American Civil Liberties Union Briefing Paper Number 14 +----------------+ ARTISTIC FREEDO

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American Civil Liberties Union Briefing Paper Number 14 +----------------+ ARTISTIC FREEDOM +----------------+ Today, across the cultural spectrum, artistic freedom is under assault. Free expression in popular music, photography, painting, cinema and other arts is threatened by pressure from lawmakers, prosecutors and self-appointed guardians of morality and taste. Succumbing to that pressure, more and more music stores, museums, schools, theaters, television stations, bookstores and video shops are restricting the display or availability of images and words deemed to be offensive to one group of citizens or another. The roots of contemporary efforts to curb free expression in the arts reach back to the early 1980s, when a backlash arose against the cultural freedom of previous decades. Religious fundamentalists and others, with overt support from the administration of President Ronald Reagan, began to advocate censorship of books, films and television in an effort to enforce cultural conformism. Today, we are reaping the harvest of that backlash as rap singers and museum directors are prosecuted for "obscenity," performance artists are denied government grants and Congress passes new censorship laws. Artistic expression has come under attack in other periods of our country's history. In 1873, Congress passed a law that prohibited the mailing, shipping or importation of "obscene" and "immoral" matter. The law was used to ban the works of James Joyce, D.H. Lawrence, Voltaire and other great authors, as well as printed information about sexuality and contraception. The American Civil Liberties Union, founded in 1920, first confronted arts censorship in 1926 when the city of Boston banned 65 books, including Theodore Dreiser's _An American Tragedy_, Sinclair Lewis' _Elmer Gantry_ and Ernest Hemingway's _The Sun Also Rises_. The ACLU countered the city's action, which popularized the phrase, "banned in Boston," with a campaign to repeal Massachusetts' Blasphemy Act and end the censorship of plays and books. Defending artistic expression, which is one of our most basic freedoms, remains among the ACLU's highest priorities. Here are the ACLU's answers to questions often asked by the public about artistic freedom. ============================================================= What protects the work of artists from government censorship? ============================================================= Artistic creations, whatever their medium or message, and even if their content is unpopular and of poor quality, are protected by the First and Fourteenth Amendments to the United States Constitution. The First Amendment declares that "Congress shall make no law...abridging the freedom of speech, or of the press," and the Fourteenth Amendment extends that prohibition to state and local governments. The government is forbidden to suppress the creation or distribution of any music, play, painting, sculpture, photograph, film, or even comic book. Some legal scholars have argued that the First Amendment is only applicable to written or spoken _political_ expression, but the U.S. Supreme Court has long rejected that interpretation. In a 1948 decision, the Court stated: "We reject the suggestion that the constitutional protection for free speech applies only to the exposition of ideas. The line between the informing and the entertaining is too elusive...." ========================================================= When and how did the threat to artistic freedom emerge in this country? ========================================================= Supreme Court Justice William O. Douglas once observed that the First Amendment was "the product of a robust, not a prudish, age." For example, many of the Constitution's framers probably read and enjoyed John Cleland's 1748 best-seller, _Memoirs of a Woman of Pleasure_, better known as _Fanny Hill_. However, the Victorian Age brought extremely rigid and repressive moral standards into vogue in the English-speaking world, prompting both the British and American governments to begin applying sanctions to sexually explicit art and literature. In 1821, 30 years after adoption of the Bill of Rights, _Fanny Hill_ was banned in Massachusetts. In 1842, Congress amended the Customs law to prohibit the "importation of all indecent and obscene prints, paintings, lithographs, engravings and transparencies." In 1868, a ruling by England's highest court established a "bad tendency" test that was appropriated and used by U.S. state and federal courts until the 1930s: The government could ban any material if "the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall." In 1873, Congress passed the Comstock Law, named for Anthony Comstock, who led the Society for the Suppression of Vice. In its first year of existence, that law, which punished first offenders with a $5,000 fine and five years imprisonment, authorized the destruction of 194,000 "questionable pictures" and 134,000 pounds of books "of improper character." By 1900, criminal obscenity statutes were on the books in 30 states, and censorship of "immoral and indecent" works had become entrenched. ====================================================== How has the Supreme Court dealt with sexually explicit expression? ====================================================== In 1957, the Supreme Court announced, in the case of _Roth v. United States_, that