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GAO discussed how the National Endowment for the Arts (NEA) has complied with appropriations limitations on funding of possibly obscene art. GAO found that: (1) NEA incorporated the statute as an express term and condition of every fiscal year (FY) 1990 grant; (2) NEA submits for further review any grant application that raises potential compliance issues; (3) the controls over grant awards cannot guarantee that funds will not be used in a manner inconsistent with the statute; (4) NEA has met its legal obligation to adopt reasonable controls designed to prevent statute violations; (5) NEA could enhance compliance with the statute by issuing additional guidance; (6) concerns have been raised that the statutory language is vague and possibly unconstitutional; (7) it might not be obvious whether seasonal support grant funds are used to promote, disseminate, or produce obscene materials; and (8) it is difficult to make determinations at the grant award stage on whether materials produced under the grant will comply with the statute.

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Recommendations for Executive Action

Agency Affected Recommendation Status
National Endowment for the Arts 1. NEA should issue a policy stating that it will apply the Miller test in order to respond to concerns over the alleged vagueness of the language.
Closed - Implemented
The agency issued a policy stating that NEA would apply the Miller test.
National Endowment for the Arts 2. NEA should consider adopting a procedure whereby grantees could seek advisory opinions from NEA at a later stage concerning whether they are in jeopardy of violating section 304(a). It might be possible in some cases for NEA, in response to a request from a grantee, to advise the grantee whether a potential use of grant funds would violate the statute.
Closed - Not Implemented
NEA has considered the recommendation but does not plan to implement it. NEA has decided that giving advisory opinions on actions that have not occurred puts it in jeopardy at being sued should its advice prove incorrect.