dissenting:
I respectfully dissent.
First Amendment law has taken some odd turns lately. We now live in a legal context prohibiting display of a cross or menorah on government property. American Jewish Congress v. City of Beverly Hills, 90 F.3d 379 (9th Cir.1996), Separation of Church and State Committee v. City of Eugene, 93 F.3d 617 (9th Cir.1996). But if a cross is immersed in urine, a government grant cannot be withheld on the ground that the art would offend general standards of decency and respect for the religious beliefs of most Americans. The government, under today’s decision, cannot even consider “general standards of decency and respect for the diverse beliefs and values of the American public” when it gives artists grants. Yet we penalize private employers for slowness in firing employees who do not show decency and respect for other employees. See Steiner v. Showboat Operating Company, 25 F.3d 1459 (9th Cir.1994). This self-contradictory silliness is not built into the Bill of Rights. The First Amendment does not prohibit the free exercise of common sense.
Artists, and for that matter, non-artists, are constitutionally entitled to express themselves indecently and disrespectfully toward the beliefs and values of as much of the American public as they like. Indecency sometimes helps to communicate an idea effectively, and it is constitutionally protected. See Cohen v. California, 403 U.S.. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971). Lenny Bruce’s monologues needed offensive indecency to accomplish their legitimate artistic objective. The same language that gave rise to liability in Steiner was essential to Allen Ginsberg’s artistic expression in Howl and Kaddish. The great Modigliani nudes are frankly erotic and focus on the models’ pubic hair; our Constitution unquestionably protects them from censorship. Less artistically distinguished attempts to communicate by means of offensiveness and indecency are also entitled to First Amendment protection. Molly Bloom’s soliloquy, Aristophanes’ jokes about passing gas, Shakespeare’s, double entendres, the indecent kiss in Chaucer’s Miller’s Tale, and countless works by lesser artists, such as Samuel Clemens’ 1601 and Vladimir Nabd-kov’s Lolita, are all part of the ancient artistic tradition of using the impolite or indecent in art. Every general art history textbook reproduces and discusses Edouard Manet’s. Luncheon On the Grass, á painting of a nude woman looking at the artist while two fully clothed men sit next to her and talk to each other. The content and viewpoint doubtless offend, but the art history books are constitutionally protected regardless. There can be no constitutional excuse for allowing the government to censor art on grounds of indecency or offensiveness. I hope that it is still as clear as it was when Cohen came down that anyone in America, artist or not, has a constitutional right to express himself indecently and offensively.
That offensive or indecent expression cannot be censored does not mean that the government has to pay for it. By drawing the line between private expression and government conduct, we preserve liberty for individual expression, while preserving democracy for governmental decisions. Any time government enters a previously private sphere of conduct, the line becomes blurred, and the issues difficult. Government subsidy of art was an easy issue when the Medicis hired artists — the Medicis could freely impose their preferences. But when a democratic government pays artists to stick their thumbs in the public’s eye, the public naturally becomes annoyed, and attempts to exercise its ordinary authority in a democracy to control through Congress how tax monies are spent.
Whether government can consider content and viewpoint depends on whether the money it gives out is generally available to all who meet some basic standard, or whether it is a prize given to a select few. Only 88 out of 5168 applicants for Visual Artists Fellowships won grants in fiscal year 1994. 199U Annual Report, National Endowment for the Arts 10. Applying for an NEA arts grant is not like applying for welfare, social security, *685a tax exemption, or a student activity grant. NEA grants are prizes for the fortunate few, not entitlements.
The case at bar does not involve government censorship. If Congress had prohibited artists from expressing themselves indecently or disrespectfully, the Constitution would make such a law null and void. The NEA statute before us is not such a law. It does not restrict what artists do. It restricts what the NEA can do. This case'is about whether the American people can require a government agency to consider, in giving grants to very few of the many artists in the country, “general standards of decency and respect for the diverse beliefs and values of the American public.”
