"If art is to nourish the roots of our culture, society must set the
artist free to follow his vision wherever it takes him."
-- John F. Kennedy
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.
"You would not believe how, from the very commencement of my
activity, that horrible censor question has tormented me! I wanted
to write what I felt; but all the time it occurred to me that what I
wrote would not be permitted, and involuntarily I had to abandon the
work." -- Tolstoy
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
** 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
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
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, 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
"I believe that censorship only springs back against... anyone who
wants to change society." -- Erica Jong
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
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
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 and 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 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.
"If the First Amendment means anything, it means that a state has no
business telling a man, sitting along in his own house, what books he
may read or what films he must watch." -- Justice Thurgood Marshall
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 nonpornographic 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
all 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 should decide which lyrics or movies are not suitable
for your children? The government? Self-appointed busybodies? Or
should 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.
The American Civil Liberties Union
132 West 43rd Street
New York, N.Y. 10036
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