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The Censor Upstream: Who Decides What Art Gets Shared?
Episode 199 • Bonus Episode • 14th October 2026 • ART IS CHANGE: Strategies & Skills for Activist Artists & Cultural Organizers • Bill Cleveland
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Who decides

There are lots of ways to censor an artist. You can ban the book, close the exhibition, cancel the performance. We know what those look like. But there's another way: you can make the artist wonder. Wonder whether a character will cost the theater a grant. Whether a festival celebrating queer artists is still fundable. Whether a nonbinary actor can play Faust.

In this Freedom of Expression Weather Report, we follow a few sentences inserted into the federal arts funding system. We start with the three theaters and the national service organization that took the National Endowment for the Arts to court, and Judge William E. Smith's ruling that the NEA's "gender ideology" policy put an unconstitutional thumb on the scale. Then we listen in on the October 2026 arguments before the First Circuit. And we track how anti-DEI certifications and canceled grants have traveled downstream, from Providence to Boston, from New York to Gallup, New Mexico, where some arts groups signed, some refused, and neighbors passed the hat.

If you've ever filled out a grant application and caught yourself editing the art to fit the form, this one's for you.

Key ideas:

  • The censor has moved upstream. Censorship doesn't need to storm the theater. It can show up as a checkbox, a vague criterion, or a question that makes artists cut the work before it's written.
  • Negative weight is still a weight. The government doesn't have to ban an idea to suppress it. It only has to make that viewpoint count against you when the money is handed out.
  • Follow the pipes. NEA dollars flow through state, regional, and local agencies, and the conditions attached to them flow along too, reaching organizations that never applied to Washington at all.

Listen, then share it with someone who funds, makes, or cares about the art in your community.

Notable Mentions

People

  • Marta V. Martínez: Executive director of Rhode Island Latino Arts, oral historian, and lead plaintiff's voice in the NEA case.
  • Lynette Labinger: Providence civil rights attorney and ACLU of Rhode Island cooperating counsel in Rhode Island Latino Arts v. NEA.
  • Luis Hernández: Morning host at The Public's Radio in Rhode Island, who interviewed Martínez and Labinger.
  • Judge William E. Smith: Senior U.S. District Judge in Rhode Island who ruled the NEA's "gender ideology" policy unconstitutional in September 2025.
  • Donald J. Trump: President of the United States, whose January 2025 executive orders set the policies at the center of this story.
  • Mary Anne Carter: Chair of the National Endowment for the Arts, who also led the agency during Trump's first term.
  • Andres Serrano: Photographer whose 1987 Piss Christ became a flashpoint in the culture-war fights over NEA funding.
  • Robert Mapplethorpe: Photographer whose NEA-supported retrospective The Perfect Moment sparked national controversy in 1989.
  • The NEA Four: Performance artists Karen Finley, John Fleck, Holly Hughes, and Tim Miller, whose vetoed grants in 1990 led to a landmark lawsuit.
  • Rose Eason: Executive director of gallupARTS in Gallup, New Mexico, which declined NEA-derived funding rather than sign the anti-DEI assurance.
  • April Chalay: Deputy director of 516 ARTS in Albuquerque, who signed the assurance and kept doing the work.
  • Matthew Chase-Daniel: Artist and co-founder of Axle Contemporary, Santa Fe's mobile art gallery.
  • Erin Harkey: President and CEO of Americans for the Arts.
  • Nina Ozlu Tunceli: Recently departed Executive director of the Americans for the Arts Action Fund and the field's longtime voice on Capitol Hill.

Organizations & Institutions

Books, Films & Recordings

Historical Events & Movements

Transcripts

Art Is Change: The Censor Upstream

Freedom of Expression Weather Report · Art in Action series

Bill Cleveland: Hey there. Seriously: who decides what art gets made?

From the Center for the Study of Art and Community, this is Art Is Change, a chronicle of art and social change where activist, artists, and cultural organizers share the strategies and skills they need to thrive as creative community leaders. My name is Bill Cleveland.

