Judge Agrees With Artists that NEA Funding Policy is Likely Unlawful But Says Too Soon to Intervene

A federal judge chose not to stop the National Endowment for the Arts (NEA) from examining how or if it will institute President Donald Trump’s January executive order forbidding federal subsidizing of “gender ideology” when it comes to awarding grants.

But Senior District Judge William E. Smith agreed with the arts organizations suing the federal government on several points, including that the NEA will likely violate the First Amendment if it goes through with broad, ideological restrictions on the projects it funds. Still, he said it was too early to intervene as the agency plans to announce how or if it will follow the order on April 30.

“This is the rare case where the balance of the harms and equities plus the public interest caution against the extraordinary relief requested,” Smith wrote in his 47-page decision released Thursday night.

The four groups that brought suit — Rhode Island Latino Arts, The Theater Offensive, National Queer Theater, and Theatre Communications Group — all intended to apply for grants for LGBTQ+ projects. The plaintiffs were represented by the National American Civil Liberties Union (ACLU) and the ACLU of Rhode Island in the case filed in the U.S. District Court for the District of Rhode Island.

“The opinion makes clear that the NEA cannot lawfully reimpose its viewpoint-based eligibility bar,” Vera Eidelman, an ACLU senior staff attorney, said in a statement Thursday. “Though it falls short of the relief we were seeking, we are hopeful that artists of all views and backgrounds will remain eligible for the support and recognition they deserve.”

The plaintiffs sought to stop the NEA from applying Executive Order 14168 to its grantmaking procedures. In early March, the NEA had initially implemented the order by requiring grant applicants to check a box confirming that their work did not promote gender ideology — an impossibility, the plaintiffs argued, given their organizations’ showcasing of LGBTQ+ narratives and performers. There was also the possibility that LGBTQ+ content might fail to meet eligibility criteria under the new laws and be barred categorically.

But the NEA quickly removed the allegiance checkbox, and by March 17 had issued a memo stating it would cease the rollout of the order for the time being. It also extended the application deadline for the current grant cycle. The agency expects to complete its internal review of the order by April 16 ahead of its public April 30 announcement.

That doesn’t help plaintiffs, who needed to apply for the grant cycle’s new deadline of Monday, April 7, to keep their production timelines intact.

“The court’s decision will leave our clients in a state of censorial limbo,” Steven Brown, executive director of the ACLU of Rhode Island, said in a statement Thursday.

Emilya Cachapero, co-executive director of national and global programming at Theatre Communications Group, was “disappointed” by the decision, she said in a statement, and pointed to wider implications: “This moment is about more than a single grant cycle — it’s about the future of artistic freedom in this country.”

According to court documents, Rhode Island Latino Arts and Theatre Communications Group testified that they were considering axing LGBTQ+ themes from upcoming productions to better secure grant funding — effectively self-censoring to avoid the executive order’s mandates.

“We shouldn’t need to negotiate for the right to support and uplift all artists — including transgender and nonbinary artists,” Marta V. Martinez, executive director of Rhode Island Latino Arts, said in a statement. “This order fails to bring us the clarity we need to apply for funds for projects that allow Latinx artists, especially those who are queer, trans, or nonbinary, to show up as their whole selves without fear of erasure or censorship.”

In his ruling, Smith wrote that maneuvering to stop the NEA during its administrative process meant that granting relief would be premature — and it would not soothe much for the plaintiffs, as they no longer “faced a potential harm of civil, criminal, or administrative penalties for making false statements” since the compliance pledge has been removed from the application.

Alexander Castro/Rhode Island Current

“If the Court enjoins the NEA from imposing an eligibility bar at this juncture, it will in effect short circuit the ongoing administrative review process set to conclude in a matter of days,” Smith wrote.

That would not be ideal, the judge thought, as it “would rob the NEA of the opportunity to make its own considered decision.” The agency may conclude that the executive order is incompatible with the statute that authorizes its existence and duties and may need congressional approval to take effect within the NEA.

“For the Court to intercede and mandate this outcome would raise obvious separation-of-powers concerns,” Smith wrote.

“Once the NEA completes its process, Plaintiffs may well return to the Court for relief — or, if the NEA declines to adopt the EO in any way, they may drop the curtain on this action altogether,” the judge concluded in his ruling.

Plaintiff Giselle Byrd, executive director of The Theater Offensive, said in a statement she was ready to wait for the NEA’s decision — and return to court if necessary: “Time is our greatest ally. … If this executive order is reimposed, we will be back in court and fighting against the unlawful attack on the First Amendment. We do not walk away silently against injustice and silence will not protect us.”

Smith’s refusal of the plaintiffs’ request was not exactly a siding with the federal defendants — something his thorough decision makes clear, with arguments from the March 27 motion hearing explored in detail by the judge.

The attorneys had sparred over whether NEA-funded projects constitute private speech — which is guarded by the First Amendment — or government speech, which lacks such protections. Smith conceded that the law is dense and nuanced in cases that define what speech is or isn’t. But he agreed with the ACLU that the NEA subsidizes private works, and is not a vehicle for official sentiments.

“It seems clear that the NEA’s grantmaking process was designed to facilitate private speech, and not to promote a governmental message,” he wrote. “NEA-funded art is therefore protected under the First Amendment; and where, as here, the government has imposed a viewpoint-based condition on the receipt of those funds, there is a clear First Amendment violation.”

But Smith did agree with the U.S. Department of Justice’s argument that NEA grants are competitive.

“Plaintiffs must make choices that hopeful grant applicants make all the time about what to propose in their application, to enhance their chances of success. The Court cannot make the process free of difficult choices,” Smith wrote.

The NEA also eschewed the Administrative Procedure Act (APA), Smith agreed with the ACLU, when they initially adopted the executive order and created extra eligibility requirements for applicants. But he disagreed that the NEA was “arbitrary and capricious” in its carrying out of the order, as the ACLU had argued.

The eligibility bar, Smith argued, is not problematic because of vagueness — it is problematic because it actively encourages the NEA to discriminate against certain kinds of applicants.

“If anything, the eligibility bar severely narrows the discretion of NEA personnel in deciding which projects to approve, and that is precisely why it likely violates both the APA and the First Amendment,” Smith wrote.

This story was originally published by the Rhode Island Current.