Arts organizations in Rhode Island scored a major First Amendment victory on September 19 when a federal court struck down the National Endowment for the Arts’ policy disfavoring grant applications that “promote gender ideology.” In Rhode Island Latino Arts v. National Endowment for the Arts, the court ruled that the NEA policy violates both the First Amendment and federal statute. The case was brought by the ACLU and the ACLU of Rhode Island on behalf of Rhode Island Latino Arts, National Queer Theater, the Theater Offensive, and Theatre Communications Group. The win mirrors the Authors Guild’s successful lawsuit against the National Endowment for the Humanities.

The case arose from the Trump Administration’s January executive order, EO 14168, directing that federal funds not be used to “promote gender ideology.” The NEA required grant applicants to certify compliance, prompting the arts organizations to file suit, arguing that the policy violated the First and Fifth Amendments and the Administrative Procedure Act (APA), and asking the court to enter a preliminary injunction. After initially rescinding the certification requirement, the NEA adopted a revised policy allowing its chairperson to decide case-by-case whether projects “promoted gender ideology” and weigh that against approval.

Thankfully, the court saw this revised policy for what it was: a clear First Amendment violation. It ruled that the policy discriminates based on applicants’ viewpoint, which is “an egregious form of content discrimination” that makes the policy “presumptively invalid.” The NEA did not merely disfavor all grant applications that “touched on the subject of ‘gender ideology,’ or on the relationship between sex and gender more broadly.” Instead, it “targets the promotion of specific ideas about these topics.” The court correctly recognized that the First Amendment bars the government from making funding decisions on that basis.

The court also found that the policy violates the APA because it exceeds the NEA’s statutory authority and is “arbitrary and capricious.” The court therefore set aside the NEA’s policy and enjoined the agency from applying a viewpoint-based standard to the plaintiffs.

The Guild congratulates the organizations that brought this case and is pleased to see that courts are upholding the First Amendment in the face of the administration’s unconstitutional efforts to control creators’ speech.

As Congress recognized in adopting the NEA and NEH, “[t]he arts and the humanities belong to all the people of the United States” and reflect the importance to our society of “fostering . . . mutual respect for the diverse beliefs and values of all persons and groups.” That is why, as we’ve said recently, the quality of a democracy itself can be judged by the quality of its arts.