This episode is part of a special Art in Action series produced in partnership with the Charles F. Kettering Foundation's Democracy and the Arts program. In these episodes, we've been speaking with artists, cultural organizers and arts leaders who are navigating and challenging current efforts to limit free creative expression and free speech. Together, we're exploring what freedom of expression means in practice: not as an abstract right, but as a lived responsibility at the heart of democratic life. Periodically, this series includes a weather report based on current events.

[00:01:13] Bill Cleveland

Part 1: The Censor Upstream

Now, there are lots of ways to censor an artist. You can ban the book, close the exhibition, cancel the performance and take the painting off the wall. Those are the obvious ones. We know what they look like. But there's another way. You can make the artist wonder. Wonder whether a character will cost the theater a grant. Whether a festival celebrating queer artists is still fundable. Whether a word in an application will attract the wrong kind of attention. Whether a nonbinary actor can play Faust. Once artists start asking these questions, something important has already happened. The censor has moved upstream.

This is a Freedom of Expression Weather Report about a few sentences inserted into the federal arts funding system, the artists who challenged them, and what happened when those sentences began traveling through the country's cultural infrastructure. It's also a story about a deceptively simple question: Who decides what art gets made? And, more importantly, how the answer to this question often determines whose voice is heard and whose is not.

On January 20, 2025, President Donald Trump signed Executive Order 14168, titled "Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government." The order directed that federal funds not be used to promote “gender ideology” and told agencies to assess their grant conditions accordingly. With this action, an abstract and highly impactful presidential directive had arrived at the rehearsal room door.

The NEA occupies an unusual place in American cultural life. It does not own a national theater system or employ a federal company of muralists. Congress created it in 1965 with a straightforward mission, namely to broaden access to the arts and support artistic activity across the country. The grants are modest when compared to the budgets of many cultural institutions. They often attract matching support and signal that a project has survived national peer review. That is why a sentence in an NEA application can carry way more force than its dollar amount suggests. It can affect the project, the matching money behind it and the future planning around it.

[00:04:24] Bill Cleveland

Part 2: Faust, Smoke and the Checkbox

Let's start this story in Providence, Rhode Island. Rhode Island Latino Arts was considering an NEA application connected to a production of Faust in which a nonbinary actor might be cast. The organization was also considering a storytelling program whose earlier versions had included LGBTQ+ subject matter. Now its director, Marta Martínez, had to ponder a question that is not typically a part of a theater director's job description: Would any of that programming count as promoting gender ideology?

In Boston, The Theater Offensive faced a similar dilemma. It wanted NEA support for Smoke, a play set in 1960s Washington, D.C., about love, motherhood, found family and transgender life. A transgender playwright wrote it, and transgender actors were to play the two leading roles. The federal grant would help pay the artists.

And in New York, National Queer Theater needed support for its Criminal Queerness Festival, which presents work by international queer playwrights, including artists whose work may be difficult or dangerous to produce in their home countries. Queer awareness was not a side theme here. It was the purpose of the festival and the mission of the organization.

These three nonprofits and Theatre Communications Group, the national service organization for the nonprofit theater field, went to court. Represented by the ACLU and cooperating counsel, they sued the NEA. Their position was not that every arts organization deserved a federal grant. Their question was much narrower: Once the government creates a program to support artistic expression, can it make a viewpoint it dislikes count against an application?

Here, Rhode Island Latino Arts director Marta Martínez and attorney Lynette Labinger explain why NEA-funded work cannot become a government message.

[00:06:49] Luis Hernández: This is The Public's Radio. I'm Luis Hernández. Marta, let me start with you. I understand you were applying for an NEA grant when you saw something very odd in the application.

[00:07:00] Marta Martinez: I wrote the grant, and when I got to the end, a window popped up that asked me to check off a box before it was received, to agree to an executive order that had just been sent out by the White House.

[00:07:16] Luis Hernández: Yeah. I wondered, what was your reaction when you saw that?

[00:07:19] Marta Martinez: You're at the end of a grant that you spent weeks and weeks and weeks on, but I still felt very strongly I didn't want to check it, because it really stood against what we believe, and that's free expression, no matter what gender or race or color or religion you are.

[00:07:38] Luis Hernandez Lynette, the National Endowment for the Arts was requiring that grant applicants were not promoting gender ideology. Can't the NEA make grants to whoever they want?

