CAA News

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.

The Institute of Museum and Library Services (IMLS) has released a podcast interview with Susan Blakney, a senior painting conservator and the founder of Westlake Conservators. She traveled to Haiti May 4–8, 2010, to assess the conservation needs of artwork damaged by the January earthquake.

Blakney and two other conservators visited a dozen museums, which she reports have made great strides in retrieving and storing damaged artwork. She describes seeing five hundred paintings that were stacked “in a pile like pancakes,” awaiting conservation care. Haitians are anxious to save their paintings, which are one of their “national loves and largest exports,” she says. However, the country does not have the materials it needs to conserve these integral parts of its social history, she adds. Conservators will be needed for many years to help restore the country’s artwork and to train Haitian artists on conservation techniques. Blakney is certain that the paintings she assessed can be restored to exhibition standards.

Blakney was part of emergency conservation team sent to Haiti by the American Institute for Conservation (a CAA affiliated society) with support from IMLS. These efforts are part of the Smithsonian Institution’s Haitian Cultural Recovery Project, which is also receiving support from the President’s Committee on the Arts and the Humanities, the National Endowment for the Humanities, the National Endowment for the Arts, and the Broadway League. The US Committee of the Blue Shield, a nonprofit, nongovernmental organization dedicated to the protection of cultural property affected by conflict or natural disasters, is serving as the international coordinator of this conservation effort.

The following twenty-one United States senators signed onto the Dear Colleague letter circulated by Senator Tom Udall (D-NM) earlier this month. The letter, which supported increased funding for the National Endowment for the Humanities (NEH), was submitted last week. If your senator(s) signed on, please send a thank-you email using the National Humanities Alliance’s website. A customizable form letter is posted on the Online Advocacy Tools section.

A PDF of the Dear Colleague letter, addressed to Appropriations Committee Chairman Daniel Inouye (D-HA) and Vice Chair Thad Cochran (R-MS), and to Appropriations Subcommittee Chairman Dianne Feinstein (D-CA) and Ranking Member Lamar Alexander (R-TN), is available for download.

Final List of Signatures

Tom Udall (D-NM), letter sponsor
Daniel Akaka (D-HI)
Mark Begich (D-AK)
Sherrod Brown (D-OH)
Benjamin L. Cardin (D-MD)
Christopher Dodd (D-CT)
Kirsten Gillibrand (D-NY)
Tim Johnson (D-SD)
John Kerry (D-MA)
Frank Lautenberg (D-NJ)
Patrick Leahy (D-VT)
Carl Levin (D-MI)
Robert Menendez (D-NJ)
Jeff Merkley (D-OR)
Jack Reed (D-RI)
Jay Rockefeller (D-WV)
Bernie Sanders (I-VT)
Charles Schumer (D-NY)
Debbie Stabenow (D-MI)
Sheldon Whitehouse (D-RI)
Ron Wyden (D-OR)

Our three federal cultural agencies—the National Endowment for the Humanities, the National Endowment for the Arts, and the Institute of Museum and Library Services—are in danger of underfunding for fiscal year 2011.

As the economic downturn places increasing pressure on arts and educational institutions throughout the country, now is the time to increase, not diminish, federal investment in the arts and humanities through the NEA, NEH, and IMLS. Read on to find out how you can help.

Ask Your Senator to Commit to Increasing NEH Funding

Senator Tom Udall (D-NM) is circulating a “Dear Colleague Letter” in support of increased funding for the NEH. The letter asks for $232.5 million for the endowment, a $65 million increase above what it received last year, and $71.2 million more that what President Barack Obama has requested for fiscal year 2011.

The deadline for senators to sign onto this letter has been extended to Wednesday, May 12, 2010. Please write your senators today, using online advocacy tools from the National Humanities Alliance (NHA), and ask them to demonstrate their support for the humanities by adding their signature to this letter. You can also contact your senators by calling the Capitol Switchboard at 202-224-3121.

The sign-on letter, addressed to Appropriations Committee Chairman Daniel Inouye (D-HA) and Vice Chair Thad Cochran (R-MS), and to Appropriations Subcommittee Chairman Dianne Feinstein (D-CA) and Ranking Member Lamar Alexander (R-TN), is available on the NHA website.

