adapted from THE AMERICAN CIVIL LIBERTIES UNION
ARTS CENSORSHIP PROJECT NEWSLETTER

Vol. 4, No. 2, Spring 1995

(deleted text)

Prosecutions Continue: The Ever-Elastic Definitions of Obscenity & Pornography [4]

As the "culture wars" continue to rage, criminal prosecutors are expanding their definitions of "obscenity" and "child pornography" in order to suppress artistic expression that touches on sexual themes. In past issues of the newsletter, we have described the Cincinnati, Ohio, prosecution of a gay bookstore for renting the film Salo, by the Italian director Pier Paolo Pasolini, one of the towering figures in cinema history; the first federal obscenity prosecution of an adult computer bulletin board; a "child endangerment" prosecution of a New Jersey man for nude photos he took of his daughter as part of an assignment for an art photography class; and a U.S. Justice Department crusade to expand the federal child pornography law to cover, for the first time, images of clothed minors, who are not engaging in any sexual activity, if the images are deemed to be "lascivious."

The results in these cases so far have been mixed. Although a local judge refused to dismiss the charges against the Pink Pyramid bookstore in Cincinnati for renting Salo, he did rule that the police had illegally seized the film, and therefore could not use it at trial, therebyeffectively disposing of the case. That ruling is now on appeal.

In the federal "cybersex" case, U.S. v. Thomas, the ACLU and a number of other groups concerned with free speech in cyberspace are preparing to file friend-of-the-court briefs arguing that the "local community

standards" test for obscenity cannot constitutionally be applied to a medium that is at once as global, and as private, as computer bulletin board communications.

The New Jersey "child endangerment" case has been resolved satisfactorily for the photographer, Ejlat Feuer, if not in a manner likely to calm the fears of others who photograph child nudes. After the state court denied a motion to dismiss the indictment, the New York Times ran two prominent stories about the case, and substantial additional publicity followed. At this point, the prosecutor evidently realized that a conviction would be unlikely, given Feuer's utter lack of pornographic intent, and offered a "pretrial diversion" program to make the case go away.

U.S. v. Knox, the child pornography case involving films of clothed minors, had a distressing end when the Supreme Court declined to hear an appeal from a federal appeals court decision affirming Knox's conviction. By this time, the Clinton/Reno Justice Department had completely reversed its initial position that the federal law at the very least required either actual sexual conduct or nudity. The politically driven result in this case is that artists, advertisers, and others who photograph children will have no way of knowing when a zealous prosecutor may decide to subject them to criminal charges because she or he considers a fetching picture of a minor to be "lascivious."

Meanwhile, police and prosecutors in Puerto Rico have jumped on the expanding obscenity bandwagon in recent months, filing charges in early January against "Condom Mania," a San Juan store that sells cards, magazines, and novelties like penis-shaped gu ns and candies; then, about a month later, charging several music stores with obscenity for selling rap music whose lyrics address drugs and police violence as well as sex. The censorship campaign appears to be orchestrated by Morality in Media, which has close links to the San Juan Police vice squad. Local ACLU activists are looking into the possibility of a civil rights lawsuit to restrain the unconstitutional police conduct.

Supreme Court Ponders Free Speech Issues;
Results Will Affect Students,Artists, Protesters [5]

The Supreme Court is considering several cases this term that will have important repercussions for artists and others exercising First Amendment rights. The ACLU is direct counsel in one of these cases and is participating as amicus curiae in the others.

Rosenberger v. University of Virginia, which was argued on March 1, raises a conflict between the principles of free speech and separation of church and state in the context of student activity funding at a public university. Wide Awake, an evangelical Christian paper, was denied student activity funds because university guidelines prohibited any financial aid to "religious activity." Wide Awake filed suit, claiming that the university's ban constituted "viewpoint discrimination" in the operation of a public subsidy program, since student publications with secular viewpoints on controversial issues could receive funding.

Wide Awake's argument is significant because government spends money to support many forms of free expression in addition to public universities: arts funding, scholarly research, public parks, theaters, museums, libraries. The ACLU and other free-speech groups have argued in many cases, and the courts have generally agreed, that just because the government may be providing support for an activity does not mean that it may dictate what can or cannot be said, written, or presented.

The Establishment Clause of the First Amendment, however, prohibits government from directly supporting religion with taxpayers' money. The purpose of the Establisment Clause is to preserve religious freedom by keeping government power away from private religious choices -- preventing government from either assisting, or interfering with, particular religions. The ACLU argues in its brief that this principle of church-state separation mandates an exception to the usual rule of "viewpoint neutrality" in government funding programs.

