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Table of Contents National Campaign for Freedom of Expression Appendix I: What To Do If it Happens to You Appendix III: Sample Documents
Distinguish Between “Challenges” and Artistic Decisions It is important to distinguish between censorial and curatorial decisions. Decisions made by arts professionals, based on considerations of merit, to exclude a work of art from a particular presentation are not challenges to artistic freedom. Of course, the distinction between a censorial and curatorial decision is not always clear, and artistic quality is often cited by challengers when they are actually reacting to the content, message, or viewpoint of the art. Sifting Through the Legal Mumbo Jumbo The discussion of legal concepts included in this handbook is a very basic framing of some of the issues that commonly arise with challenges to artistic freedom. This handbook is not intended to provide definitive guidance on legal questions; this area of the law is actively evolving and may vary significantly from state to state. Whether or not an artist or arts organization has a legal claim against a challenger depends upon the specific context and facts of the situation. Consult a lawyer if you suspect that the government may have violated your First Amendment rights to freedom of artistic expression. See Appendix II for a list of organizations that can refer you to legal support. The First Amendment Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Vagueness When government acts to regulate expression in a public place, it must do so in a way that is not vague or unclear to either those who must administer the regulation or those who are bound by it. Regulations with uncertain reach may be deemed unconstitutional if they have the strong potential to chill constitutionally protected artistic expression. For example, an ordinance prohibiting “controversial” performance at a park amphitheater would likely be unconstitutionally vague because the category of expression barred was not defined precisely enough. As a result of this vagueness, enforcement of the ordinance would be left up to the personal preferences and predilections of those enforcing it. “If you can control representation of the body , you can control the body politic. That’s why we fight censorship.” Marilyn Zimmerman, photographer Visual Artists Rights Act and Other Statutory Protection The Visual Artists Rights Act (VARA), part of the federal copyright law,
offers visual artists some legal protections against the modification
of artwork and the removal of permanent installations. The act creates
civil liability against those who intentionally distort, mutilate, or
modify artwork in such a way that dishonors the artist. The law allows
artists to prevent the intentional or grossly negligent destruction of
work of “recognized stature.” The law also protects the rights
of artists to claim or disclaim authorship of artwork that has been modified
or distorted. With respect to works that are part of a building that can
be safely removed, the law requires the building owner to attempt to notify
the artist and give the artist 90 days to remove the work. However, the
law is fraught with exceptions and limitations, and the rights recognized
under it may be waived by contract. Regulation of Communications Media The broaaadcastcommunications media are regulated by the Federal Communications Commission. The government has greater ability to restrict the content of radio and broadcast television than other media. In 1978, the U.S. Supreme Court upheld the FCC’s ruling that George Carlin’s comedy routine, Filthy Words, although not legally obscene, could not be broadcast during certain times of the day. Television, which like radio “invades” the home and has historically been regulated by government, was also held to be subject to such restrictions. In 1997, the Supreme Court rejected requests to treat the Internet like radio and television, holding instead that the Internet enjoyed unqualified First Amendment protection like bookstores. “I know better now not to send my work to Alabama.”
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UNDERSTANDING This handbook focuses on the three most common types of challenges to freedom of artistic expression: protests and boycotts, breaches of exhibition contracts, and censorship by governmental officials. A single incident may involve any one or combination of these challenges. Protests and Boycotts Protests by private organizations or individuals, offended either by the presentation of art or the mere fact of its existence, often prove to be the most disruptive challenge. Even when the artist has the support of the presenter, local government officials, and the majority of the community, offended and organized individuals can effectively disrupt an exhibition or performance. Tactics range from staged demonstrations to extensive media campaigns and organized boycotts of the presentation and its financial backers. Challenges to artistic freedom often come from organized segments of what has become known as the “religious right.” Most of the well-known national organizations, such as the Christian Coalition, the American Family Association, and Focus on the Family, have local chapters that may actively monitor art in your community. Some conservative church and parents organizations may also devote energy and financial resources to challenging artistic freedom. But such challenges do not originate exclusively from the right side of the political spectrum. Some organizations and individuals identifying with the left are also active proponents of restraints on artistic freedom. For example, certain artwork dealing with race or ethnicity has been characterized as hate speech by some civil rights organizations, and some women’s rights activists have spoken out against art that depicts women in sexual situations.