Our decision today creates a conflict with the only other circuits to have confronted a similar issue. Advocates for the Arts v. Thomson, 582 F.2d 792 (1st Cir.), cert. denied, 429 U.S. 894, 97 S.Ct. 254, 50 L.Ed.2d 177 (1976). In Advocates, New Hampshire denied an NEA grant to a literary magazine because the governor and state arts commission thought a poem it published was indecent. The First Circuit, rejecting the First Amendment challenge, explained that denial of a grant was not suppression of speech, and the grant selection process necessarily discriminated based on content:
[Pjublic funding of the arts seeks “not to abridge, restrict, or censor speech, but rather to use public money to facilitate and enlarge” artistic expression. A disappointed grant applicant cannot complain that his work has been suppressed, but only that another’s has been promoted in its stead. The decision to withhold support is unavoidably based in some part on the “subject matter” or “content” of expression, for the very assumption of public funding of the arts is that decisions will be made according to the literary or artistic worth of competing applicants.
Id. at 795.
Advocates suggests that every disappointed grant applicant has the same First Amendment right of self-expression, but that does not mean that every disappointed grant applicant has a First Amendment claim. Id. at 795-96. Suppose the NEA arts panel discriminates by viewpoint against an excellent artist whose work is too conventional for the panel’s tastes — an artist with the superb technique of a Robert Mapplethorpe and the vision of a Norman Rockwell. And suppose it discriminates against another whose art is too indecent and offensive. And another, whose viewpoint is interesting but whose technique is less than excellent. Do all have First Amendment claims under the majority decision? Only the one who creates indecent art? Only the ones with excellent technique? It is impossible to have a highly selective grant program without denying money to a large amount of constitutionally protected expression, decent and indecent.
The Seventh Circuit ruled similarly to the First Circuit, in Piarowski v. Illinois Community College, 759 F.2d 625 (7th Cir.1985). The chairman of the art department hung his stained glass panels of such subjects as “the naked rump of a brown woman, and sticking out from (or into) it a white cylinder” in the college’s gallery near the main entrance to a heavily trafficked building. The college told him to move three panels to a less heavily trafficked fourth floor display space, after receiving “complaints from students, cleaning women, and black clergymen.” Id. at 628. The main entrance space was especially desirable, but not a public forum, and not available to all. The artist lost his case.
The Seventh Circuit distinguished between what an artist is free to create, and what the government must display.
If Claes Oldenberg, who created a monumental sculpture in the shape of a baseball bat for display in a public plaza in Chicago, had created instead a giant phallus, the city would not have had to display it next to a heavily trafficked thoroughfare.
Id. at 630.
Advocates points out the resemblance of a government grant program to a government auditorium providing space for artistic performances. If it is a public forum, then neutrality is required by the First Amendment. Advocates, 532 F.2d at 796. But if the space is available only to a select few invited exhibitors as in Piarowski, then the government, already excluding much consti*686tutionally protected art, need not be neutral toward offensive or indecent art. That is why, in the Piarowski example, Chicago would be free to discriminate in favor of baseball bats and against phalluses in the hypothetical display.
The majority tries to distinguish the First Circuit and Seventh Circuit cases on the ground that they came down before Rosenberger v. Rector & Visitors of University of Virginia, — U.S. —, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995), and Rosenberger now prohibits the content or viewpoint discrimination they allowed. That misreads Rosenber-ger. The university which lost Rosenberger paid expenses for virtually all student organizations, but denied the money to plaintiffs because they expressed a Christian viewpoint. In its zeal to steer clear of the establishment clause, the university, like the school district in Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993), overlooked the free speech clause.
Rosenberger holds that a university which makes money generally available for student groups’ expenses, to encourage a diversity of views rather than to express its own, cannot discriminate against an applicant based on that applicant’s viewpoint. Rosenberger teaches that when government makes a benefit generally available to all within a diverse class, it cannot make an exception based.on what a particular applicant wishes to say. This extends Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993), from space to money, thereby preventing discrimination against speech on the ground that it was religious. A public forum can be created by money, not just real estate. This is because speech is often disseminated by print and electronics, rather than by standing in front of people and talking to them. Cf. Buckley v. Valeo, 424 U.S. 1, 19, 96 S.Ct. 612, 634, 46 L.Ed.2d 659 (1976).
We and the District of Columbia Circuit had decided, before Rosenberger, what might be classified as money-as-a-public-forum cases. In Bullfrog Films, Inc. v. Wick, 847 F.2d 502 (9th Cir.1980), we held that customs duties exemptions for any educational or cultural materials could not exclude propaganda films based on their content and viewpoint. In Big Mama Rag, Inc. v. United States, 631 F.2d 1030 (D.C.Cir.1980), the District of Columbia Circuit held that a tax exemption generally available to educational organizations could not be denied based on a regulation requiring full and fair exposition of facts enabling a reader to draw an independent conclusion. Under these cases, all applicants in the class were entitled to the financial benefit from the government, unless the content of their speech was contrary to government standards. By contrast, in the case at bar, no applicant is entitled to the financial benefit.