Support a Budget Increase for the NEA

President Obama suggested a decrease of $6.4 million for the NEA when he proposed his 2011 federal budget. Rather than allocate $161.3 million to the NEA, CAA urges you to contact your legislators to request $180 million for the agency for the next fiscal year.

Since the 1960s, the NEA has assisted artists and organizations in the visual arts, dance, design, music, opera, theater, and more. It has also supported crucial CAA programs, including a $50,000 grant to fund ARTspace at the 2010 Annual Conference in Chicago, and a stimulus grant of the same amount to save a key staff position.

Help the IMLS Continue Giving Grants to Museums and Libraries

A federal agency that supports all kinds of museums and libraries nationwide, the IMLS received $282.2 million in fiscal year 2010, but now faces a $16.7 million drop in funding. The IMLS’s Office of Museum Services is currently funded at $35.2 million, and the American Association of Museums (AAM) and the Association of Art Museum Directors (AAMD) have joined the NHA to advocate $50 million for the office. Download the AAM issue brief or visit the NHA website to read more about IMLS funding.

On April 20, 2010, the US Supreme Court struck down, on First Amendment grounds, a federal statute (18 U.S.C. § 48 ) that criminalized the commercial sale, dissemination, and possession of depictions of animal cruelty, as well as of acts showing the wounding or killing of animals. The decision in United States v. Stevens endorses rights of free expression, especially as they relate to the sale and distribution of images. In summer 2009, CAA joined with the National Coalition Against Censorship (NCAC) in filing a friend of the court brief that urged the court to strike down the law.

The Stevens case involved an appeal of a conviction on charges that the defendant had sold videos of dog fighting. The court’s 8–1 decision (only Justice Samuel Alito dissented) held that the law was overbroad because it swept in the commercial sale and use of images clearly protected by the First Amendment, including acts of hunting that were lawful in one state but unlawful in another, as well as various other activities in which animals may be wounded or killed. The court noted that its decision only protects the depictions of activities involving animals, and does not affect the criminalization of cruelty to animals.

As NCAC and CAA emphasized in their brief, CAA in no way supports cruelty to animals. Although the statute allowed for exceptions, for representations that had “serious religious, political, scientific, educational, journalistic, historical, or artistic value,” CAA was concerned that this exception would allow courts to make decisions whether a challenged work had such value. So, for example, while one court may agree that an animal-rights video that documents atrocious conditions in a factory farm is political speech and therefore legally permissible, another court, unaware of particularly aesthetic approaches, may see an artist’s sale of a work dealing with the same imagery as outside the exception and thus prohibited by the statute. In addition, CAA was concerned that if the court had held § 48 constitutional, that would set a precedent for Congress to expand the categories of speech that are not protected by the First Amendment, potentially including various types of artistic speech.

CAA filed its brief not only because § 48 had a potential direct affect on artistic creation of works that use animals, as well as the reproduction of those works and of other images depicting animals, but also because the possibility that other categories of speech could be criminalized could result in limiting the expression of CAA members as artists and teachers. The US Supreme Court endorsed the position taken by CAA in its brief.

The Art Newspaper recently reported on the decision. You may also read more about CAA’s position on US v. Stevens and download a PDF of the NCAC and CAA brief.

In response to Museums Advocacy Day, held on March 22–23, Senator Kirsten Gillibrand (D-NY) is circulating a “Dear Colleague” letter to encourage her fellow senators to ask the Senate Appropriations Committee for $50 million in funding for the Office of Museum Services, a branch of the Institute of Museum and Library Services. The amount requested for fiscal year 2011 is a $14.8 million increase over the current fiscal year. Gillibrand’s letter is similar to a separate effort in the House of Representatives, supported by Representatives Paul Tonko (D-NY), Louise Slaughter (D-NY), and Leonard Lance (R-NJ).

The American Association of Museums (AAM) has prepared a form letter that you may use to send an urgent message to your senators. Use the online fields to enter your contact information, which will then select your senator’s name and address. You can then download (as an .rtf) and print the letter to mail or fax, or choose the email option to send your letter right away. You can edit and personalize your missive before sending.

