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US v. Robert Stevens involves a section of a federal statute (18 U.S.C. § 48) 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 curiae 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 tattooed 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

Roundup of Legal Issues in Art and Academia

posted by Christopher Howard

CAA rounds up several legal issues related to the art and academic worlds.

US Ban on Muslim Scholar

Last week the US Court of Appeals for the Second Circuit reversed a lower court’s decision regarding Tariq Ramadan, a Swiss Muslim professor who was not allowed into the country to teach at the University of Notre Dame. The State Department revoked Ramadan’s visa in 2004 via the USA Patriot Act and then denied another one two years later because he contributed to a charity that was allegedly supporting Hamas, a Palestinian group that is a terrorist group in the eyes of the American government. Ramadan may now be able to dispute this claim, which could reinstate his visa status.

Three groups—the American Academy of Religion, the American Association of University Professors, and PEN American Center—worked with the American Civil Liberties Union on the case. The New York Times has the story on the recent ruling.

Shepard Fairey’s Obama Poster

The photographer whose image was used in Shepard Fairey’s iconic poster of Barack Obama argues that the Associated Press, who is suing Fairey for copyright infringement, does not actually possess the photograph’s copyright. Erik Larsen at Bloomberg has more details.

National Gallery and Digital Images

The National Portrait Gallery in London is threatening a lawsuit against Derrick Coetzee, a Seattle man who downloaded thousands of high-resolution images from the museum’s website and posted many on Wikipedia. In the US, photographs of two-dimensional works of art are not protected by copyright because the photographs lack originality (per Bridgeman Art Library v. Corel Corp from 1999). In the UK, however, there is not a similar legal precedent. The Independent and the Guardian have reported on the developing story.

US Court Appeal May Overturn Ban on Foreign Scholar

posted by Christopher Howard

On Tuesday, March 23, the US Court of Appeals for the Second Circuit will reconsider the case of a Swiss professor and Muslim scholar, Tariq Ramadan, who was banned from entering the country in 2004, reports John Schwartz of the New York Times. Based on a provision for ideological exclusion in the USA Patriot Act, Ramadan was declined a visa by the US government to travel to America and take a position at the University of Notre Dame.

The American Academy of Religion, the American Association of University Professors, and PEN American Center all support the American Civil Liberties Union, which is challenging a 2007 ruling that upheld the government’s decision. Arguing for Americans’ First Amendment rights to hear Ramadan, this coalition is also calling on the new presidential administration to end ideological exclusion.

The Patriot Act allows the US to deny a visa to anyone whom it believes has endorsed or espoused terrorist activity or persuaded others to endorse or espouse terrorist activity. The ACLU, however, claims the government used the provision more broadly to deny entry to scholars, writers, and activists whose political views it disfavored. After the ACLU initially filed suit, Schwartz reports, the government asserted that Ramadan made contributions from 1998 to 2002 to a charity in Switzerland, called the Association de Secours Palestinien, which the Treasury Department had deemed a Hamas-affiliated terrorist organization.

Free Speech Protection Act Introduced in House

posted by Christopher Howard

Representative Peter King, a Republican from the State of New York, reintroduced the Free Speech Protection Act (HR 1304) to protect the First Amendment rights of Americans who are sued for defamation in foreign courts. With the rise of libel tourism, the fear of a lawsuit has become a deterrent for American authors, journalists, and publishers seeking to publish works on topics such as terrorism. The bill provides protections that will deter foreigners from suing Americans.

Recently there has been a rise in “libel tourism,” where foreigners take advantage of plaintiff-friendly foreign court systems, such as in the United Kingdom, in order to sue Americans for defamation. When sued in foreign courts, it has been difficult for Americans to countersue, as they could not establish standing in US courts. Without the ability to retaliate, there is nothing to discourage the practice of libel tourism.

The Free Speech Protection Act does the following to protect Americans and deter foreign libel lawsuits:

  • Allows US persons to bring a federal cause of action against any person bringing a foreign libel suit if the writing does not constitute defamation under US law
  • Bars enforcement of foreign libel judgments and provides other appropriate injunctive relief by US courts if a cause of action is established
  • Awards damages to the US person who brought the action in the amount of the foreign judgment, the costs related to the foreign lawsuit, and the harm caused due to the decreased opportunities to publish, conduct research, or generate funding
  • Awards treble damages if the person bringing the foreign lawsuit intentionally engaged in a scheme to suppress First Amendment rights
  • Allows for expedited discovery if the court determines that the speech at issue in the foreign defamation action is protected by the First Amendment.

While the goal of the bill is to protect Americans from the exploitation of libel tourism, it does not intend to limit legitimate cases of defamation. Nothing in the bill limits the rights of foreign litigants who bring forward good-faith defamation actions against journalists and others who have purposely and maliciously published false information.

In 2008, New York State passed a similar bill entitled Rachel’s Law. King’s bill raises the issue on the federal level so that all American’s rights can be protected. Senators Specter, Lieberman, and Schumer have introduced companion legislation in the Senate.

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