The ease at bar would be analogous to Rosenberger (and I would join the majority in rejecting the “decency and respect” clause as unconstitutional), if the NEA gave out grants to virtually all artists except for those whose work violated “general standards of decency and respect for the diverse beliefs and values of the American public.” Arts grants would then be the financial equivalent of a tax credit for all artists, and under Rosenberger, Big Mama Rag and Bullfrog, the financial bénefit could not be conditioned on a vague and content- or viewpoint-based criterion like the “decency and respect” formula. Much as parade permits may be allocated on a first come first served principle, but not to favor particular viewpoints, arts grants would have to be allocated on some neutral principle, such as first come first served, or random selection. Cf. Rosenberger, — U.S. at -, 115 S.Ct. at 2519.
It is not the case that whenever the government gives money to someone for talking, the recipient may say, with the government’s money, whatever he or she likes. The government can hire people to say what it wants, and require them to say it. *687Rosenberger, — U.S. at -, 115 S.Ct. at 2519 (explaining Rust v. Sullivan, 500 U.S. 173, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991)). But when the government gives money to encourage a diversity of views from private speakers in a class not defined by what they say, such as university students, it “may not silence the expression of selected viewpoints.” Id.
*686[W]hen government appropriates public funds to promote a particular policy of its own it is entitled to say what it wishes. When the government disburses public funds to private entities to convey a governmental message, it may take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted by the grantee.
*687The majority misreads Rosenberger’s rejection of the University of Virginia’s argument that scarcity of money justified viewpoint discrimination. Rosenberger, — U.S. at -, 115 S.Ct. at 2519-20. The context was a program in which grants went to virtually all speakers but those with a Christian viewpoint, not to everyone except for a few prizewinners. The Court explained that the Student Activities Fund at the University of Virginia “is a forum more in a metaphysical than in a spatial or geographic sense, but the same principles are applicable.” Id. at -, 115 S.Ct. at 2517. This is the concept which I have expressed perhaps more crudely, as teaching us that a public forum can be created by money, not just real estate. Had the University of Virginia set np a prize fund, for student groups which contributed the most to the betterment of secular civic life in Charlottesville, the Christian student groups would have had no constitutional claim of discrimination had they lost. Had the NEA grant program been structured to award grants to virtually all artists, then the plaintiffs in the ease at bar would be entitled to prevail under Rosenber-ger. The majority uses principles for entitlement and regulation cases in a-prize case. The principles are by and large right, the application wrong.
When the government gives a prize rather than an entitlement, it necessarily discriminates by content and viewpoint. Congress decided to foster the arts, but many Congressmen were doubtless aware of artists’ tendency since the romantic period to challenge the conventional. Thus Congress imposed several content and viewpoint criteria for arts grants. These include “artistic excellence,” promoting cultural diversity, and reflecting the culture of inner cities, rural areas, and tribal communities.1 Congress *688thereby discriminated against non-artistic expressions of opinion, artistic expression favoring cultural homogeneity, and art reflecting suburban culture. Norman Rockwell and Ansel Adams could reasonably complain, were they applying for grants,- that the statute constitutes ■ viewpoint discrimination against their artistic expression.
Of course the statutory criteria are vague. “Decency and respect for the diverse beliefs and values of the American people” is vague. “Artistic excellence” and “artistic merit” are also vague, and could not be proper criteria for censorship or discrimination in an entitlement program. The constitution would not. allow the government to censor expression on the ground that it was not art, or though art, was not excellent art. But this does not mean that the government cannot condition prizes on the excellence of art.
Philosophers have no way to distinguish art from non-art, or good art from bad art. There is not even a useful vocabulary for most of the distinctions we need to identify “artistic excellence”:
In certain kinds of writing, particularly in art criticism and literary criticism, it is normal to come across long passages which are almost completely lacking in meaning. Words like romantic, ‘plastic, values, human, dead, sentimental, natural, vitality, as used in art criticism, are strictly meaningless, in the sense that they not only do not point to any discoverable object, but are hardly ever expected to do so by the reader. When one critic writes, “The outstanding feature of Mr. X’s work is its living quality,” while another writes, “The immediately striking thing about Mr. X’s works is its peculiar deadness,” the reader accepts this as a simple difference of opinion. If words like black and white were' involved, instead of the jargon words dead and living, he would-see at once that the language was being used in an improper way.