obscenity is not constitutionally protected because it is "utterly without redeeming social value." In the same decision, the Court replaced the "bad tendency" test with a narrower one that declared a work of art obscene if, "to the average person, applying contemporary community standards, the dominant theme taken as a whole appeals to the prurient interest." For the next 16 years, the Court refined this definition while reversing many state obscenity convictions. In 1973, a Court grown weary of reviewing and reversing tried to formulate clearer guidelines for evaluating sexually explicit material. In the case of _Miller v. California_, a 5-4 majority declared that a work is obscene if, first, "'the average person, applying contemporary community standards,' would find that the work, taken as a whole, appeals to the prurient interest..."; second, "the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law"; and third, "the work, taken as a whole, lacks serious literary, artistic, political or scientific value." The _Miller_ standard remains in effect today, but no one knows exactly what it means. ========================================================== Why does the ACLU object to the obscenity exception to the First Amendment? ========================================================== The perception of obscenity in art is highly subjective. As Justice Douglas wrote, in his dissent in _Miller_, "what may be trash to me may be prized by others." By authorizing our courts to decide what is morally acceptable, we turn them into censorship boards that impose the personal viewpoints and tastes of judges and juries on the rest of society. Furthermore, formulating a precise definition of obscenity has proven to be impossible. Justice Potter Stewart summed up the problem with his famous one-liner: "I know it when I see it." That assurance is of small comfort to artists, writers, publishers and distributors, who must navigate the murky waters of obscenity law trying to predict what judges will think. The inherent subjectivity of _any_ definition of obscenity has led to the suppression of constitutionally protected expression. Sometimes the suppression is direct and well publicized -- for example, the 1990 conviction of a Florida record store owner for selling a certain album of rap music, and the prosecution, in the same year, of an Ohio museum director for exhibiting the works of a celebrated photographer. But even more pervasive is the "chilling effect" that vague standards have on writers and artists, pressuring them to engage in self-censorship to avoid running afoul of a legal definition that means different things to different people. The First Amendment enshrines the principle that freedom of thought and expression are essential to a free society. In practice, the First Amendment's guarantees mean that adults must be free to decide for themselves, without governmental interference, what to read, write, paint, draw, photograph, see and hear. =========================================================== But don't obscene and pornographic works cause anti-social, even violent behavior? =========================================================== No direct link between exposure to sexually explicit material and anti-social behavior or sexual violence has ever been scientifically established. In 1967, President Lyndon B. Johnson appointed a panel of experts to examine this issue. But after three years of extensive research, the National Commission on Obscenity and Pornography found no convincing evidence of a causal connection. Indeed, the commission concluded that the real problem is not sexual imagery but "the inability or reluctance of people in our society to be open and direct in dealing with sexual matters." The commission called for the repeal of existing obscenity statutes, except those concerning children, and recommended better sex education, better communication about sexual matters and more research. In 1985, President Reagan's Attorney General, Edwin Meese, convened another commission, stating that "re-examination of the issue of pornography is long overdue." The Meese Commission, chaired by a zealous anti-pornography federal prosecutor, held public hearings at which a parade of witnesses recounted, from behind a screen, tales of sexual abuse. The commission then declared that it had established a link between such abuse and pornography and proposed new censorship laws. Soon afterwards, several prominent scientists whose studies the Commission's report had cited disassociated themselves from the report, charging that their research had been misrepresented. Social scientists believe that, while a troubled upbringing and alcoholism appear to be strongly linked to sexual violence, it is virtually impossible to demonstrate that such violence is caused by pornography. In any case, violent criminals often claim to be inspired by non-pornographic material. Serial killer Theodore Bundy collected cheerleader magazines. John Hinckley stalked President Reagan after seeing the renowned film, "Taxi Driver." And several mass murderers claimed to have been inspired by passages in the Bible. As these examples suggest, blaming books or films for the acts of disturbed individuals is a simplistic approach that could destroy freedom without deterring crime at all. ==================================================== Even if the government can't suppress art, surely it shouldn't use tax monies to fund art that offends!? ==================================================== The