The Office of the Intellectual Property Enforcement Coordinator (IPEC), a federal agency in the Executive Office of the President, seeks opinions on how the federal government should enforce copyrights and handle infringements. In a two-part survey, IPEC not only solicits written submissions about economic costs associated with intellectual-property violations, but also requests specific recommendations on how such violations can be dealt with. All comments should be sent by email.

Public Knowledge, a digital-issues interest group based in Washington, DC, writes, “The request for comments seems geared to take in complaints from big media companies and other major holders of copyrights, patents, and trademarks,” but also that it is “open to everyday consumers, citizens, and members of the public.”

An area that art historians may wish to address, for example, is the way that copyright controls on images have made it difficult for electronic texts to include copyrighted art images. For artists, an area of concern is the high cost of registering copyright in a visual image, and lack of good bulk registration tools at the US Copyright Office for visual-image rights holders.

Read more about the issue on the Public Knowledge website, which also includes a sample letter that you can tailor to your needs. Deadline: 5:00 PM on March 24, 2010.

As reported last week, the cochairs of the Congressional Humanities Caucus—David Price (D-NC) and Tom Petri (R-WI)—are circulating a sign-on letter asking their colleagues in the House of Representatives to join them in urging appropriators to increase funding for the National Endowment for the Humanities (NEH). As of this morning, nearly sixty members of Congress have agreed to sign.Last year, one hundred members signed a similar letter.While this is a difficult fiscal year, CAA supports at least level funding for the NEH.

An updated list of signers is below. Please take a moment to review these names. If your representative is not listed, you can still call the Capitol switchboard at 202-224-3121, or email the office a request via NHA’s online advocacy tools. If a representative has already indicated their willingness to sign, but is NOT yet listed, please contact Jessica Irons, NHA executive director, at jirons@nhalliance.org or 202-296-4994.

The House “Dear Colleague Letter” requests total funding of $232.5 million for the NEH in fiscal year 2011, including $144 million for NEH National Programs and $60 million for the NEH Federal/State Partnership (a $65 million increase over the FY 2010 enacted level). It also opposes $7.2 million (5.6 percent) in cuts to NEH programs, proposed in the President Barack Obama’s budget request for NEH. The text of the sign-on letter is available.

For more information or to sign onto the letter, congressional offices should contact Kate Roetzer with Rep. David Price (5-1784) or Lindsay Punzenberger with Rep. Thomas Petri (5-5406). The deadline for representatives to sign the letter is Tuesday, March 16, 2010.

Sign-On List (as of March 15)

(AR-2) Vic Snyder
(AR-4) Mike Ross
(CA-5) Doris O. Matsui
(CA-6) Lynn Woolsey
(CA-14) Anna G. Eshoo
(CA-17) Sam Farr
(CA-28) Howard L. Berman
(CA-30) Henry A. Waxman
(CA-32) Judy Chu
(CT-2) Joe Courtney
(CT-3) Rosa L. DeLauro
*(DE-AL) Michael Castle PENDING
(FL-23) Alcee Hastings
*(GA-5) John Lewis PENDING
*(GA-8) Jim Marshall PENDING
*(GA-13) David Scott PENDING
(HA-2) Mazie K. Hirono
(IA-2) David Loebsack
(IL-1) Bobby L. Rush
(IL-9) Jan Schakowsky
(KY-3) John A. Yarmuth
(MA-3) James P. McGovern
(MA-5) Niki Tsongas
(MA-8) Michael E. Capuano
(MA-9) Stephen Lynch
(MA-10) Bill Delahunt
(MD-8) Chris Van Hollen
(ME-1) Chellie Pingree
(MI-3) Vernon J. Ehlers
(MI-12) Sander Levin
(MI-14) John Conyers, Jr.
(MI-15) John Dingell
(MN-8) Jim Oberstar
(MO-5) Emmanuel Cleaver II
(MP-AL) Gregorio Kilili Camacho Sablan
(NC-4) David Price (cosponsor)
(NC-13) Brad Miller
(NH-1) Carol Shea-Porter
(NJ-2) Frank LoBiondo
(NJ-7) Leonard Lance
(NJ-8) Bill Pascrell, Jr.
(NJ-12) Rush Holt
(NV-1) Shelley Berkley
(NV-3) Dina Titus
(NY-8) Jerrold Nadler
(NY-12) Nydia Velazquez
(NY-14) Carolyn B. Maloney
(NY-23) Bill Owens
(OR-1) David Wu
(OR-3) Earl Blumenauer
(OR-4) Peter DeFazio
(PA-1) Robert Brady
(PA-6) Jim Gerlach
(RI-2) James R. Langevin
(TX-25) Lloyd Doggett
(VA-3) Robert C. “Bobby” Scott
(VA-11) Gerry Connolly
(WI-2) Tammy Baldwin
(WI-6) Thomas Petri (cosponsor)
(WV-3) Nick J. Rahall, II