George Orwell, Politics and the English Language, in A Collection of Essays 156, 161-162 (emphasis in original) (essay dated 1946).
The most used art history text points out the vagueness of the entire NEA grant scheme:
But if we must give up any hope of a trustworthy rating scale for artistic quality, can we not at least expect to find a reliable, objective way to tell art from non-art? Unfortunately, even this rather more modest goal proves so difficult as to be almost beyond our powers.
H.W. Janson, History of Art 9 (1962). It took a century and a half for most critics to agree that photography could be art. Some have not yet admitted jazz to the pantheon, many, rock and roll. Some disagree on whether Bernstein’s West Side Story is art or mere entertainment, let alone excellent art. If the constitutional law principle prohibiting vague laws relating to speech applied to NEA grants, then we could no more let the government give out grants for excellent art, than let it censor literary and artistic expressions which in the opinion of some customs agent or policeman (or art critic) were bad art.
The majority says that the vagueness of “artistic” and “excellence” are constitutionally permissible, unlike “decency” and “respect,” because the people making the decisions are experts. Maj. op. at 680-81, n. 18. By that principle, it would be permissible to let the government censor speech with vague laws, so long as the censors were experts in the field being censored. The argument is wrong, because the panel members’ purported expertise does not give fair warning to artists of what will get them grants and what •will not. Nor are the purported experts’ *689choices sufficiently constrained by “artistic” and “excellence” to prevent arbitrariness. Quite a few NEA grants have gone to activities which many experts would deem not excellent, or not art. There is no principled way to keep the arte grants but strike the decency and respect clause. Either Congress can provide for arte grants with vague criteria, or it cannot provide for them at all.
Artiste seeking grants have no property right to them, and their liberty to express themselves as they choose is not regulated by the grants. Vagueness law has been developed under the Fifth Amendment to protect people from the taking of liberty or property without fair notice of what they may not do, and without protection against arbitrary enforcement. See Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983). First Amendment vagueness doctrine applies to government action relating to speech if the government regulates speech or conditions a generally available benefit upon the content of speech. See Rust v. Sullivan, 500 U.S. 173, 200, 111 S.Ct. 1759, 1776, 114 L.Ed.2d 233 (1991) (“conditions attached to expenditures of Government funds”); Gentile v. State Bar of Nevada, 501 U.S. 1030, 1051, 111 S.Ct. 2720, 2732, 115 L.Ed.2d 888 (1991) (“prohibition against vague regulations of speech”). An artist applying for an NEA grant has no formula, and is not entitled to one, for the painting or performance which will produce a grant. None of the purposes of vagueness law apply to prizes.
The majority construes the statute as though it prohibited the NEA from awarding grants to offensive or indecent art. I doubt it would matter if the statute said that. Congress may be free to condition these scarce NEA grants on content. If Congress hired a sculptor to create a bust for the Capitol, it could tell him to do a bust of Abraham Lincoln, and prohibit him from doing a bust of John Wilkes Booth. Or it could tell the sculptor to make busts only of people who had served in the Senate, or perhaps only of “great” Senators, despite the vagueness of that criterion. That much is clear under Rust. Just as Fulbright grants to foreign students may be conditioned on “directing their talents and initiative into channels which will make them more effective leaders,” 22 U.S.C. § 2454(e)(3), prizes for only a few applicants, to which no one is entitled, may be conditioned on vague criteria designed to serve particular congressional objectives.
Even if we were to suppose that a specific prohibition of NEA grants based on content or viewpoint would be unconstitutional, the majority has found prohibitions in the statute which are not there. We should not read a statute as though it prohibited what it does not, and then hold it unconstitutional for the imaginary prohibition. The statute does not say that artiste must “tak[e] into consideration general standards of decency and respect for the diverse beliefs and values of the ■American public.” It says “the Chairperson” of the National Endowment of the Arts' must use “artistic excellence” and “merit” as criteria, “taking into consideration,” etc.
