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.

Today the US State Department announced the removal of a ban on two foreign Muslim scholars, Adam Habib from South Africa and Tariq Ramadan of Switzerland, from entry into the United States. The American Association of University Professors and the American Civil Liberties Union, among other groups, had lobbied for several years to allow Habib and Ramadan into the country for various activities, including a position at the University of Notre Dame for the latter.

Peter Schmidt of the Chronicle of Higher Education, which has the full story, writes: “Secretary Clinton’s orders did not tackle the broader question of whether the Obama administration planned to end ‘ideological exclusion,’ the controversial practice, adopted by the federal government after the 2001 terrorist attacks, of denying visas to intellectuals based on their viewpoints.”

The College Art Association has joined the National Coalition Against Censorship, the American Association of University Professors, and other leading groups in academia, civil liberties, journalism, and free speech to issue a Statement of Principle and Call to Action urging governments, institutions, and private individuals to support freedom of expression and academic freedom, and to resist caving in to threats of violence.

This statement (see below) is a response to a number of incidents, specifically the decision by Yale University officials to remove all images of Mohammed from Jytte Klausen’s book, The Cartoons That Shook the World. This scholarly treatise examines the violent response in 2005 to twelve drawings by Danish cartoonists depicting the prophet Mohammed. While Yale officials cited “generic” fears of violence as the reason for excising all the images, there have been no actual threats of violence.

The statement, which follows a letter sent to Yale in September 2009 regarding the images in Klausen’s book, acknowledges that violence has been a common response to controversial words and images throughout human history and is now threatening the commitment to free speech, raising concerns about “fear-induced self-censorship.”

While the statement is immediately in response to the incident at Yale, religion is only one of a number of prominent issues known to incite violence. Recent examples of self-censorship in the visual arts include an exhibition at the San Francisco Art Institute in 2008 that was cancelled in response to violent threats from animal-rights activists, and an instance in 2006 in which the Whitechapel Gallery in London made the decision not to exhibit twelve works by Hans Bellmer, declaring that they were too dangerous to display because the sexual overtones would offend the Muslim population in the area.

Statement of Principle: Free Expression at Risk, at Yale and Elsewhere

A number of recent incidents suggest that our long-standing commitment to the free exchange of ideas is in peril of falling victim to a spreading fear of violence. Not only have exhibitions been closed and performances canceled in response to real threats, but the mere possibility that someone, somewhere, might respond with violence has been advanced to justify suppressing words and images, as in the recent decision of Yale University to remove all images of Mohammed from Jytte Klausen’s book, The Cartoons that Shook the World.

Violence against those who create and disseminate controversial words and images is a staple of human history. But in the recent past, at least in liberal democracies, commitment to free speech has usually trumped fears of violence. Indeed, as late as 1989, Salman Rushdie’s Satanic Verses continued to be published, sold, and read in the face of a fatwa against its author and in the face of the murder and attempted murder of its translators and publishers. In 1998, the Manhattan Theater Club received threats protesting the production of Terrence McNally’s play, Corpus Christi, on the ground that it was offensive to Catholics. After initially canceling the play, MTC reversed its decision in response to widespread concerns about free speech, and the play was performed without incident.

There are signs, however, that the commitment to free speech has become eroded by fears of violence. Historical events, especially the attacks of September 2001 and subsequent bombings in Madrid and London, have contributed to this process by bringing terrorist violence to the heart of liberal democracies. Other events, like the 2004 murder of Dutch film director Theo Van Gogh in apparent protest against his film “Submission,” and the threats against Ayaan Hirsi Ali, who wrote the script and provided the voice-over for the film, demonstrated how vulnerable artists and intellectuals can be just for voicing controversial ideas. Under such threats, the resolve to uphold freedom of speech has proved to be lamentably weak: in the same year as Van Gogh’s murder, Behzti, a play written by a British Sikh playwright, was canceled days after violence erupted among protesters in Birmingham, England on opening night.

In response to rising concerns about fear-induced self-censorship, in 2005 the Danish newspaper Jyllands-Posten published an article, “The face of Mohammed,” which included twelve cartoon images. The cartoons became the focus of a series of violent political rallies in the Middle East in February 2006 and a subject of worldwide debate pitting free speech against “cultural sensitivity.”

