American Civil Liberties Union Briefing Paper Number 14
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
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
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
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
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
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
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
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
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
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
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
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