Breach of Exhibition Contract Artistic freedom is also challenged when a presenter or site manager backs out of an agreement to present art because of the content or viewpoint of the work. The atmosphere of controversy surrounding the arts in recent years has created a cautionary urge to avoid conflict or loss of funding on the part of some presenters. The presenter may be a private organization or a governmental
body such as a city hall or public university art gallery. Federal, state, and local government has vast capacity to protect, enhance, or restrict freedom of artistic expression. The government controls the use of public performance and exhibition spaces and regulates broadcast and telecommunications media. The government funds the arts directly and indirectly. And the government may enact laws that directly or indirectly restrict the creation or exhibition of art, even if the art is produced for private purposes and exhibited privately. It is important to note that what the government is legally
entitled to do, what it will do, and what it should do as a matter of
public policy are very often not the same. If you believe the government
has acted unlawfully, you may be able to get relief through litigation.
However, even lawful government actions need not go uncontested. Art and artistic expression is considered “speech”
and is thus constitutionally protected by the First Amendment to the United
States Constitution. Although the First Amendment very strongly limits
the government’s ability to restrict artistic expression, the limitations
are not absolute. In many circumstances the government is permitted some
control over artistic expression. Some Types of Speech Are Entitled to More Protection Than Others All speech is not treated with equal respect under the First
Amendment. Generally, political speech is entitled to the greatest constitutional
protection, and advertising—commonly identified as “commercial
speech”—is entitled to the least. Most other forms of speech
fall somewhere in between. In some situations, courts deciding the legality
of a restriction on free speech balance the value of the speech against
the importance of the governmental interest the restriction on expression
is intended to serve. Expression that is considered by courts to be on
the “margins of constitutional protection,” such as go-go
dancing, may have little weight in these balancing tests. Some forms of speech are not entitled to any constitutional
protection at all. The government’s ability to prohibit and regulate
these categories of expression is not limited by the First Amendment. Obscenity Obscenity is defined as speech that, when considered as a
whole, appeals to a prurient or morbid interest in sex (based on “community
standards”) depicts or describes in a patently offensive manner
(again, according to local community standards) sexual conduct or organs
specifically defined by the applicable law, and, considered in its whole
form, is devoid of serious literary, artistic, political, or scientific
value. If art with acknowledged artistic value violates community standards,
it may be considered “indecent,” but it is not “obscene.”
“Indecent” material is protected by the First Amendment (although
it may be considered to be “on the margins” of protected speech).
“Pornography,” which has no precise definition but is commonly
used to describe material with explicit sexual content, is not a legal
term and should not be used interchangeably with “obscenity.”
Child pornography is the lewd visual depiction of the genitalia of minors or any visual depiction of minors engaged in sexual activity. This determination is made without reference to community standards of decency. The Supreme Court has not decided whether it is relevant that the work as a whole have any literary, artistic, political, or scientificA 1996 federal law bans value. It is also not clear whether images simulating minors in graphic sexual activity (using computer-generated images or young-looking adults). The law is currently being challenged in the courts. Child pornography laws vary significantly from state to state. Federal law defines a “minor” as any person under 18.
“Harmful to Minors” Art not considered legally obscene for adults may nevertheless be defined as “obscene to minors” or “harmful to minors.” Lawmakers may prevent youth under 17 from receiving material—except from their parents—that predominantly appeals to unwholesome sexual interests of minors, is patently offensive to the prevailing standards of the adult community as to what is suitable for minors, and is devoid of any serious value for minors. Generally, not every depiction of nudity can be deemed “harmful to minors,” but sexually graphic language alone may qualify. States commonly restrict the placement and display of these materials to ensure that only adults can access them. For example, a law may prevent art books featuring adult material from being sold to minors or displayed in such a way that minors can easily peruse them.