[00:07:53] Lynette Labinger (Attorney) Well, the NEA is operating under controlling laws passed by Congress, and the purpose of these grants is to promote artistic expression, not to hire people to be a mouthpiece for the government. The statute is very clear, and the legislative history underlying it is very clear, that Congress in passing this law did not want the government to control what artists say, and that the only criteria were artistic excellence and artistic merit, and not to tell artists what productions to put on or how to do their artwork.

The NEA's Grants for Arts Projects, the program at the center of this case, funds eligible organizations such as nonprofit tax-exempt organizations, units of state or local government, and federally recognized tribes. Individuals and for-profit businesses cannot apply to this category.

However, when the court uses the phrase "private speech," it means something different. It is a First Amendment category, not one applied to individuals. The question is “Whose expression does the artwork represent?”. A nonprofit theater may receive public money.. Its play does not therefore become the government's play. The playwright does not become a federal spokesperson. In this instance, that difference is critical. As such, that distinction between government speech and independent expression by an eligible organization supported by government became the legal hinge of the case.

[00:09:55] Bill Cleveland:

Part 3: The Government's Strongest Argument

Before getting to the ruling, the government's argument deserves a fair hearing. Federal arts funding is, of course, limited. The NEA rejects applications every year. Congress sets broad purposes. The administration announces priorities. The NEA chooses proposals to fund, and declining to subsidize speech is not always the same thing as suppressing it. If the NEA funds a jazz project rather than a ballet project, ballet has not been censored. If Congress creates a program for rural arts access, an urban organization has not automatically suffered a constitutional injury. Government makes funding choices all the time. Otherwise, a grant program would be a checking account with no one minding the balance.

The harder question is whether the government is selecting subjects and programs in an impartial manner or penalizing a viewpoint that doesn't align with the ideological beliefs of a particular administration. Can the government say, "You remain free to make this play, but the ideas expressed in it count against you when we make decisions about how to distribute public arts money"? That is where grant administration stops sounding like paperwork and starts sounding like decisions involving the First Amendment.

It's important to note this boundary has been argued before. The NEA has survived decades of culture-war fights over work by Andres Serrano, Robert Mapplethorpe and the performance artists known as the NEA Four. As a result of this controversy, in a 1990 amendment to the National Foundation on the Arts and the Humanities Act, Congress imposed standards, including a requirement that the chair of the NEA consider general standards of decency and respect when making funding decisions.

In response, the NEA reorganized its entire grant structure and eliminated direct fellowships to individual artists in most disciplines, including theater, dance, visual arts, media arts and music. Then, in 1998, the Supreme Court upheld the decency language, treating it as one consideration in a competitive grant program rather than a categorical ban on a viewpoint.So how does this history relate to today's situation? Well, the current dispute concerns conditions imposed on nonprofit organizations, partly because the culture wars of the 1990s helped redesign the system so that organizations, not individual artists, have become the principal avenue for federal support for the arts.

[00:12:53] Bill Cleveland: Considering this history, the Rhode Island Latino Arts case asks a related but distinct question: When the NEA chooses among eligible organizational grant applicants, may it count the expression of a particular viewpoint against an organization? Not because the proposed work lacks artistic merit or fails to fit the grant's purpose, but because the administration disfavors the idea being expressed.

[00:13:27] Bill Cleveland

Part 4: The Case Before the Court.

Here's how this case has unfolded. In the first act, the NEA required applicants to certify that federal funds would not be used to promote what the executive order called gender ideology. The four arts organizations sued and asked Senior U.S. District Judge William E. Smith of Rhode Island to block that requirement while the case proceeded. Before he decided on that request, the NEA withdrew the certification mandate and said it was reconsidering how to carry out the executive order. So, on April 3, 2025, Judge Smith declined to block a requirement that was no longer in effect.

