Freedom of Expression

at the National Endowment for the Arts

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Fordyce v. Frohnmayer (excerpts)
763 F.Supp. 654 (D.D.C. 1991)

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Plaintiffs, David Fordyce and Yvonne Knickerbocker, citizens and taxpayers of Los Angeles County, initiated this action against defendants National Endowment for the Arts ("NEA"), an independent agency created by Congress under the National Foundation on the Arts and the Humanities Act of 1965, and John Frohnmayer, at all times relevant to the instant action Chairperson of the NEA, alleging that the NEA's partial sponsorship of an art exhibition entitled "Tongues of Flame" violates the establishment clause of the first amendment. Defendants have subsequently moved to dismiss the complaint, contending that plaintiffs lack standing to pursue their claims. For the following reasons, defendants' motion is granted.


According to plaintiffs' first amended complaint ("Complaint"), on or about November 14, 1988, the Director of the University Galleries of Illinois State University (the "Galleries"), Barry Blinderman, applied to the NEA for a grant of $23,300 to fund the creation of "Tongues of Flame." Although the NEA initially decided not to fund the project, on May 30, 1989, it issued a preliminary recommendation awarding a grant in the amount of $15,000 to the Galleries to fund, in part, a catalogue entitled "David Wojnarowicz: Tongues of Flame" ("Catalogue") and the exhibit. In the Acknowledgments section of the Catalogue, Blinderman confirms, "The notification of our receipt of a very generous grant from the National Endowment for the Arts last spring gave us the impetus to plan a comprehensive exhibition and catalogue. My sincerest thanks go to the panelists who recommended the award - for their insight and courage in supporting controversial artwork."

The Wojnarowicz exhibition was on display on January, February, and March of 1990 at the Galleries and was on display at the Santa Monica Museum of Art from July 25, 1990 through September 5, 1990. According to plaintiffs, "[a] central and recurring theme throughout the Tongues of Flame Catalogue . . . is its sacrilegious, defamatory, and scurrilous depictions of the persons of Jesus Christ." As an example, plaintiffs point to an image in which Christ is shown "mainlining" heroin by injecting a hypodermic needle into his arm.

Plaintiffs hold to a form of doctrine that espouses the deity of Jesus Christ and regards Christ as the object and center of all religious devotion. They view the public display of the exhibition as an affront to their liberty to practice religion free from governmental entanglement and politically divisive governmental intrusion into the affairs of religion. Plaintiffs further contend that the images convey a message that plaintiffs, as nonadherents to the anti-religious art, are outsiders and not full members of the political community, in contravention of the establishment clause.


In viewing a motion to dismiss, "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." . . .The factual allegations of the complaint must be presumed true and liberally construed in favor of plaintiff. . . . The plaintiff is entitled to all favorable inferences which may be drawn from those allegations. . . .

Plaintiffs assert standing as both citizens and taxpayers. A plaintiff, suing as a citizen, must allege as a basis for his or her standing to sue: (1) an injury in fact; (2) caused by, or traceable to, the challenged action; (3) which injury is likely to be redressed by a favorable judicial decision. . . .The injury in fact required for standing must be immediate, objective, and concrete, rather than speculative or abstract. . . . Moreover, the Supreme Court has specifically noted that merely asserting spiritual injury under the establishment clause is insufficient to support standing to sue as a citizen. . . .

In their Complaint, plaintiffs claim only that they have suffered a spiritual injury and that the exhibition caused offense to their religious sensibilities. Plaintiffs do not, however, allege that they had to confront the exhibition daily, that the exhibition was visible in the course of their normal routine, or that their usual driving or walking routes took them through or past the exhibition. . . . In fact, plaintiffs do not even allege that they have either seen the exhibition or studied the catalogue. . . . [P]laintiffs have failed to show that they have endured any special burdens that justify their standing to sue as citizens.
Plaintiffs also assert that they have standing to pursue this action under a narrow "exception" to the general rule that "taxpayers do not have standing to challenge how the federal government spends tax revenue.". . . Again, plaintiffs' argument is unavailing.

In Flast v. Cohen, 392 U.S. 83, 101-06 (1968), the Supreme Court determined that taxpayers may have standing to attack congressional actions taken pursuant to Congress' taxing and spending power under Article I, Section 8 of the Constitution. Flast, however, is a limited holding. Flast and its progeny countenance taxpayer challenges to executive branch action where "Congress . . . decided how the . . . funds were to be spent, and the executive branch, in administering the statute, was merely carrying out Congress' scheme." . . . Consequently, the Supreme Court rejected the argument for taxpayer standing in [another decision] where the nexus between the taxpayer and the congressional action was substantially attenuated. As the court there explained, "Unlike the plaintiffs in Flast . . . the source of their complaint is not a congressional action, but a decision by HEW to transfer a parcel of federal property." . . .

In the instant action, the crux of plaintiffs' complaint lies with the NEA. Although plaintiffs claim in their opposition that they are attacking Congress' exercise of its taxing and spending power under Article I, Section 8 of the Constitution, they cannot contend that there was any congressional involvement in the decision to provide partial funding to the exhibition, that Congress participates in the decision to grant or deny applications for federal funding, or that the NEA merely administers a congressional directive. Rather, Congress authorized the chairperson of the NEA and the NEA to establish and administer a program of contracts, grants-in-aid, and loans with groups or individuals of exceptional talent concerned with the arts; to make the necessary artistic judgments for the grants; and to determine the level of funding for grantees. See 20 U.S.C. Sections 924(b), 954(c). Here, plaintiffs are challenging a decision made solely by an agency of the executive branch. As their complaint unequivocally states, "This is an action against an agency of the federal government for its violation of the Establishment Clause . . . . specifically, the defendants, by authorizing the expenditure of federal funds for the creation and exhibition of a work entitled "tongues of flame" . . . have unconstitutionally sponsored and endorsed a religion. . . ." Because the nexus between plaintiffs' allegations and Congress' exercise of its taxing and spending power is so attenuated, plaintiffs cannot assert standing based on their status as taxpayers.


For the reasons expressed above, it is hereby ORDERED that defendants' motion to dismiss is granted. IT IS SO ORDERED.

[Notes omitted]

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