Defamation Defamation is the malicious harming of another’s character
or reputation by the publication of false facts either intentionally,
negligently, or with reckless disregard for its truth. It includes both
libel, which is written, and slander, which is spoken. Defamatory speech
generally is not protected by the First Amendment. However, the First
Amendment restricts the extent to which defamation laws can be used by
public figures to punish speech on matters of public interest. Nor are
expressions of opinion considered defamation. Specific legal tests govern
the extent to which nonpublic figures and expression regarding matters
not of public concern are legally actionable defamation. Fighting Words Expression that is designed and appears likely to provoke
an immediate unlawful response from a specific and identifiable audience
is not protected by the First Amendment. This is the famous “shouting
‘fire’ in a crowded theater” scenario, although the
doctrine is much more narrow than those who frequently invoke it contend.
To date, only spoken wordshave been considered “fighting words.”
The “fighting words” doctrine has not been applied to visual
or literary arts. Public Display Spaces Government-owned public property is frequently the site of both formal and informal art exhibitions and performances. Galleries or theaters may be on land owned by the government or located in municipal buildings or public universities. Parks and plazas are often used for arts festivals and installations. Artists may choose to exhibit their works in parks or on public sidewalks. Generally, the government cannot impose unreasonable or viewpoint-based
restrictions on art in public spaces. The extent to which the government
may place viewpoint-neutral restrictions that nevertheless discriminate
against the subject matter of the art depends on whether the location
of the exhibition or performance is considered a “public forum.” A public forum is public property that has been traditionally open to free expression or specially designated as a place for expression. Public property that fits neither of these categories is considered a nonpublic forum. Public forums are not limited to land or real property. In a public forum, the government may not completely ban expression, but may enforce reasonable time, place, and manner restrictions. Time, place, and manner restrictions are exactly that: regulations on the time of expression, the specific placement of a presentation within a public area, and the manner in which the presentation is conducted. Restrictions on volume, the number of audience members, and the number of presenters are examples. Time, place, and manner restrictions are permissible if they are reasonable and “content-neutral.” A regulation is considered content-neutral as long as it serves a purpose unrelated to the content of the expression, even if enforcement of the regulation affects some messages but not others. Reasonable time, place, and manner restrictions must leave open ample alternate channels for expression. Whether or not there are ample alternatives is a very specific determination that will vary for each situation. The key question is whether the speaker’s ability to communicate effectively and reach the intended audience is threatened. Time, place, and manner restrictions must also be narrowly tailored to serve a significant governmental objective. That is, the governmental objective would be achieved less effectively without the regulation. The restriction need not be the least restrictive means available for achieving the objective but must not be substantially broader than necessary. However, a restriction may be too narrow if there are numerous and obvious less burdensome and more precise alternatives. In this respect, it is most relevant whether the regulation bans substantial expressive activity that does not contribute to the identified problem. The government may place content-based restrictions on expression in a public forum only if the restriction is no greater than necessary to fulfill a compelling governmental interest. For example, a town could allow artists to paint images on the sidewalks but ban an artist from painting mock utility markings there because public health and safety concerns require that utility locations be clearly indicated. A viewpoint-based restriction is presumed to be unconstitutional unless it can be shown that it is necessary to fulfill “a compelling governmental interest” and is the only method for achieving that goal. Therefore, the government cannot disallow the performance of a play that negatively portrays an elected official but allow plays that present a favorable portrayal.
Traditional Public Forums Traditional public forums are public areas that have been traditionally used for purposes of assembly, communication, and discussion such as parks, plazas, and sidewalks. These areas have been given this special constitutional protection in recognition of their historical role in and principal purpose of providing a place for the free exchange of ideas.