Then the NEA issued its replacement, the final notice. It abandoned the blanket certification mandate but still allowed the NEA chair to consider whether a proposed project promoted gender ideology when choosing which applicants are funded. So the paperwork changed, but the disputed gender ideology penalty remained. That brought the case back to Judge Smith for the second act, namely a decision on the merits. On September 19, 2025, he entered a judgment for the arts organizations. He held that NEA-funded artistic expression is private speech in the constitutional sense, not government speech. Again, that legal label does not mean the grantees are individual artists or purely private enterprises. It means the government does not own the message.

Smith found that the NEA policy, quote, "assigns negative weight to the expression of certain ideas on the issue of gender identity," unquote. Negative weight. That phrase does a great deal of work. The government does not need to prohibit the idea. It can simply put a thumb on the scale. One viewpoint enters the competition carrying a small administrative sandbag, and another does not. Smith held that this was viewpoint discrimination in violation of the First Amendment. He also found that the agency had exceeded its statutory authority and violated the Administrative Procedure Act.

Of course, in our third act, the administration appealed. On October 7, 2026, a three-judge panel of the United States Court of Appeals for the First Circuit heard lawyers argue over whether Smith's judgment could stand. The 53-minute argument was unusually useful because it exposed the disagreement without much ceremony. The government's lawyer acknowledged that a project's promotion of gender ideology could count against it and was best understood as a viewpoint. But the government argued that this was permissible. In a selective, competitive grant program, the NEA must choose, they said, and when those choices are made, presidential priorities may influence them, but artists are perfectly free to make unfunded work.

Here is an exchange between the lawyer representing the NEA and one of the judges on the question of whether gender ideology is a viewpoint.

[00:17:12] Government Lawyer Representing the NEA: …the chairperson will determine, in her independent judgment, as she does for all applications, whether the particular application's contents, whether the specific elements of the proposed project, align with the overall statutory rules.

[00:17:26] First Circuit Appeals Court Judge: Would you agree that gender ideology can be a negative, not a positive, feature in that analysis?

[00:17:30] Government Lawyer Representing the NEA: Yes, Your Honor. In the district court, we admitted that the fact that a project promotes gender ideology could weigh against a project's approval and would not weigh in favor of the project's approval.

[00:17:41] First Circuit Appeals Court Judge And that is a viewpoint, correct? Do you agree with that, at least? Gender ideology that gets a negative is a viewpoint?

[00:17:47] Government Lawyer Representing the NEA We have not disputed that that is best fit under a viewpoint, as opposed to a content-based, restriction.

The judge repeatedly pressed on what made this policy different from ordinary artistic judgment. Was the agency assessing a particular project for a particular audience, or was it importing the president's opposition to one viewpoint and treating that viewpoint as a negative everywhere? One judge called that possible distinction a one-way ratchet. Another asked why, if the problem were truly suitability for children or respect for diverse beliefs, the policy did not simply say that.

The judges tested that distinction with an example. Suppose the NEA is funding artwork welcoming visitors to the 2028 Olympics. Could it reject a painting meant for the stadium entrance that declares the Olympics a terrible waste of money, because the work does not fit that particular project, audience or location? The arts organizations' lawyer maintained that the challenged policy did not turn on where a work would appear, who would see it or what a particular grant was meant to accomplish. She maintained that it singled out one identified viewpoint and made that viewpoint a disadvantage across the board.

In this exchange, one of the judges poses another interesting hypothetical to the lawyer representing the arts organizations.

[00:19:16] First Circuit Appeals Court Judge: And it seems hard to say with a straight face that, in the context of the NEA administering grants, the viewpoint of promoting white supremacy will ever be a positive in the grant selection process. Let me give you another example: the viewpoint of promoting pedophilia.

[00:19:33] Lawyer Representing Arts Organizations: If you were to say you can never promote—

[00:19:35] Sirst Circuit Appeals Court Judge: That's not my hypothetical. I just said there are some viewpoints that it would be hard to understand how it ever could be a positive.

[00:19:44] Lawyer Representing Arts Organizations: But I think that if you create that rule for one viewpoint, you're opening the door to all viewpoints, and that can't be the case. If the government can discriminate against one viewpoint in providing subsidies for private speech, it could discriminate against all viewpoints. Otherwise, you're engaging in exactly that.

