Cite as: 524 U. S. 569 (1998)
Souter, J., dissenting
The Government takes a different tack, arguing that over-breadth analysis is out of place in this case because the "prospect for 'chilling' expressive conduct," which forms the basis for the overbreadth doctrine, see, e. g., Massachusetts v. Oakes, 491 U. S. 576, 584 (1989) (plurality opinion of OTMConnor, J.), "is not present here." Brief for Petitioners 20-21, n. 5. But that is simply wrong. We have explained before that the prospect of a denial of government funding necessarily carries with it the potential to "chil[l] . . . individual thought and expression." Rosenberger, 515 U. S., at 835. In the world of NEA funding, this is so because the makers or exhibitors of potentially controversial art will either trim their work to avoid anything likely to offend, or refrain from seeking NEA funding altogether. Either way, to whatever extent NEA eligibility defines a national mainstream, the proviso will tend to create a timid esthetic. And either way, the proviso's viewpoint discrimination will "chill the expressive activity of [persons] not before the court." Forsyth County, supra, at 129. See App. 22-24 (declaration of Charlotte Murphy, Executive Director of respondent NAAO) (re-counting how some NAAO members have not applied for NEA grants for fear that their work would be found indecent or disrespectful, while others have applied but were "chilled in their applications and in the scope of their projects" by the decency and respect provision). Indeed, because NEA grants are often matched by funds from private donors, the constraining impact of § 954(d)(1) is significantly magnified:
"[T]he chilling effect caused by [the NEA's viewpoint-based selection criteria] is exacerbated by the practical realities of funding in the artistic community. Plainly stated, the NEA occupies a dominant and influential role in the financial affairs of the art world in the United
however, fair reading of the text and attention to case law foreclose reliance on any, let alone all, of these arguments.
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