The words “take into consideration” mean take into consideration, no more, no less. The word “consider” in its ordinary usage means “to reflect on” or “think about with a degree of care or caution.” See Webster’s Third New International Dictionary 483 (1981). In deciding whether to buy a new car, one takes into consideration the expense, but that does not mean one always decides against buying a new car. A requirement that “due consideration and weight shall be given” to something does not make the thing an absolute requirement. See Heirens v. Mizell, 729 F.2d 449, 460 (7th Cir.1984) (parole board had to consider a prisoner’s record but could decide. against parole despite a good record). A court of appeals appoints a federal public defender “after considering recommendations from the district court.” 18 U.S.C. § 3006A(g)(2)(A). That means that we must give serious thought to the district court’s recommendations, but we are not required to follow them.
Likewise, the NEA might think seriously about Ginsberg’s extensive use of vulgar language in Howl and Kaddish, and decide against funding readings of his poems in junior high schools. But after considering the indecency and offensiveness, the NEA *690could lawfully fund readings in colleges. It might likewise decide for or against funding showings of artistically excellent but highly offensive works such as Leni Riefenstahl’s Nazi propaganda movie, Triumph of the Will, or D.W. Griffith’s artistically.important movie Birth of a Nation, which glorified the Ku Klux Klan. If someone on an advisory panel said “I don’t think we can consider the indecency or disrespect for American values of the art — we should fund the grants because the presentations will be of excellent art, and that is all we should consider,” another panel member could persuasively reply, “we can and must consider decency and respect — Congress said we should.” That is what the “decency and respect” language means, and that is all it means. Chairman Frohnmayer and the members of NEA grants panels probably would have figured out that they lived in a “political world,” see maj. op. at p. 676, n. 7, and that the NEA budget might be affected by what it did with the money, even if Congress had not given them the decency and respect criterion.
By contrast with the “take into consideration” language, Congress said that obscenity “shah not be funded.” 20 U.S.C. § 954(d)(2). That language, unlike “taking into consideration,” prohibits funding. The language we now hold unconstitutional tells the Council and panels to think seriously about “general standards of decency and respect for the diverse beliefs of the American public” when they give away the public’s money.
The artists in the program before us are not affected by the statutory grant criterion in their use of indecency or disrespect in their art done independently of their NEA grants. If the NEA were restricted from giving grants to artists who, outside the grants, had ever done indecent or offensive work, the considerations would be different, possibly leading to a different result. Cf. Federal Communications Commission v. League of Women Voters, 468 U.S. 364, 399-400, 104 S.Ct. 3106, 3127-28, 82 L.Ed.2d 278 (1984) (acceptance of the government’s money unconstitutionally required the recipient to conform to government speech requirements outside the time paid for by the government). The government cannot use its power to condition subsidies as a means of enforcing orthodoxy in areas traditionally open to the public for expressive activity. Rust, 500 U.S. at 199, 111 S.Ct. at 1776; Regan, 461 U.S. at 548, 103 S.Ct. at 2002.
A prize for some art naturally encourages other artists to try to produce art of the sort which they think will get them the prize, including conformity to the content and viewpoint preferences of those who award the prizes. The members of the grant committees will probably balance their personal tastes against what they fear might lead Congress to cut NEA funding. If government selects a few artists and gives them money, it will unavoidably influence the work of many more:
I can seldom do positive good to another person without limiting him. I can, it is true, simply give him money, but even in this extreme case, where I-seem to place no bonds on him, he inevitably faces the question of what conduct on his part will lead me to give money to him again.
George J. Stigler, The Intellectual and the Market Place 95 (1963). This is a problem of governmental involvement in what used to be a private activity, not a problem of censorship. The United States government has so much money and power that its slightest intervention to do good has the unfortunate effect of changing the entire context in which people act. But unless we are to blind ourselves to the distinction between a relatively few arts prizes, and socializing the art industry, we cannot treat the incentive afforded by a prize as the equivalent of censorship.
The artists who brought this lawsuit may have difficulty (the record does not say) attracting enough patrons to support their art. Finley alleges in her complaint that she is a “performance artist whose performances address such issues as the sexual stereotyping and objectification of women, rape and other forms of violence against women, and the powerlessness and victimization of women and others in our society.” Fleck alleges that his performances “openly challenge traditional notions of gender and sexuality” and “address AIDS, birth, death, religion, consumption in a capitalist society, and the environment.” Hughes alleges that her work *691“addresses issues of women’s power in society and women’s sexuality, including -lesbian relationships.” Miller alleges that his “often autobiographical work addresses the relation between the individual and society, and particularly concerns social activism on issues affecting gay people, including AIDS.” These works may lack the mass market of art appealing to more broadly shared sentiments.
