CENSORSHIP & SEXUAL CONTENT

 

CENSORSHIP

"If there is a bedrock principle underlying the First Amendment, it is that government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

 

FUNDING

Advocates for the Arts v. Thomson (1st Cir. 1976)

NEA Policy: "to help create and sustain not only a climate encouraging freedom of thought, imagination and inquiry but also the material conditions facilitating the release of this creative talent." Material conditions: grants-in-aid to groups and individuals whose artistic endeavors "have substantial artistic and cultural significance, or are otherwise worthy of support."

 

The NH Commission on the Arts had given a grant-in-aid ($500) to a literary magazine, "Granite." The second application for a grant of $750 was approved, then refused after "executive review." There was an objection to a poem which had already been printed, "Castrating the Cat."

Plaintiffs are claiming this is a violation of their First Amendment rights.

PP. 797 and 798

 

CAPTIVE AUDIENCE

Close v. Lederle (1st Cir. 1970)

The plaintiff, an art instructor at U Mass., was invited to exhibit paintings in the corridor of the Student Union for 24 days. Five days into the exhibition, they were removed.

Trial court: They were offensive, but not obscene. This is a violation of the artist's First Amendment rights.

Appellate court: Captive audience problem. Freedom of speech must recognize . . . freedom not to listen. pp. 990-991

Piarowski v. Illinois Community College (7th Cir. 1985)

The plaintiff's stained glass windows were part of a faculty show in a gallery off the mall at the college. Three of the windows were controversial (in the style of Aubrey Beardsley, imitations of his illustrations for Lysistrata. The orginal Beardsleys are in the Victoria and Albert Museum in London).

After 10 days the College ordered the windows to be moved to another exhibit space on the 4th floor (which was already being used for a photo exhibit).

The faculty closed the exhibit. See pp.628- 630 and 632.

 

Henderson v. City of Murfreesboro, TN (M.D. Tenn. 1997)

The City established an Art committee to choose works of art to be exhibited in the rotunda of City Hall. See p. 1295.

*"a work must show mastery of the art form or craft represented"

*"it must be an original work of art"

*by a local artist, a former resident of TN, or any artist using TN as subject matter

*the Committee will be responsible for accepting/refusing works submitted

The plaintiff's painting, "Gwen" is offensive to an assistant school superintendant. It is removed and a new criterion is added to the Committee's list: art which "infringes" the City's employment policies will be prohibited.

Court: The artist's First Amendment rights have been violated (and is awarded nominal damages of $1 and attorney fees), but she has no standing to challenge the new policy.

 

NUDE DANCING

Earlier Supreme Court Case on topless dance: Doran v. Salem Inn (1975)

Justice Rehnquist:

"Although the customary 'barroom' type of nude dancing may involve only the barest minimum of protected expression, we recognized . . . that this form of entertainment might be entitled to First and Fourteenth Amendment protection under some circumstances."

"The local ordinance here attacked not only prohibits topless dancing in bars but also prohibits any female from appearing in 'any public place' with uncovered beasts. There is no limit to the interpretation of the term 'any public place.' It could include the theater, town hall, opera house, as well as a public market place, street or any place of assembly, indoors or outdoors. Thus, this ordinance would prohibit the performance of the 'Ballet Africains' and a number of other works of unquestionable artistic and socially redeeming significance."

INDIANA STATUTE

No legislative history

Nudity is defined as "the showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the nipple, or the showing of covered male genitals in a discernibly turgid state"

 

Barnes v. Glen Theatre (1991)

Justices Rehnquist, Kennedy and O'Connor:

The test to use is the O'Brien test

*"the government regulation is within the constitutional power of the government to enact"

*"the regulation furthers an important or substantial government interest"

*"the government interest is unrelated to the supression of free expression"

*"the restriction is no greater than is essential to the furtherance of the government interest"

Justice Scalia:

The statute regulates conduct, not expression. No First Amendment analysis is required.

Justice Souter:

Secondary effects analysis [where there is this type of nude dancing, there is likely to be prostitution, sexual assault and other criminal activity] would not apply to such artistic performances as "Hair," "Equus," or "Salome."

Justices White, Stevens, Blackmun, Marshall, dissenting:

The statute is unconstitutional.

*It doesn't further morality

*The harm of nudity is the offense it causes to others; here patrons pay to see it

*The restriction is too large; forbid the serving of alcohol or disperse such establishments throughout the community (zoning)

ALL OF THIS LEAVES OPEN THE QUESTION: HOW DO/SHOULD COMMUNITIES AND STATES REGULATE NUDITY IN "FINE ART" DANCE?

Case Study: Pilobolus Dance Theatre