Now, it's important to note that appellate judges' questions are not a decision, and questions at oral argument do not reliably predict who will win. As of October 8, the First Circuit has not ruled. It may affirm Judge Smith, reverse him, modify his reasoning or send part of the case back for more proceedings. After that, either side could ask the full circuit to reconsider the case or seek review by the Supreme Court.

[00:20:48] Bill Cleveland

Part 5: The Other Fly in the Ointment

Unfortunately, this has not been the only hurdle NEA applicants have been navigating. The NEA's application guidelines include a different requirement tied to an executive order titled "Ending Illegal Discrimination and Restoring Merit-Based Opportunity." This is the administration's anti-DEI policy. Although it does not prohibit DEI activities, an applicant selected for an award must agree to comply with federal anti-discrimination laws and certify that it does not operate DEI programs that violate those laws. It also says this certification includes an organization's DEI activities even when they are unrelated to the NEA-funded project.

So what does this really mean? In practice, the administration considers illegal DEI any program that gives people an advantage or disadvantage based on race, sex or other protected characteristics. A July 2025 Justice Department memo lists examples: reserving opportunities for particular groups, holding programs or trainings limited to certain groups, and using criteria like "lived experience" or "cultural competence" as stand-ins for race.

The DEI stipulation is no small thing. Because grantees must certify compliance, a mistake can be treated not just as a policy violation but as a false claim to the government, with the risk of fraud lawsuits and lost funding. If an applicant is unsure whether a program crosses the line, the NEA says it cannot give legal advice and suggests consulting public resources or private counsel.

Imagine that instruction landing at a small theater with no lawyer on staff. The grant might be $20,000. The organization may have to start spending money on a lawyer before it knows whether it can safely accept the money. So legal questions and the inevitable paperwork begin consuming an organization's scarce resources long before the first rehearsal.

Uncertainty, of course, is not the same as a ban. But uncertainty has a cost, and not only in billable hours. It can change what people are willing to say and do. Uncertainty can also affect who applies. A large institution may be able to ask counsel for a written opinion or revise a compliance manual without skipping a beat. A small organization may have an executive director who is also the fundraiser, producer, facilities manager and the person who remembers to buy toner. Faced with a certification mandate that can impact the whole organization, that director may decide the safest federal application is the one never submitted. That decision, of course, would never appear in an NEA rejection total, yet it would still significantly alter the pool of art competing for public support.

[00:24:23]ABill Cleveland

Part 6: Following the Money Downstream

Now, the NEA is not simply a federal agency making direct grants. It sits near the headwaters of a multilayered funding ecosystem. Federal dollars move through state and jurisdictional agencies and regional arts organizations. Some recipients make subawards. Further downstream are local arts agencies, tribal governments, county and city programs, nonprofit intermediaries and arts councils who receive those subawards. Private philanthropy runs beside the public system and sometimes tries to fill the gaps.

The current NEA compliance regime makes the transmission mechanism explicit. Recipients must obtain compliance assurances from all subrecipients of NEA funds. The federal policy can therefore arrive at an organization that never applied directly to the NEA. That's not a thrilling prospect for NEA grantees. It is, however, the plumbing. If we want to know where pressure travels, we have to know where the pipes go.

New Mexico Arts receives NEA partnership money and distributes some of it through the state system. In April 2026, station KUNM reported that at least nine New Mexico organizations chose to forgo NEA-derived grants rather than sign the federal assurance that none of their programs violate anti-discrimination laws.

[00:25:55] Rose Eason, Gallup Arts It's not just that with your grant funding you cannot do X, Y, Z. It's if you are funded as an organization, in your entirety, you cannot promote diversity, equity and inclusion.

[00:26:08] KUMN Reporter: That's Rose Eason, executive director of Gallup Arts. Eason's program is among at least nine that no longer receive NEA funds through New Mexico Arts, our state arts agency. While many found the agreement too vague to sign, others saw the unclear language as an opportunity, like [name unclear], executive director of 516 ARTS.

[00:26:30] Rebecca Chalay: It's not correct, nor would it stand up in court, I think, for them to actually say that pretty firmly. So they're trying to go around it in vague terminology.