The principle is especially important in this case, where the lawyers representing Wide Awake are arguing to overturn decades of Supreme Court precedent invalidating government funding of parochial schools or other forms of religious indoctrination. Maintaining the ban on public funding of religion doesn't inhibit discussion of religious history or beliefs in public school classrooms, libraries, museums, or anywhere else; it only prevents government entanglement in religious affairs and the use of government power to establish the kind of "Christian America" that some politicians and pressure groups are calling for.

Irish-American Gay, Lesbian & Bisexual Group of Boston ("GLIB") v. Hurley involves a Massachusetts court ruling that the Boston St. Patrick's Day Parade, sponsored by a private veterans' group, is actually a "public accommodation" within the meaning of Massachusetts law, and that the veterans therefore cannot exclude "GLIB" members from participating in the parade because of their sexual orientaton. The veterans argue that a court order telling them whom they may invite or disinvite to their parade violates their First Amendment right to express their own "traditional values." In a similar New York case, the ACLU agreed that the First Amendment protected the right of any group, including a bigoted and homophobic group, to express its views in a parade.

The Boston case is complicated by the fact that tradi-tionally, the St. Patrick's Day parade was sponsored by the city; it was only quite recently, after a gay rights group expressed its desire to join, that the city delegated the administration of the parade to a private group. The ACLU's Supreme Court brief thus argues that the question of government involvement in the veterans' discrimination should be reconsidered. If there is government involvement, then discrimination against the gay group based on its viewpoint would violate the First Amendment. On the other hand, if the parade is truly privately sponsored, the veterans' First Amendment right to exclude viewpoints with which they disagree must be protected.

It's worth noting that after the courts upheld the New York Order of Hibernians' right to exclude gay rights messages from their parade, most of that city's political leaders chose to march not with the Hibernians but with an alternative parade that included gay groups.

In Capitol Square Review Board v. Pinette, the Ohio ACLU is defending the First Amendment right of any group to express any message it wants, including a religious message, on government property that has traditionally been a "public forum" for free speech. In this case, the Ku Klux Klan sought permission to display a cross in a public park area near the state capitol. Because the area had long been treated as a public forum for the expression of all kinds of views, both secular and religious, there was little danger that the government would be perceived as endorsing the message of Christianity conveyed by the cross. If there were such an appearance of endorsement, or if the government owned or paid for the cross, then permitting religious symbols even in a public forum would violate the First Amendment's Establishment Clause.

This case is different from Rosenberger v. University of Virginia (above) because no public funds are being spent directly to support the religious message. The fact that the Klan wanted to erect the cross makes the case emotionally charged, but the constitutional principles shouldn't change simply because a racist or otherwise disreputable group is seeking to exercise its First Amendment rights.

Kimberlin v. Quinlan involves the question of how much evidence a plaintiff in a First Amendment case must have about the motives of the government officials who allegedly violated his free speech rights. Kimberlin is the federal prisoner who claims to have sold marijuana to Dan Quayle, and who was placed in administrative segregation when the press wanted to interview him about his allegations. Whether the prison officials violated his free speech rights depends on their motivation for placing him in segregation: if their intent was to silence him, then their action was unconstitutional.

The problem for Kimberlin, as for many others who claim First Amendment violations because of censorship, is that direct evidence of a government official's state of mind is often hard to come by. Requiring plaintiffs at the outset of a lawsuit to produce such evidence, as the lower court did in this case, will defeat many meritorious claims and leave victims of censorship without judicial remedies. The ACLU's brief argues that no higher threshold ought to apply to First Amendment cases than to any others.

On February 21, the Supreme Court decided Lebron v. Amtrak. The Court ruled that Amtrak, which was created by the federal government, and is government-financed and controlled, is the equivalent of a government agency and thus must abide by First Amendment standards. Amtrak had refused artist Michael Lebron permission to purchase advertising display space in New York's Penn Station because of the controversial content of his artwork attacking the Coor's Beer Company for supporting the Nicaraguan Contras. The case now goes back to the U.S. Court of Appeals to decide whether Amtrak's censorship of Lebron's art violated his First Amendment rights.

ACLU Opens Forum on America Online [9]
ACLU Arts Censorship Project
132 W. 43rd Street, New York, NY 10036
(212) 944-9800, Ext. 704, 706
Project Director: Marjorie Heins
Staff Assistant: Kenia Olivera

Funding for the Project is provided by the Nathan Cummings Foundation, the Robert Sterling Clark Foundation, the Rockefeller Foundation, the Nathan Tannenbaum Foundation, and the Albert A. List Foundation.