There is no constitutional principle, however, which requires the government to replace the market and pump up the incomes of less popular artists. Government support of the arts is a policy choice, and perhaps a good one, but it is not constitutionally compelled. Lack of market appeal is an obstacle “not of [the government’s] own creation.” Regan v. Taxation with Representation Wash., 461 U.S. 540, 549-50, 103 S.Ct. 1997, 2003, 76 L.Ed.2d 129 (1983). So long as the artists are free to perform, people are free to patronize their performances, and the artists are not deprived of government money to which artists generally are entitled, the artists’ freedom of expression is not abridged by content or viewpoint discrimination in the grant process.
The only practical guarantee of artistic freedom is private money.
The leadership of individuals or groups who can back their beliefs financially is particularly essential in the field of cultural amenities, [and] in the fine arts.... If minority views are to have a chance to become majority views, it is necessary not only that men who are already highly esteemed by the majority should be able to initiate action but that representatives of all divergent views and tastes should be in a position to support with their means and their energy ideals which are not yet shared by the majority.
Friedrich A. Hayek, The Constitution of Liberty 125 (1960, 1978). With diverse sources of private money, majority preferences need not affect an artist’s freedom or fortune, because only one or a few patrons or purchasers may suffice.
First Amendment law protects individual liberty from government, not the government from the people. The error in today’s decision comes from forgetting what the First Amendment is for. The NEA “decency and respect” criterion controls, not artists, but rather a government department, the NEA. By treating legislative control over a part of government as though it were an attempt to control artists’ expression, we confound the distinction between popular control of government, and government control of individuals. Majorities do not have the right to control free expression by individuals. They most certainly do have the right to control their government. Today’s decision does not protect artists from government. It protects the government from control by the elected representatives of the people.
. (c) Program of contracts, grants-in-aid, or loans to groups and individuals for projects and productions; traditionally underrepresented recipients of financial assistance. The Chairperson, with advice of the National Council on the Arts, is authorized to establish and carry out a program of contracts with, or grants-in-aid or loans to, groups or, in appropriate cases, individuals of exceptional talent engaged in or concerned with the arts, for the purpose of enabling them to provide or support—
(1) projects and. productions which have substantial national or international artistic and cultural significance, giving emphasis to American creativity and cultural diversity and to the maintenance and encouragement of professional excellence;
(2) projects [and] productions, meeting professional standards or standards of authenticity or tradition, irrespective of origin, which are of significant merit and which, without such assistance, would otherwise be unavailable to our citizens for geographical or economic reasons;
(3) projects [and] productions that will encourage and assist artists and enable them to achieve wider distribution of their works, to work in residence at an educational or cultural institution, or standards of professional excellence;
(4) projects and productions which have substantial artistic and cultural significance and that reach, or reflect the culture of, a minority, inner city, rural, or tribal community;
(5) projects and productions that will encourage public knowledge, education, understanding, and appreciation of the arts;
(6) workshops that will encourage and develop the appreciation and enjoyment of the arts by our citizens;
(7) programs for the arts at the local level;
(8) programs that enhance managerial and organizational skills and capacities;
(9) projects, productions, and workshops of the kinds described in paragraphs (1) through (8) through film, radio, video, and similar media, for the purposes of broadening public access to the arts; and,
(10) other relevant projects, including surveys, research, planning, and publications relating to the purposes of this subsection.
(d) Application for payment; regulations and procedures. No payment shall be made under this section except upon application therefor which is submitted to the National Endowment for the Arts in accordance with the regulations and procedures established by the Chairperson. In establishing such regulations and procedures, the Chairperson shall ensure that — ■
(1) artistic excellence and artistic-merit are the criteria by which applications are judged, taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public; and
*688(2) applications are consistent with the purpose of this section. Such regulations and procedures shall clearly indicate that obscenity is without artistic merit, is not protected speech, and shall not be funded. Projects, productions, workshops, and programs that are determined to be obscene are prohibited from receiving financial assistance under this Act from the National Endowment for the Arts. The disapproval or approval of an application by the Chairperson shall not be construed to mean, and shall not be considered as evidence that, the projects, production, workshop, or program for which the applicant requested financial assistance is or is not obscene.
20 U.S.C. § 954(d) (emphasis added). The 1990 amendment added the emphasized language to 20 U.S.C. § 954(d).