[00:26:45] Speaker 10: And with that vague terminology, Rebecca Chalay signed the agreement and is still doing the work that her organization was founded on. Matthew Chase-Daniel, co-founder of Axle Contemporary in Santa Fe, also signed to accept the funds.

[00:26:58] Matthew Chase-Daniel Well, we're basically doing what we would do anyway and not paying a lot of attention to it.

[00:27:06] UUMN Reporter: Chase-Daniel said he did a thorough read of the agreement and saw the agreement as an intimidation tactic

Matthew Chase-Daniel: So that in itself curtails free speech just by having a chilling effect, even if it’s not direct. It scares people, it intimidates people, and they speak out less.

So, same state, same federal language, different judgments about legal meaning, financial risk and institutional values. The response to all this has not divided neatly into red states that comply and blue states that resist. State and regional agencies have different legal obligations, funding dependencies and tolerance for risk. Some pass the federal language through. Some explain it narrowly. Some grantees refuse the money. Others sign and carry on.

The messy picture is more useful than a partisan map. It shows the actual pressure point. Each organization must decide how much ambiguity it can absorb and how much funding it can afford to lose. It also shows why the phrase "the funding food chain" can be misleading. Everyone downstream is not passive. State agencies and regional organizations administer federal requirements, but they also interpret and sometimes challenge them. Local organizations can accept, refuse, appeal or organize. Private funders and donors can respond. Power moves downstream. Information and resistance can move upstream.

[00:28:47] Bill Cleveland

Part 7: Further Disruption

[In May of 2025, America's fragile cultural ecosystem took another hit, not from new rules. In this case, the money just disappeared. Arts organizations around the country received notices that previously awarded NEA grants were being terminated because the projects were no longer aligned with new agency priorities. The new priorities included the 250th anniversary of American independence, disaster recovery, support for veterans and tribal communities, and other administration initiatives. Some organizations had planned programs around the funding that had been awarded. Some had already incurred costs expecting reimbursement. Needless to say, a federal grant termination notice produces a remarkable amount of chaos.

ArtsHere was one of the clearest examples of the ripple effect. It was an NEA initiative administered by South Arts in partnership with the six U.S. regional arts organizations. South Arts had selected 12 organizations working to expand arts participation, with grants ranging from $65,000 to $135,000. After the NEA terminated support and rejected an appeal, the regional partners ended the program.

These cancellations and the gender ideology policy are two ways federal priorities can reshape the field: attach conditions to money that remains available for grants, or withdraw money from projects that no longer fit the administration's priorities. To be fair, administrations do change priorities, and agencies sometimes terminate awards. But Congress appropriates the money and defines the agency's purpose. The president and the agency do not have unlimited authority to replace those purposes with their own. The statutory question, the difference between carrying out a program and redesigning it by executive instruction, runs right alongside the First Amendment issues we've encountered throughout this story.

Encouragingly, in the wake of NEA cancellations, some private philanthropies have responded. The Andy Warhol Foundation for the Visual Arts and the Helen Frankenthaler Foundation announced $800,000 in emergency support for 80 small and midsize organizations affected by the loss of Challenge America awards. Other foundations established relief funds or coordinated operating support. That help certainly mattered. It also demonstrated the limits of replacement funding. A foundation can rescue projects. It cannot readily reproduce a national public infrastructure with reach into every state and jurisdiction.

In Gallup, New Mexico, the response was intensely local. After Gallup Arts declined its grant, community donations and memberships helped sustain the curator program. That is a hopeful outcome, but it is not a universal business model. "Anger the federal government and hope the neighbors pass the hat" would make a pretty unstable line item in most budgets.

So where has the arts lobby been in all this? Americans for the Arts, the national advocacy organization, and its affiliated Arts Action Fund have urged Congress to preserve the NEA, issued action alerts and advocacy tools, gathered information about terminated grants, encouraged appeals and helped organizations navigate the disruption. That is real work, especially when an administration has repeatedly proposed eliminating the agency.