Constitution does not _require_ the government to subsidize artists and private art institutions, so a government decision to end arts subsidies would not violate the First Amendment (although that decision would impoverish the nation's cultural life). But as Chief Justice William Rehnquist has said, the Constitution forbids the government, once it has established a subsidy program, to "discriminate invidiously" and "aim at the suppression of dangerous ideas" in its administration of that program. Government funds pay for our sidewalks and streets, but the government cannot decide which ideas and opinions are expressed there. An art subsidy program is like a government-funded street, library, park, or university: a public forum for the expression of diverse ideas. Art is inherently challenging and often provocative. If the government, fearing controversy, funded only art so bland that it offended no one, creativity would be stifled. ========================================================== Why does the ACLU object to movie ratings, music labeling, or other voluntary rating systems? Don't they give guidance to consumers, especially parents? ========================================================== "Voluntary" is a misnomer, given that the movie rating and music labeling systems were established to placate private pressure groups bent on censorship. As one commentator put it, such systems "amount to an elegant form of censorship -- elegant because it is censorship made to look like consumer information." Real information, such as periodicals that actually reviewed books, records and films marketed to young people, could be useful to parents. But rating and labeling systems that are based on vague, simplistic and overly generalized criteria do not really inform. In 1990 and '91, numerous state legislators proposed laws to require the labeling, and banning the sale to minors, of recordings that contain lyrics about sexual activity, drug or alcohol use, murder or suicide. By that standard, a host of operas and literary classics -- even the Bible -- might be labeled "For Adults Only." Instead of providing useful information, ratings and labels encourage artists who want to reach the broadest possible audience to censor their own works in advance to avoid restrictive classifications. By promoting this self-censorship, rating and labeling systems act as filters between us and the artist. ========================================================= But mustn't we protect our children from inappropriate messages and images, especially graphic sex and violence? ========================================================= Yes, but who decides which lyrics or movies are not suitable for your children? The government? Self-appointed busybodies? Or do you decide? Parents differ about what is appropriate for children; therefore, individual parents must be free to make decisions regarding their own children. A majority of the public agrees with that principle: A 1990 Gallup poll showed that 78 percent of Americans believe that parents should do more to protect their children from obscenity, but 75 percent did not want any new laws passed to restrict what the public could see or hear. =========================================================== Defending artists is fine, but why does the ACLU spend time and money defending pornographers and sleaze merchants? =========================================================== First of all, the ACLU defends freedom of expression, not the _content_ of expression. Second, if we grant the government the power to censor "sleaze," it must also have the power to decide what "sleaze" is. History reveals that the government tends to use such power overbroadly to censor controversial material by calling it "sleaze." Any involvement by the government in deciding which ideas are fit for public consumption robs you of your constitutional right to make that decision for yourself. Today's climate of intolerance harks back to the "Comstockery" of the late 19th century. Once again, a movement is afoot to stifle artistic freedom in the name of stamping out "indecency." >> Book banning in the public schools has targeted John Steinbeck's _The Grapes of Wrath_, Kurt Vonnegut's _Slaughterhouse 5_, J.D. Salinger's _Catcher in the Rye_, George Orwell's _1984_, _Tarzan_, _Little Red Riding Hood_ and the _American Heritage College Dictionary_. J.R.R. Tolkien's _The Hobbit_ has been accused of promoting Satanism, and Alice Walker's _The Color Purple_ has been charged with undermining family values. >> Nudity is being edited out of films by cable television stations, paintings of nudes are being excluded from art exhibits and theatrical works that include nudity have been banned, or altered, in localities around the country. >> Artists are feeling pressure from government funding agencies to steer clear of art that deals with issues of gender and sexuality. Censorship is an infectious disease. Permitting restraints on _any_ expression sets the stage for attacks on all expression that is artistically and/or politically controversial. The creative spirit must be free. When it is not, society suffers. A C L U American Civil Liberties Union, 132 West 43rd Street, New York, N.Y. 10036 ============================================================== ACLU Free Reading Room | A publications and information resource of the gopher:// | American Civil Liberties Union National Office | | "Eternal vigilance is the price of liberty"


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