Advocacy

CAA joined with artists and other arts-support organizations in filing an amicus brief asking the US Supreme Court to grant a petition to review a case involving an artwork removed from public view in San Marcos, Texas. In that case, Kleinman v. City of San Marcos, the US Court of Appeals for the Fifth Circuit held that the First Amendment only protects “great” works of art.

The brief explains how this new, “great” art standard is inconsistent with the First Amendment and would give governments the ability to ban disfavored art and contemporary art that has not yet become iconic. It points out that whether art is “great” art is not susceptible to an objective, value-neutral determination, but would require courts to act as art critics based on expert evidence of what constitutes “greatness” in art. The brief also highlights a number of examples of artists and art whose work was not initially regarded as “great,” but only became so over time. For all of these reasons, the brief argues, the new and unprecedented “great” art standard of the Fifth Circuit is troubling, and the Supreme Court should review and reverse the appellate decision.

Background

In the city of San Marcos, Texas, participants at a charity event for the opening of a store, Planet K, were invited to smash up an old car. The car was then converted into a cactus planter and painted on the exterior by two local artists, with scenes from San Marcos, abstract designs, and the phrase “Make Love, Not War.” The stated intention of one of the petitioners, Michael Kleinman, organizer of the event and owner of the store, was always to turn the wrecked car into an artwork. The resulting artwork was displayed on private property (the Planet K parking lot) and was easily visible to the public from thoroughfares.

A San Marcos ordinance prohibits, as a public nuisance, any display of a “junked vehicle” that can been seen by the public. Based on the First Amendment—that their artwork is protected speech—Kleinman and the artists sued the city, to enjoin it from applying the ordinance to their artwork. The US District Court for the Western District of Texas found for the city. The court held that the ordinance did not violate the First Amendment, as applied to plaintiffs’ artwork, because they had alternative avenues of communicating their message.

This past February, the Fifth Circuit affirmed that decision. It first questioned whether the wrecked car/planter/artwork could be considered constitutionally protected expression. In particular, the appeals court read a prior Supreme Court decision to indicate that the First Amendment protects only “great” works of art, and that the Supreme Court has not otherwise set out the First Amendment framework to be applied to visual works of art. The Fifth Circuit also went on to hold that even if the First Amendment did apply in this case, under prevailing standards the city’s nuisance law could apply to the artwork. After the decision of the Fifth Circuit, the city seized and removed—but has not yet destroyed—the artwork.

The artists filed a petition for certiorari to the Supreme Court, requesting that the court review the decision of the Fifth Circuit. There are several grounds for the petition, one of which is that “great art” should not be the test for whether an artwork is protected by the First Amendment.

First Amendment protection for works of art has long been a core concern of CAA and important to its advocacy program. In the last Supreme Court term, CAA joined the National Coalition Against Censorship in filing an amicus brief in the case of United States v. Stevens. In that case, the Supreme Court ultimately held, 8–0, that the federal statute criminalizing depictions of animal cruelty violated the First Amendment, agreeing with the position taken by CAA in its brief. Earlier, CAA joined an amicus brief in the NEA Four case (National Endowment for the Arts v. Finley), in which the Supreme Court ultimately held, in 1998, that it was not unconstitutional for Congress to mandate that the National Endowment for the Arts take into account “general standards of decency and respect for the diverse beliefs and values of the American public” when funding artists.

Other Signers to the Brief

The amicus brief to which CAA is a party was filed on July 8, 2010. The other signers are: Texas Accountants and Lawyers for the Arts; Volunteer Lawyers and Professionals for the Arts (formerly Tennessee Volunteer Lawyers for the Arts); Northwest Lawyers and Artists (Portland, Oregon); Comic Book Legal Defense Fund; ArtCar Fest; the artist historian Douglas Nickel; and artists Butch Hancock, Kelly Lyles, Leo Aston, Alan Pogue, Jan D. Elftman, Philo Northrup, Harrod Blank, Emily Duffy, and Graydon Parrish.

Downloads

Download a PDF of the Kleinman amicus brief. A second PDF contains the petition for certiorari, the District Court and Fifth Circuit opinions, and, at the end of the file, photographs of the artwork in question.

According to a new report published by the National Endowment for the Arts (NEA), Americans who participate in the arts through the internet, television, radio, computers, and handheld devices are almost three times more likely to attend live arts events than nonmedia participants (59 percent versus 21 percent). Users of technology and electronic media also attend, on average, twice as many live arts events—six versus three in a single year—and see a wider variety of genres.

The report, called Audience 2.0: How Technology Influences Arts Participation, looks at who is participating in the arts through electronic media, what factors affect their participation, and the relationships among media-based arts activities, live attendance, and personal arts creation. Audience 2.0 has determined that media-based arts participation appears to encourage—rather than replace—attendance at live arts events. Among the conclusions:

• Education continues to be the best predictor of arts participation among adults, both for live attendance and through electronic media. Survey respondents with at least some college education were more likely than respondents with a grade-school education to have used electronic media to participate in the arts
• For many Americans—primarily older Americans, lower-income earners, and racial/ethnic minority groups—electronic media is the only way they participate in arts events
• The 15.4 percent of US adults who use media only to engage with the arts are equally likely to be urban or rural
• Twenty-one percent (47 million) of all US adults reported using the internet to view music, theater, or dance performances in the last twelve months. Twenty-four percent (55 million) obtained information about the arts online

Audience 2.0 expands on the research published in the NEA’s 2008 Survey of Public Participation in the Arts (SPPA). This survey, conducted in partnership with the US Census Bureau and released last year, is the nation’s largest, most representative study of arts participation among American adults. Since 1982, SPPA has measured American adult participation in activities such as visits to art museums or galleries and attendance at jazz and classical music concerts, opera and ballet performances, and musical and nonmusical plays. SPPA categorizes these as “benchmark” activities, providing a standard group of arts activities for more than two decades of consistent trend analysis. Audience 2.0 takes a closer look at how audiences use electronic media to engage in these benchmark activities.

In an agency first, the new report is being released only in an electronic format that includes multimedia features. Chairman Rocco Landesman’s video greeting is accompanied by a video commentary on the report from Sunil Iyengar, NEA director of research and analysis. Additionally, each chapter will open with videos from arts organizations that represent each of the benchmark disciplines tracked by the report. Arts organizations can use findings from Audience 2.0 to better understand their audiences’ uses of technology and electronic media.

As part of its ongoing analysis of SPPA data, the NEA is making raw data and detailed statistical tables available to researchers and the public. The tables highlight demographic factors affecting adult participation in a variety of art forms.