Designated Public Forums A designated public forum is public property that the government has intentionally made available for expression, even though the property has not traditionally had as its purpose the free exchange of ideas. However, an area is not considered a designated public forum merely because the government allows some speech activity there. For example, the U. S. Army does not open up the grounds of a military post to all musical performances because it allows the army marching band to perform there. Common examples of designated public forums might include a city hall art gallery or a theater in a public museum. Some courts permit the government to dedicate a public space for a particular medium or subject matter, thereby creating a “limited” or “dedicated” public forum. Content-discrimination that preserves the purposes of a limited forum may be permissible. A city hall art gallery dedicated to artwork depicting landscapes may be permitted to exclude other subjects and may also ban live performance. A theater in a municipally owned children’s museum may be permitted to limit performances to works intended for children. The limitations must be clearly defined and not merely left up to the unguided discretion of a governmental employee. Other courts will consider these areas with substantial content restrictions to be nonpublic forums, as discussed below. A government may not, however, dedicate an area to the exhibition of a particular viewpoint unless the government itself is the exhibitor, or the restriction is necessary to further a very important governmental interest.
Nonpublic Forum All other public property is considered a nonpublic forum. The government may ban expression altogether in a nonpublic forum—as long as the prohibition is reasonable—and may restrict expression that is not compatible with the forum’s purpose. However, the restrictions cannot be unreasonable or an effort to suppress expression because of opposition to the speaker’s viewpoint. A viewpoint-based restriction is illegal unless it is necessary to fulfill a compelling governmental interest. Thus, a mayor may prohibit all city employees from singing in a city hall conference room, but may not ban only the singing of songs that advocate an unpopular political position.
Government Funding and Sponsorship of the Arts The government directly funds art in many ways—the National Endowment for the Arts; national, state, and local museums, symphonies, and theaters; and the Library of Congress are just a few examples. The government also indirectly supports arts by, for example, funding public universities, granting scholarships and student loans to art students, and granting tax and postal benefits to nonprofit arts organizations. The extent to which the government may legally restrict artistic expression that it funds is unclear. Generally, it appears that whatever restrictions the government places on the use of its funds should be clearly enunciated and not left to the unfettered whim of officials.
Governmental Regulation of Private Property Government regulates the use of private lands through zoning laws. These laws may in some situations abridge free expression. Zoning laws generally do not violate the First Amendment if they are content-neutral time, place, and manner restrictions that serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication. Sometimes private property takes on so much of the character of public property that it is considered a public forum. Expression in these areas may be limited as if these areas were public. The Supreme Court has recognized that a privately owned company town is subject to the same rules as a public town. Some states have recognized that shopping malls must treat sidewalks and hallways the same as public streets and sidewalks.
Criminal Laws The government may not criminalize expression protected by
the First Amendment. But the types of expression discussed above that
are not entitled to First Amendment protection are commonly criminalized.
Most states have criminal laws regarding the distribution of obscene material
or child pornography, and many state and local governments restrict the
ways in which children are provided access to “adult” materials.
Criminals laws, such as trespass laws, also may have the incidental effect
of restricting expression. Laws such as these that, in combating criminal
activity unrelated to artistic expression, indirectly limit artistic expression
are valid as long as the law is reasonable and applied no more broadly
than necessary to prevent the criminal conduct. Other Laws In some situations, laws that have other purposes may incidentally restrict artistic freedom. A law unrelated to the suppression of speech may be applied to restrict expression no more than is necessary to further the substantial governmental interest that underlies the law.
Types of Art Most Frequently Challenged Challenges to artistic freedom are most frequently based on
viewpoint or subject matter. Nudity and sexuality, religion, race, violence,
and politics are the most common flash points. As can be seen from the
examples below, it is often difficult to anticipate what type of art will
rouse someone’s ire enough to cause her or him to publicly protest
its display. Sexual Content Sexual content is perhaps the most common source of controversy. Art depicting nudity or addressing sexuality is challenged as being inappropriate for minors and being morally corrupt in and of itself. Critics often do not distinguish between graphic anatomical depictions and stylized, nonexplicit representations of the human form. Nor do they distinguish between nudity and eroticism. Male nudity, particularly erect penises, is targeted disproportionately to female nudity. Homosexuality can also be a bright red flag. Depictions of women in submissive, exploitative, or violent sexual situations have been targeted by some women’s rights organizations that equate such images to “fighting words.” Images interpreted as masturbation remain largely taboo. As discussed earlier, art incorporating images of nude or provocatively posed minors or implying minors in sexual situations is frequently challenged as child pornography.
