Harmful to Minors

Government may regulate speech to promote a compelling state interest. Protecting minors’ physical and psychological well-being is such a compelling interest, and most states have statutes regulating material deemed “harmful to minors.” However, even regulations enacted to protect children must satisfy the requirement that they employ the least restrictive means to achieve that goal. Among other things, this guards against using a child-protection rationale as a pretext, and protects the rights of adults to access material that is considered unsuitable for minors.

Recently, the Communications Decency Act (CDA), which was enacted with the express purpose of protecting children from indecent online communications, was held to violate the First Amendment. The Supreme Court criticized the ambiguous reach of the law, and found there was a less restrictive means of protecting minors: parental controls and filtering software. The Court said CDA would have had a chilling effect and would be an outright impediment to the exercise of many adults’ First Amendment rights. The Court stated, “we have repeatedly recognized the government interest in protecting children from harmful materials. …But that interest does not justify an unnecessarily broad suppression of speech addressed to adults…. ‘[R]egardless of the government’s interest’ in protecting children, ‘[t]he level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox.’” (Reno v. ACLU)

A DECENT STATE: Art & Policy

A DECENT STATE: Art & Policy Symposium

Presented by the Tom of Finland Foundation at the 16th Annual West Hollywood – Los Angeles Erotic Art Fair Weekend, March 27th, 2011. Co-Sponsored by the California LGBT Arts Alliance

The theme of this panel discussion was the government’s role in determining what the public sees. The discussion focused on censorship of LGBT and erotic art by the NEA and NEH after the Mapplethorpe controversy of the late 1980’s, the creation at that time of the National Endowment for the Arts’ “decency clause” and the question “Can publicly-funded institutions be politically neutral spaces?”

The symposium was moderated by Sharp, VP/Curator for the Tom of Finland Foundation. Participants included: Ivy Bottini, Artist and activist; Greg Day, Southern California Coordinator, California LGBT Arts Alliance; Dallas Dishman, Commissioner, West Hollywood Art & Cultural Affairs Commission; Diane Duke, Executive Director, Free Speech Coalition; Leo Garcia, Executive Director / Artistic Director, Highways Performance Space and Gallery; and Abbe Land, Councilmember, City of West Hollywood.

This was a lively discussion about strategies for promoting LGBT arts and for fighting government censorship. The panel also discussed the impact on the LA LGBT arts community of LACMA and the J. Paul Getty Trust’s recent acquisition of 2,000 of Mapplethorpe’s most famous photographs including the “XYZ Portfolio” and the Getty Research Institute’s ownership of the Mapplethorpe archive.


Culture warriors’ cry to art museums: Toughen up against political pressure

By Jacqueline Trescott
The Washington Post

In the aftermath of the hys­teria around the Robert Mapple­thorpe exhibition 22 years ago, the museum world has become timid and predictable, veterans of that battle argue.

“I do think the museum world has became very safe,” said Dennis Barrie, the former director of the Contemporary Arts Center in Cincinnati. The center featured Mapplethorpe in 1990, and the center and Barrie paid a price. The local sheriff staged a raid, setting off a round of national news stories and protests, and Barrie was charged with obscen­ity. He was acquitted but left the museum.

So when the National Portrait Gallery opened a show last October on same-sex art and identity, the art world hoped it would reverse that trend of self-censorship. Instead, the artistic merits of the show were overshadowed by the Smithsonian’s decision to remove a video by gay artist David Wojnarowicz after complaints from conservative pundits and politicians.

The action was called “shameful” by artist and Yale School of Art Dean Robert Storr, who opened a meeting Saturday at the Corcoran Gallery of Art to discuss the aftermath of the two incidents decades apart.

“The culture wars are back,” Storr said, speaking to 100 people. Critics are insatiable and clever, he said. “We have to be cleverer.”

Veterans of the political and cultural frenzy over Map­ple­thorpe spoke of lessons learned. “You think you are through with politics — you are never through with politics,” Barrie said.


Revisiting the Culture Wars and Looking Ahead

Using the occasion of the 20th anniversary of the National Endowment for the Arts’ “decency clause,” National Coalition Against Censorship initiated a conversation about the arts and their place in society today. Two panels, organized in collaboration with the Vera List Center for Art and Politics, brought together survivors of the culture wars and culture workers who are coming to creative maturity today. The story went like this: once upon a time artists and arts organizations could depend on government grants that gave them room to experiment and explore ideas, perhaps even to try and change the world, but public arts funding was relentlessly attacked.

Conservative legislators crucified the work of controversial artists on the Senate floor, and the NEA was forced to become an agency funding mainly “safe” programs. The good news is artists today still believe they are changing the world and they still create work that questions certainties (albeit with the awareness that it may be attacked, even censored). They no longer, however, have public funding as an option, and institutions that depend on public funding are all too much aware of the strings attached. As the “decency” clause targeted primarily work dealing with sexuality, the live events concluded with a screening and discussion of films challenging taboos around the representation of sex (co-sponsored by the BFA Department of Visual & Critical Studies at the School of Visual Arts). The conversation continues online through an ongoing series of video interviews with artists and curators worldwide, Power, Taboo and the Artist.

[In 1990, Congress amended the statute governing the National Endowment for the Arts to require that the NEA chairperson consider “general standards of respect and decency for the diverse beliefs and values of the American public” when awarding art grants. Four artists—Karen Finley, John Fleck, Holly Hughes and Tim Miller, known collectively as the “NEA 4″—sued in federal court, claiming the so-called “decency clause” violated the First Amendment and forced artists to engage in self-censorship in order to obtain NEA funding.

The Supreme Court, in 1998, upheld the “decency” standard for federal grants to the arts, which requires the NEA to take into account “general standards of decency and respect for the diverse beliefs and values of the American public” when making grants. But the 8 to 1 decision held that the “decency” standard is only advisory, and cannot be used to censor controversial art or ideas. Justice Souter, the lone dissenter, said the “decency” clause violates the First Amendment: “A statute disfavoring speech that fails to respect Americans’ diverse beliefs and values’ is the very model of viewpoint discrimination.]