For all the prominence of religion in such debates, threats of violence against words and images are not the sole province of religious extremists. In 2005, a politically controversial professor’s scheduled speech at Hamilton College in Clinton, NY was canceled in response to threats of violence. In 2008, the San Francisco Art Institute closed a controversial video exhibition in response to threats of violence against faculty members by animal rights activists. Later that year, the University of Nebraska-Lincoln canceled a speech by former Weatherman and education theorist William Ayers citing security concerns.

The possibility of giving offense and provoking violence has entered the imagination of curators, publishers and the public at large, generating more and more incidents of preemptive self-censorship: in 2006, for instance, London’s Whitechapel gallery declared twelve works by Surrealist master Hans Bellmer too dangerous to exhibit because of fears that the sexual overtones would be offensive to the large Muslim population in the area; and publisher Random House canceled the 2008 publication of Sherry Jones’ The Jewel of Medina because “it could incite acts of violence.” The suppression of images in Jytte Klausen’s book is the latest, but not likely to be the last in the series of such incidents.

Words and images exist in complex socio-political contexts. Suppressing controversial expression cannot erase the underlying social tensions that create the conditions for violence to begin with, but it does create a climate that chills and eventually corrupts the fundamental values of liberal democracy.

A Call to Action

The incident at Yale provides an opportunity to re-examine our commitment to free expression. When an academic institution of such standing asserts the need to suppress scholarly work because of a theoretical possibility of violence “somewhere in the world,” it grants legitimacy to censorship and casts serious doubt on their, and our, commitment to freedom of expression in general, and academic freedom in particular.

The failure to stand up for free expression emboldens those who would attack and undermine it. It is time for colleges and universities in particular to exercise moral and intellectual leadership. It is incumbent on those responsible for the education of the next generation of leaders to stand up for certain basic principles: that the free exchange of ideas is essential to liberal democracy; that each person is entitled to hold and express his or her own views without fear of bodily harm; and that the suppression of ideas is a form of repression used by authoritarian regimes around the world to control and dehumanize their citizens and squelch opposition.

To paraphrase Ben Franklin, those who would give up essential liberty to purchase a little temporary safety, will get neither liberty nor safety.

Joan E. Bertin, Executive Director, National Coalition Against Censorship
Cary Nelson, President, American Association of University Professors

Endorsed by:
American Association of University Professors
American Civil Liberties Union
American Federation of Teachers
American Society of Journalists and Authors
Center for Democracy and Technology
Center for Inquiry
College Art Association
First Amendment Lawyers Association
First Amendment Project
Foundation for Individual Rights in Education
International Publishers Association
Modern Language Association
National Coalition Against Censorship
National Council of Teachers of English
National Education Association
People For the American Way Foundation

Media Coalition invites listeners to join an audio news briefing discussing the upcoming Supreme Court case US v. Stevens on Thursday, September 24, 2009, at 2:00 PM EDT. Speaking will be David Horowitz from Media Coalition; Laurie Lee Dovey of the Professional Outdoor Media Association; Joan Bertin of the National Coalition Against Censorship; and Chris Finan from the American Booksellers Foundation for Free Expression.

In 2004, Robert J. Stevens was convicted under a federal statute, passed in 1999, which made it illegal to distribute or own media depicting animal cruelty. Stevens, a writer and filmmaker from Virginia, had assembled footage of pit bulls fighting and hunting, mainly in international locations where dogfighting is legal. Last year, Stevens’s conviction was overturned, and the Supreme Court will hear arguments in this case on October 6, 2009. Read CAA’s description of the case and statement on this issue.

This summer, CAA signed an amicus curiae brief supporting the National Coalition Against Censorship’s claim that acts of expression, not actual involvement in illegal activities, are protected under the First Amendment and are not subject to criminal penalties. Media Coalition, a trade association that defends First Amendment rights of the mainstream media, filed its own amicus brief in late July.

To RSVP for the audio news briefing, please contact Kai-Ming Cha at 212-587-4025, ext. 12. To hear the briefing, call 1-888-387-8686 and enter access code 1066257.

