achieve wider distribution of their works, to work in resi-20 U.S.C. S 954(d) (emphasis added). The 1990 amendment added theemphasized language to 20 U.S.C. S 954(d).