Religious or Anti-Religious Content Art with religious themes or imagery, or anything that might be interpreted as such, is also frequently challenged. Challenges are leveled at works interpreted as demeaning a particular religious belief as well as those interpreted as promoting atheism, paganism, or Satanism.
Violence Art about or including physical violence is frequently challenged. The primary claim by critics is that violent descriptions or depictions cause violent behavior in children and certain adults; a claim that is not borne out by scientific research. Legal challenges have focused on violence as being “fighting words,” but courts have not found that artistic renderings of violence are likely or designed to cause imminent unlawful conduct. Images and descriptions of gang violence and what critics perceive to be anti–law enforcement sentiment have drawn particularly zealous challenges, as expected, from the law enforcement community. Certain women’s rights organizations and activists commonly challenge depictions of rape and other violent acts against women, including violent sexual imagery. Challenges to violent content have arisen with respect to each arts medium.
Race and Ethnicity Concerns regarding racial and ethnic equality or sensitivity drive many challenges to artistic freedom. Some artistic expression about race is stigmatized as “hate speech” or “politically incorrect” in the same way that some expression about sex is tagged “pornography.” These challenges can place civil liberties organizations in a bind between their constituents who believe that such expression does great damage to hard-won civil rights gains and those who believe that such expression must be tolerated and defended. Often the message is simply misunderstood.
Political Content Art with political content is subject to attack by those who disagree with the political views expressed in the work as well as those who believe that any political content is inappropriate in art. The belief that public monies should not be spent on political activity has led to challenges to government support of artwork with strong political content. A wide range of topics, for example, abortion, communism, political parties and figures, the environment, and war, may incite challenges.
Patriotism Art that addresses issues of American heritage is commonly challenged as unpatriotic or as an affront to veterans. The most frequent examples of these challenges are those aimed at work that incorporates imagery of the American flag. The Supreme Court has held that physical desecration of the flag, of which some artists using flags or flag imagery have been accused, is constitutionally protected expression. However, a constitutional amendment that would allow states to criminalize flag desecration is regularly put forward. Resulting legislation could well prohibit artistic uses of the flag.
Based on Name Only It is not unusual for artwork to be attacked based solely on its name with little reference to the content of the work and regardless of whether the title itself contains profanity. In Annville, Pennsylvania, organizers were forced to cancel a multimedia exhibit when concerns arose in the local community about the exhibition’s title: “Sex Is Art” (Fig. 15). A local official, while admitting that he had not seen any of the works to be included in the exhibit, declared that “our community standards don’t accept this filth.” Artist Ellen Zahorec canceled the multi-artist show—”Immaculate Misconceptions” (Color Plate 12)—she had coordinated for exhibition at Northern Kentucky University’s Main Gallery, after a storm of controversy erupted over the “blasphemous” title. Gallery officials in Boston accepted Jerry Hooten’s linoleum print Wishbone (Fig. 16)—depicting a shirtless male affectionately carrying another shirtless male on his back—for inclusion in an exhibit celebrating gay and lesbian pride on the condition that Hooten came up with a less suggestive title. Hooten declined.
Or for Any Reason Sometimes it is truly difficult to anticipate what is going to offend a reader, a viewer, or an audience member. In 1996, two works by photographer Beth Wesson (Fig. 17) were rejected for a planned exhibit at the Midtown YMCA Photo Gallery in New York because they were deemed “too disturbing and too frightening” for children and mentally ill individuals who might pass by the exhibit. Education officials in California took exception to Alice Walker’s story Am I Blue? because they considered it “anti–meat eating” and moved to remove an excerpt of it from a tenth grade standardized test. They relented following pressure from free speech advocates. In 1997, a California legislator, with the endorsement of Vice President Gore, called for public hearings to educate the film industry about the consequences of depicting tobacco use in movies. Proponents of the measure claimed that such depictions caused young children to start smoking.
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Protesters Destroy Jock Sturges’s Books
