EDITORIAL : WAYWARD JUDGES STRAY AGAIN; STANDARDS FOR ART GRANTS DON'T AMOUNT TO CENSORSHIP.

THE often-reversed U.S. 9th Circuit Court of Appeals may have done it again.

The Supreme Court has agreed to review yet another injudicious decision by the 9th circuit. The latest is a 2-1 ruling striking down congressional legislation ordering the government-supported National Endowment for the Arts to make decency a test for awarding grants.

As of last summer, the high court had reversed 28 of the last 29 9th circuit decisions that it reviewed.

The San Francisco-based appellate court, in a suit brought by four performance artists, held that the decency test amounted an unconstitutional violation of free speech rights and was so vague that it ``gives rise to the danger of arbitrary and discriminatory application.''

We, however, aren't aware that Congress did anything to infringe upon anyone's free speech rights. It simply wanted the NEA to consider ``general standards of decency and respect for the diverse beliefs and values of the American public'' when handing out the taxpayers' money.

That didn't amount to censorship. Congress was simply doing what it does all the time: establishing guidelines for discretionary federal spending.

Judge Andrew Kleinfeld made that point in his forceful dissent.

``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 its tax monies are spent,'' Kleinfeld said. ``That offensive or indecent expression cannot be censored does not mean that government has to pay for it.''

There is nothing in the Constitution that compels Congress to grant any money at all to artists.

Congress simply has made a political decision to do so. And it has done what patrons of the arts have done for centuries: decide how its money - or more precisely, the taxpayers' money - should be spent. We believe that in this instance, Congress is accountable to the people, not the courts, as to the wisdom of its decision.

Applicants who were denied NEA grants still are free to seek money elsewhere to support their art. On the other hand, the authority of Congress as the legislative branch of government might be seriously undermined if the 9th circuit's tortured interpretation of the First Amendment stands.