US v. Robert Stevens involves a federal statute that makes it a crime to own, possess, or display depictions of animal cruelty, if the acts portrayed are illegal in the state where someone owns, possesses, or sells them—even if the acts portrayed weren’t illegal when or where they were performed. The actual case involves a man who was convicted under the statute for a video about pit bulls that contained footage of dogfights in places where they were legal—not to promote dog fighting but to describe how the dogs have been/are used. The conviction was reversed on appeal on the ground that the prohibition on the depiction alone violates the First Amendment, and the Supreme Court has agreed to hear the case. It is important to emphasize, though, that cruelty to animals itself is illegal in most states, and CAA is not advocating for the repeal of those laws—just the law that bans any depiction of animal cruelty.

CAA has signed an amicus brief prepared by the National Coalition Against Censorship that will discuss the implications for free expression, focusing on some well-known art situations, such as Adel Abdessemed’s cancelled show at San Francisco Art Institute, Wim Delvoye’s tatooed pigs, and Hermann Nitsch’s performances. Whatever the ethical issues such work raises, we claim that pure expression—as opposed to actual acts of animal cruelty—should not be subject to criminal penalties, and that the government’s argument in favor of criminalizing speech if its “social cost” outweighs its “value” is so far-reaching that it would chill all kinds of protected expression and exhibition.

This case is relevant to not only artists but also art-history professors, as they may want to teach about ethical issues in art, including the treatment of animals in bioart, etc. The law as it stands might chill their ability to show such work.

CAA Statement

The College Art Association joins the National Coalition Against Censorship in urging the Supreme Court to uphold the decision of the United States Court of Appeals for the Third Circuit in striking down Section 48 as unconstitutional. Section 48 is unconstitutional because it could deter and punish the production, distribution, and even the simple possession of constitutionally protected speech. If the decision is reversed, not only will some lawful expression depicting animals being killed or injured be subject to criminal sanction, but the ramifications are also far-reaching: Congress and the states could outlaw the creation and possession of artworks that depict certain types of conduct simply on the basis that the conduct itself is illegal.

This would chill a wide range of expression, including, potentially, art that depicts such criminal activities as terrorist acts, drug use, and certain types of sexual behavior. Although CAA does not condone cruelty to animals or any other sort of unlawful conduct, CAA has long and firmly opposed artistic and scholarly censorship of all kinds.

Paul B. Jaskot, President, College Art Association
Professor, Department of Art and Art History, DePaul University

Linda Downs, Executive Director, College Art Association

On April 21, 2008, Federal Judge Richard J. Arcara ruled to dismiss the indictment against Steven Kurtz, an artist and professor of visual studies at the University at Buffalo, State University of New York.

In June 2004, Kurtz was charged with two counts of mail fraud and two counts of wire fraud stemming from an exchange of $256 worth of harmless bacteria with Robert Ferrell, professor of human genetics at the University of Pittsburgh’s Graduate School of Public Health. Kurtz had planned to use the bacteria in an educational art exhibit about biotechnology with his award-winning art and theater collective, the Critical Art Ensemble.

Kurtz’s lawyer, Paul Cambria, said that his client was “pleased and relieved that this ordeal may be coming to an end.” The prosecution has the right to appeal this dismissal. How the prosecution will proceed is unknown at this time. If an appeal were undertaken the case would move to the New York Second Circuit Court of Appeals in Manhattan.

Lucia Sommer, coordinator of the Critical Art Ensemble Defense Fund, which raises funds for Kurtz’s legal defense, said, “We are all grateful that after reviewing this case, Judge Arcara took appropriate action.” She added that “this decision is further testament to our original statements that Dr. Kurtz is completely innocent and never should have been charged in the first place.”

For more information about the case and to download a PDF of the ruling, visit the Critical Art Ensemble Defense Fund website.

Background on Kurtz and the Critical Art Ensemble
The Critical Art Ensemble, which Kurtz cofounded in 1987 with Steven Barnes, has won numerous awards for its bio art, including the prestigious 2007 Andy Warhol Foundation Wynn Kramarsky Freedom of Artistic Expression Grant, honoring more than two decades of distinguished work. The group has been commissioned to exhibit and perform in many of the world’s cultural institutions–including the Natural History Museum and the Institute of Contemporary Arts, both in London; the Whitney Museum of American Art and the New Museum of Contemporary Art, both in New York; the Corcoran Museum of Art in Washington, DC; Schirn Kunsthalle in Frankfurt; the Musée d’Art Moderne de la Ville de Paris; and many more.

