Attorney Vera Eidelman rushed to the defense of her clients when she took the stand Thursday morning in a Providence federal courtroom, speaking swiftly as to why national arts funding remains imperiled under President Donald Trump’s administration.
“You’re going very fast,” U.S. District Court for the District of Rhode Island Senior District Judge William E. Smith told Eidelman, a senior staff attorney with the American Civil Liberties Union (ACLU). “Maybe just slow down a little bit for the court reporter.”
The court reporter smiled and nodded as Eidelman slowed and continued her defense of four performance arts organizations: Rhode Island Latino Arts, The Theater Offensive, National Queer Theater, and Theatre Communications Group. The court case, first filed on March 6, is another shockwave running from President Donald Trump’s Jan. 20 executive order aiming to root out federal support and funding that “promotes gender ideology.”
But time is short: The plaintiffs are seeking an injunction to stop the adoption of the executive order at the National Endowment for the Arts (NEA) ahead of the agency’s April 7 grant application deadline — grants on which the organizations rely to put on their performances, many of which involve LGBTQ+ performers and storylines.
“This is clearly about funding private speech,” Eidelman argued before the judge, underlining that the NEA decision would violate First and Fifth Amendment rights. One plaintiff, Rhode Island Latino Arts, has already started to self-censor a planned storytelling program, by considering removing LGBTQ+ elements to accommodate possible changes in federal policy, according to a court document by Marta V. Martínez, the organization’s executive director.
Arguing the case alongside Eidelman was Scarlet Kim, also a senior staff attorney at the ACLU, who detailed how the NEA would violate the Administrative Procedures Act as well as the basic statutory underpinnings of the NEA.
A March 25 filing from the ACLU attorneys suggests the judge should not limit relief to the plaintiffs, as the NEA funding issue is nationwide. Smith said he plans to deliver his ruling on April 3, or the morning of April 4 at the latest.
The roughly two-hour hearing Thursday invoked an artistry different from the sort practiced by the plaintiffs, with attorneys on both sides of the case engaged in a technical blow-for-blow that tried to determine what could be litigated. That’s because the Department of Justice’s arguments relayed through its lone attorney Kevin M. Bolan, who has worked in the civil division of the district attorney’s office since 2023, disputed that there was even anything to dispute.
“This whole case arises and centers on an agency action that no longer exists,” Bolan said in court.
Since the lawsuit’s March 6 filing, the NEA has removed the cornerstones of the plaintiffs’ complaints. First, on March 7, the agency removed a checkbox for grant applications which would have required grant applicants to affirm that their work does not promote gender ideology. Second, on March 17, NEA Senior Advisor Mary Anne Carter issued a memo to agency staff that proclaimed, “Any prior statements the NEA has made concerning any provisions of the EO that apply to its grantmaking are null and void.”
But the notion that the NEA had undone or prevented any possible damage proved unpopular with Smith. “You’ve made that point there,” Smith told Bolan. “I think it’s inconsistent with the law.”
Bolan offered that litigation is preventing the NEA from figuring out how or if to implement the executive order. The court, he said, should “allow the process to continue.”
“They’re uncertainties because your client has made them uncertainties,” Smith said of the confusion surrounding the executive order on the agency side.
“I’m the agency’s lawyer,” said Bolan at one point. “I’m not someone at the agency making decisions.”
Legal bait and switch?
Hotly discussed was the idea of voluntary cessation, or when a defendant stops doing something — usually something that prompted litigation — but without any promise the misbehavior will not resume in the future. The ACLU cited FBI vs. Fikre, a 2024 Supreme Court case in which the justices unanimously ruled that when a man sued the FBI for being on the no-fly list, being removed from the list did not render the litigation useless.
Associate Justice Neil Gorsuch wrote in the majority opinion, “A live case or controversy cannot be so easily disguised, and a federal court’s constitutional authority cannot be so readily manipulated.”
In his opening remarks, Bolan argued that the recent recessions by the NEA did not live up to the cessation claims, because the orders had been rescinded.
“Well, you’re going up against Justice Gorsuch on that,” Smith said, cutting off Bolan. “Tell me why Gorsuch got it wrong.”
Bolan replied that cessation involves “manipulation” to “evade judgment.”
“Well, that kind of looks exactly like what’s going on here, no?” Smith said.
Voluntary cessation has come into play with a number of Trump-related lawsuits, as blue state attorneys have rallied to prevent substantial funding changes from taking place at the federal level.
“One of those cases is in this district,” Kim said, referring to a national lawsuit filed in Rhode Island against the Office of Management and Budget and presided over by Chief Judge John J. McConnell Jr.
“Yes, we’re very familiar with it,” Smith replied.
What’s the harm?
The ACLU attorneys relied on the cessation aspect to argue as if the original policy changes had never been rescinded. First, the NEA funds private speech, Eidelman argued, and its underlying statutes are designed with the intent to prevent the agency from becoming “a propaganda machine.”
“Congress took numerous steps to insulate the agency from political pressures,” Kim said in her turn at the stand. “The agency has now explicitly done what Congress forbade it from doing.”
The federal government’s interpretation of the law was completely opposite, with Bolan arguing that works the agency funds are government speech.
“This is a very different form of subsidy. It’s not something that is widely available,” Bolan said, outlining NEA grants as competitive
Organizations could also apply during a grant cycle later in the year, Bolan thought. “If they have to wait a few months, the show will go on,” he said. “There is no irreparable harm.”
“As soon as the speech is being squelched, isn’t that the harm?” Smith asked.
Eidelman’s rebuttal: “To borrow the opposing counsel’s phrase, the show actually won’t go on.” She noted arts organizations need reliably timed grant cycles to fund their production.
Congress took numerous steps to insulate the agency from political pressures. The agency has now explicitly done what Congress forbade it from doing.
Outside the courthouse, Kim was mostly optimistic about the case. “I think the court seemed amenable to our arguments that the prohibition could simply spring back at any time and that our clients need relief,” she said.
The demands of the litigation on an artist’s time were not lost on Jess Ducey, who co-chairs the National Queer Theater’s board of directors. Yes, Ducey said, the grant process is already “notoriously complex.” Resisting the executive order and “defending the integrity of our work, defending our identities” has sapped even more time away from planning and casting shows, they said.
“But it feels good to be doing this in community and in solidarity with other organizations,” Ducey said. “To be doing this together with other groups, I think is important to show the government the NEA that we’re here. We’re making art. We won’t be silenced.”
The NEA grants are important, Ducey said because they can exponentially broaden an artist’s audience. “That endorsement is incredibly valuable for an artist, and when you look at any artist’s career, that’s a huge jumping point,” Ducey said.
In the courtroom, Bolan argued that the artwork’s prestige comes from the government subsidy.
Ducey agreed that NEA grants do indeed confer legitimacy, and recognition of merit from a respected agency like the NEA means a lot to artists. But the merit still comes from the art itself, from what artists are already making — and from audiences who go see live performances, Ducey said.
“With or without NEA funding, audiences are the most important part,” Ducey said. “So you, as an individual civilian, go to your theater…Show up to opening night, cheer for them, and show your communities and your government that art’s important.”
This story was originally published by the Rhode Island Current.
