620
Souter, J., dissenting
seeking to create art that celebrates a minority, tribal, rural, or inner-city culture. But even so, this is certainly a case in which the challenged statute "reaches a substantial number of impermissible applications," not one in which the statute's "legitimate reach dwarfs its arguably impermissible applications." Id., at 771, 773. On the contrary, nothing in the record suggests that the grant scheme administered under the broad authorization of the NEA's governing statute, see §§ 951, 954(c), devotes an overwhelming proportion of its resources to schools and ethnic commemoration. Since the decency and respect criteria may not be employed in the very many instances in which the art seeking a subsidy is neither aimed at children nor meant to celebrate a particular culture, the statute is facially overbroad. Cf. City of Lakewood, supra, at 766 ("[I]n a host of . . . First Amendment cases we have . . . considered on the merits facial challenges to statutes or policies that embodied discrimination based on the content or viewpoint of expression, or vested officials with open-ended discretion that threatened the same, even where it was assumed that a properly drawn law could have greatly restricted or prohibited the manner of expression or circulation at issue"). Accordingly, the Court's observation that there are a handful of permissible applications of the decency and respect proviso, even if true, is irrelevant.15
15 The Court seemingly concedes that these isolated constitutional applications are in fact of little matter. For after speaking of specific applications that may be valid, the Court goes on to admit that these "would not alone be sufficient to sustain the statute." Ante, at 585. The Court nonetheless upholds the statute because it is not "persuaded that, in other applications, the language of § 954(d)(1) itself will give rise to the suppression of protected expression." Ibid. This conclusion appears to rest on some combination of (a) the Court's competition rationale as distinguishing Rosenberger and justifying the discrimination, (b) the Court's reading of the decency and respect proviso as something other than viewpoint based, and (c) the Court's treatment of "taking into consideration" as establishing no firm mandate subject to constitutional scrutiny. As already explained,
Page: Index Previous 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 NextLast modified: October 4, 2007