CAA encourages you to take the Academic Freedom Opinion Survey, created by the Scholars at Risk Network. The survey seeks to collect information on levels of respect for academic freedom and related values from faculty, students, staff, administrators, and alumni at higher-education institutions worldwide.

All responses are confidential. After completing the survey, you will be able to compare responses with those of other respondents around the world. You also are invited to help generate better results by sharing the survey with friends and colleagues.
The Scholars at Risk Network (SAR) is an international network of universities and colleges responding to attacks on scholars because of their words, their ideas, and their place in society, and to the repression of research, publication, teaching, and learning. SAR promotes academic freedom and defends the human rights of scholars and their communities worldwide.

To participate in the survey, please visit http://scholarsatrisk.nyu.edu/survey07. The survey remains open through the summer, with full results to be released this fall.

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As reported in the May CAA News, the American Academy of Religion has joined the American Association of University Professors and PEN American Center in a lawsuit to prevent US government officials from barring foreign scholars from the United States solely because of views the scholars express. The suit, filed by the American Civil Liberties Union, follows the continued exclusion of Professor Tariq Ramadan, a leading scholar of Islam, and contends that a provision of the Patriot Act has fostered a policy known as “ideological exclusion.” The lawsuit asks that the provision be declared unconstitutional.

After several months of asking the US District Court, Southern District of New York, for a summary judgment on the Ramadan portion of the suit, the plantiffs found some success: a federal judge ruled that the government must render a decision on Ramadan’s visa application within ninety days. On June 23, 2006, the judge said that the government has already had “more than adequate time for adjudication of Ramadan’s pending visa application” and noted that though the government can exclude an alien from the country for many reasons, it may not invoke national security as a protective shroud to justify the exclusion of aliens on the basis of their political beliefs.

To read the full summary judgment, go to www.aarweb.org/about/announce/2006/
RamadanRuling20060623.pdf. CAA will continue to report on this issue as it develops; see www.collegeart.org/advocacy.

CAA has sent a letter protesting the closing of the Brooklyn College MFA exhibition at the Brooklyn War Memorial in New York.

Julius Spiegel
Brooklyn Borough Commissioner
NYC Department of Parks & Recreation
Litchfield Villa
Prospect Park
Brooklyn, NY 11215

Dear Borough Commissioner Spiegel:

On behalf of the College Art Association (CAA), the largest and most comprehensive professional organization for art historians and visual artists in the United States, I am writing to express concern about the closing of the Brooklyn College students’ annual Master of Fine Arts (MFA) thesis show at the Brooklyn War Memorial on May 4, 2006. I understand that the exhibition was closed after city official found some works of art to be objectionable and not suitable for families.

As an organization that supports artists’ and scholars’ right to free expression and opposes limits on intellectual inquiry, we follow censorship-related complaints from around the country and can attest to the fact that almost any work of art can be construed as being religious, political, or sexual in nature. We have recorded numerous complaints against highly regarded, often classical, works of art that have been couched in just such language. Under this standard, New York City would be deprived of a large number of the public artworks that have contributed to the vibrant culture of the city. Although many of the works included in the MFA show may be seen as challenging or controversial, the public must be given an opportunity to choose whether or not to attend, to view the exhibition unimpeded, and to form its own opinion.

With more than 13,000 members, and with 20 percent of our membership living and working in New York State, the College Art Association promotes the highest levels of creativity, intellectual inquiry, and technical skill in the practice and teaching of the visual arts, as well as the highest standards of scholarship, connoisseurship, and teaching in the history and criticism of art.

Sincerely,
Michael Fahlund
Acting Executive Director
College Art Association

The U.S. Treasury Department has lifted the embargo that prevented the circulation of books and journal articles from authors who live in Iran, Cuba, or Sudan. These regulations prohibited literary, scientific, political, and artistic works, as well as collaborations among scholars, from being edited by U.S. publishers without government permission.