Artistic Repression in America - artistic creations and the law - Column

Humanist, May, 1999 by Barbara Dority

My first "Civil Liberties Watch" column, which appeared in the September/October 1990 Humanist, was entitled "The War on Rock and Rap Music." It is, of course, a personal shock to realize that this was more than eight and a half years ago. But the greater offense is that, since that time, censorship of art in popular culture has not declined; it has intensified and expanded.

Whatever their medium or message and regardless of whether their content is unpopular or upsets some people or is of poor quality, artistic creations are protected by the First and Fourteenth Amendments to the United States Constitution. The First Amendment mandates that "Congress shall make no law ... abridging the freedom of speech, or of the press," while the Fourteenth Amendment extends that prohibition to state and local governments.

The government must maintain a "content neutrality" position regarding expression; it cannot limit expression just because any one person--or even the majority of a community--is offended by its content. In the context of art and entertainment, this means tolerating some works that we might find offensive, insulting, outrageous, or just plain bad.

The U.S. Supreme Court has interpreted the First Amendment's protection of artistic expression very broadly. It extends not only to books, theatrical works, and paintings but also to posters, television, music videos, comic books, and many other venues. Essentially, protection is granted to anything the human creative impulse produces, including nonverbal expression such as wearing a symbol on one's clothing, dancing (including erotic and nude dancing), or participating in a silent candlelight vigil.

Many pro-censorship activists claim that only repression of expression by government entities constitutes censorship. Most civil libertarians don't share this view, maintaining that, when private pressure groups succeed in their efforts to limit or bar access to certain forms of expression, censorship has occurred.

Like other forms of expression, protection of the artistic process as a fundamental aspect of free speech rights is tested only when a particular work hits a raw nerve. Art that doesn't confront is rarely challenged. And ideas that don't provoke people have little need for protection.

Although attacks on the fine arts are certainly a problem, a much more virulent strain of censorship plagues art in U.S. popular culture. About a quarter of reported challenges include attempts to restrict commercial television, movies, and music, as well as photographs and films used in advertisements.

The American entertainment industry has been the center of a vast censorship controversy for at least twenty years. Religious political extremists, presidential candidates, government officials, and others continue to accuse Hollywood leaders of having "sold their souls" by working to "debase our nation and threaten our children." During the past eight years, the sponsors of more than 150 prime-time television programs have been targeted by pressure groups claiming the advertisers are sponsoring programs that contain anti-Christian themes, profanity, sex, and violence and that "promote" homosexuality.

Many questions immediately come to mind. Is there "good violence" and "bad violence"? If so, who decides? Sports and news are at least as violent as fiction--from the fights that erupt during televised hockey games to the videotaped beating of Rodney King by a gang of Los Angeles police officers, which was shown repeatedly on prime-time television all over the world.

If we are disturbed by images of violence or sex--or anything else--we can change the channel, turn off the TV, or decline to go to certain movies or museum exhibits. We can also exercise our own free speech rights by voicing our objections to forms of expression we don't like.

Supreme Court Justice Louis Brandeis said that the remedy for messages we disagree with or dislike in art, entertainment, or politics is "more speech, not enforced silence." This is as true today as it was when the justice said it in 1927.

In 1991 and 1992, threats to video and music stores began to increase; five stores in Nebraska were prosecuted for selling a rap music album. The Justice Department continues its use of "multiple prosecution" strategy to force book and film distributors to stop selling all sexually oriented material.

Where is most censorship of art taking place? In some pretty surprising places, like on college campuses--places seen as arenas where free expression and respect for ideas and creativity are highly prized. The campuses of U.S. colleges and universities are the settings for roughly one out of five art censorship incidents. Increasingly, students are seeking the removal of art that offends them.

A great deal of art censorship is also happening in public spaces, such as city halls and libraries. Objections to sexual material and religious content in art installed in such locations are greatly amplified because they are so highly public and displayed in such prominent locations. And hundreds of works of literature-from Maya Angelou's I Know Why the Caged Bird Sings to John Steinbeck's Grapes of Wrath--have been banned from public school libraries based on their "sexual content." The list of challenged and censored books in public schools has now grown into a book itself.