Americans for the Arts CEO Erin Harkey publicly called the grant cancellations and efforts to eliminate or diminish the NEA "damaging and short-sighted." Its Arts Action Fund supplied congressional messages and organizing tools. Nina Ozlu Tunceli, its executive director, later pressed NEA Chair Mary Anne Carter about the tension between serving underserved communities and implementing the administration's anti-DEI policy. Carter's blunt explanation for the revised guidelines was: "We have a new president." The answer is politically realistic. It is also exactly why legal boundaries matter. Elections change administrations. They do not erase congressional statutes or the First Amendment.

The distinction is worth making without turning it into a purity test. The field faces two fights. One is to preserve public arts funding and the institutions that distribute it. The other is to preserve artistic independence inside those institutions. A budget answers "How much?" It does not settle "On what terms?"

Listeners to this podcast, you have a role too. Congress created and funds the NEA. State legislatures fund state arts agencies. City councils fund municipal cultural programs. The funding chain is also an accountability chain. If you are hearing this as a citizen, begin with a local question: Where does the arts money in my community come from? A city grant may include state money. A state program may include NEA money. A regional program may carry federal conditions even when the application never mentions the NEA. Ask your state agency, city commission or local arts council whether its criteria or certifications have changed. Which funds are federal? Ask whether applicants have declined awards or altered programs. These are not trick questions. They're ordinary public accountability questions.

If you're an artist or run an arts organization, do not revise your work because you think a rule prohibits it. Read the exact language. Save old and new guidelines. Keep the emails. If a funder says particular artistic content makes a project ineligible, ask for that determination in writing. Talk with peer organizations before assuming you are alone. When the stakes justify it, consult qualified counsel or groups already working on these issues, including the ACLU, the National Coalition Against Censorship, FIRE, Theatre Communications Group, Americans for the Arts, the Arts Action Fund and the service organization for your discipline.

That is not advice to be reckless. A small organization should not destroy itself to make a constitutional point. Nor does every disagreement belong in court. Sometimes the useful first move is a written question to the funder. Sometimes it's a board conversation about risk. Sometimes several grantees can ask together and obtain a clearer answer than any one of them could alone. The point is to turn an atmosphere of fear and confusion into a specific issue that can be examined, answered and, if necessary, challenged. Understand the choice before quietly accommodating it.

The history of this case already shows that policy can move. The first NEA certification mandate was challenged and withdrawn. The revised policy was challenged and struck down by a district judge. The appeals court has just heard the oral arguments. The outcome remains open.

[00:37:00] Bill Cleveland

Part 8: Upstream

And so we return to the field of play in this case: a grant application, a cursor blinking on a screen, a playwright, curator or theater director trying to decide whether the story they want to tell is worth the risk.We tend to imagine censorship as an act: somebody enters the room and says, "No!" But censorship can also operate as an ambiguous warning, a funding criterion or a boundary nobody quite understands but everyone learns to watch. That is what lawyers call chilling effect. Artists know it as the moment when the question changes. Instead of asking, "What does this work need to be?" someone begins asking, "What will happen to us if we make it?".

The fight over the National Endowment for the Arts is not only about a few sentences in a federal application, it's about the distance between public support and political control. Who gets to decide which stories America tells about itself? Who gets to tell them. And what happens when the people controlling the money begin deciding that some grant applications deserve to be handicapped?

The censor does not need to storm the theater. Sometimes the censor arrives before the script is finished, before the casting, before the grant has been written, before the story has even been told. Upstream.

Art Is Change is a production of the Center for the Study of Art and Community. We'd like to thank the Charles F. Kettering Foundation for partnering with us for this Art in Action series.Please know that the views and opinions expressed in this podcast are those of the hosts and guests. They're not the views and opinions of the Charles F. Kettering Foundation. The foundation's partnership with us for this podcast is not an endorsement of its content. If you're interested in learning more about the foundation and its Democracy and the Arts program, please visit kettering.org or go to the link in our show notes, which also includes links to the many people, places, events and publications mentioned in this episode.

[00:39:35] Bill Cleveland: Thanks also to the Art Is Change team. Theme and soundscapes spring forth from the head, heart and hand of the maestro, Judy Munsen Our text editing is by Andre Nebe Our effects come from freesound.org, and our inspiration comes from the ever-present spirit of Luke 2:35 So until next time, stay well, do good and spread the good word.

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