The cochairs of the Congressional Humanities Caucus—David Price (D-NC) and Tom Petri (R-WI)—are circulating a “Dear Colleague Letter” in support of increased funding for the National Endowment for the Humanities (NEH). The letter requests total funding of $232.5 million for the NEH in fiscal year 2011, including $144 million for NEH National Programs and $60 million for the NEH Federal/State Partnership (a $65 million increase over the FY 2010 enacted level).

Unfortunately, President Barack Obama’s FY 2011 budget request of $161.3 million represents $7.2 million (5.6 percent) in cuts to NEH programs. Your help is needed to oppose these cuts and to support increased funding for the NEH. Please write your representative today, using the National Humanities Alliance’s new online advocacy tools, and ask them to sign the NEH sign-on letter sponsored by the caucus cochairs.

The humanities represent critical modes of thought and fields of knowledge that foster a broadly educated workforce, undergird our civic institutions, inform complex policy challenges, and enrich individual lives. They support capacities especially relevant to the twenty-first century: knowledge of world cultures, religions, and languages; understanding of US history and democratic traditions; and humanistic perspectives to evaluate the implications of scientific and technological advances. Now is the time to increase—not diminish—federal investment in the humanities through the NEH.

For more information or to sign onto the letter, congressional offices should contact Kate Roetzer with Rep. David Price (5-1784) or Lindsay Punzenberger with Rep. Thomas Petri (5-5406). The deadline for representatives to sign the letter is Tuesday, March 16, 2010.

The sign-on letter, addressed to Interior Appropriations Subcommittee Chairman Jim Moran (D/VA) and Ranking Member Mike Simpson (R/ID), is available. A list of members who have already agreed to sign is provided below.

Sign-On List (as of March 11)

(AR-2) Vic Snyder
(AR-4) Mike Ross
(CA-5) Doris O. Matsui
(CA-28) Howard L. Berman
(CA-32) Judy Chu
(CT-3) Rosa L. DeLauro
(FL-23) Alcee Hastings
(HA-2) Mazie K. Hirono
(IA-2) David Loebsack
(KY-3) John A. Yarmuth
(MA-3) James P. McGovern
(MA-8) Michael E. Capuano
(MA-9) Stephen Lynch
(MA-10) Bill Delahunt
(MD-8) Chris Van Hollen
(ME-1) Chellie Pingree
(MI-3) Vernon J. Ehlers
(MI-12) Sander Levin
(MI-14) John Conyers, Jr.
(MI-15) John Dingell
(MN-8) Jim Oberstar
(MO-5) Emmanuel Cleaver II
(MP-AL) Gregorio Kilili Camacho Sablan
(NC-4) David Price (cosponsor)
(NH-1) Carol Shea-Porter
(NJ-7) Leonard Lance
(NJ-8) Bill Pascrell, Jr.
(NJ-12) Rush Holt
(NV-1) Shelley Berkley
(NY-8) Jerrold Nadler
(NY-12) Nydia Velazquez
(NY-14) Carolyn B. Maloney
(OR-1) David Wu
(RI-2) James R. Langevin
(TX-25) Lloyd Doggett
(VA-3) Robert C. “Bobby” Scott
(WI-6) Thomas Petri (cosponsor)
(WV-3) Nick J. Rahall, II