Obscenity, Censorship, Art and Government Funding

In this section we will looking at several interrelated issues.

1. What is obscenity?

2. Assuming we can identify in a non-controversial way what is and what is not obscene, to what extent is the government should censor the production and dissemination of obscene materials?

3. Can art be obscene? And if the answer to that us, “Yes.” should obscene art be subjected to the same restrictions as other obscene materials?

Brief aside: Formalism

4. Should it be funded with tax dollars? Should ANY art be funded with tax dollars.

Examining all these related issues is a tall order. But to begin, let’s look at these individually.

1. What does it mean to say that something is obscene?

· Is one making a claim about the object itself?

· Is one making a claim about one’s own personal reaction to the object?

· Or is one doing something else?

Here are four possible scenarios:

Objectivism:

According to this view of obscenity, “obscenity” names a mind-independent property. Things are obscene or not obscene regardless of how any or all individuals react, or would react to it. (i.e. whether anyone thinks it is obscene or not). If two individuals disagree about whether something is obscene or not, one must be wrong and the other must be right because, according to this view, they are disagreeing about an objective state of affairs.

Subjectivism:

According to this view of obscenity, “obscenity” names a private, mind-dependent sensation or reaction. This view holds that obscenity is in the "eye of the beholder." Essentially this is the view that when I claim that some things obscene I am only reporting my personal reaction to is. According to this view it is quite possible for one and the same thing "to be obscene" for me, but not "to be obscene" for you, since this merely means that were are reacting to the object differently.

Ideal Observer Theory:

This view of obscenity maintains that to say that something is obscene is not to report one’s own personal response to the object, but rather to predict the subjective responses of (most) “normal” people. According this view, to say something is obscene is to say that normal, sensitive, unbiased, informed persons would have “the obscene reaction.” To the object.

Ideal Observer Theory Plus Context:

This is the same as the above, but it acknowledged that the subject reactions to objects, even of ideal observers, are predicated in part by the context of the interaction- meaning, expectations, environment, etc. This view is mindful of the fact that even ideally situated judges may react to the very same word, image or object differently given a different context.

Community Standards:

Given the difficulties presented by the “Ideal Observer” theory (How old is the “Ideal Observer?” What gender? Sexual Orientation? Religious Affiliation or Socioeconomic background etc.) as a practical matter we have relegated these questions to “Community Standards.” After all, the subjective responses of a normal, sensitive, informed and impartial Kendallite might be significately differnet fmor the normal, sensitive, informed and impartial Hialeahan, or South Beacher, or Pensacolan, etc. In the US we have developed “The Miller Test” as a means to sort out unprotected free speech from speech protected under the US constitution.

The Miller Test

Miller v. California (1973)

In Miller a new constitutional test for obscenity, which remains the governing standard today.

The three criteria of this test are as follows:

1. whether “the average person, applying contemporary community standards” would

find that the work, taken as a whole, appeals to the prurient interest;

PRURIENT INTEREST: A morbid, degrading and unhealthy interest in sex, as distinguished from a mere candid interest in sex.

2. whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and

3. whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

In this case the Court proclaimed:

“There is no evidence, empirical or historical, that the stern 19th century American censorship of public distribution and display of material relating to sex . . . in any way limited or affected expression of serious literary, artistic, political, or scientific ideas.”

The Miller test also appeared to shift the focus of the “community standards” test:

The “appeal to the prurient interest” and “patent offensiveness” are both to be judged with reference to contemporary community standards.

Justice Brennan strongly dissented realizing the repressive potential of a standard.

Challenge between the concepts “community or majoritarian standards” and those of a “reasonable person” Allows for the tyranny of the majority. While harm against women has often been cited as the motivation for the restrictions on pornography, male gay images have been targeted by this approach. This suggests that discriminating against a (reasonable) minority it not only a possibility but altogether likely.

Brennan:

“the outright suppression of obscenity cannot be reconciled with the fundamental principles of the First and Fourteenth Amendments.”

No definition of obscenity could ever be formulated with sufficient clarity that it would target only

constitutionally unprotected speech. Experience had demonstrated that

“almost every [obscenity] case is ‘marginal’” and “presents a constitutional question of exceptional difficulty.”

2. To what extent should governments censor obscene materials and what.

Defender of the “Liberal Society” assert the right of consenting adults to publish and consume pornography in private. Moralists have long held that the corrupting impact of these materials warrant severe restrictions on obscene pornography. They claim that the state has the right to regulate or prohibit pornography. This is justified as a necessary step to protect some constituency from the harm of pornography or other obscene materials.

Let’s assume that this argument would work if the harm is significant and avoidable only by censorship. This then focuses our attention on the questions who is being harmed, in what way and to what extent?

Let’s look at three often cites groups:

Women:

Women are harmed.

· Violence

· Sexual discrimination and objectification

· Demeaning because of societal attitude with respect to women and the appropriateness of women having sex.

Children:

· Violence and Abuse

· Exposure to graphic images at an impressionable age (should not risk it)

Society:

· Disintegration of the Traditional Family and the social harm that brings.

· Coarsening of culture. (Virtue Argument)

3. Can Art Be Obscene?

This question is complicated by the facts that we are not entirely clear on what “Art” is.

Common claim “there is simply no such thing as ‘obscene’ art.” Curiously, this claim is accepted by some who oppose controversial art and those who support controversial art. Detractors of controversial art say that being obscene prevents it from being art. Supporters say that being art prevents it from being obscene.

Examples: Robert Mapplethorpe and Andres Serrano

For instance Robert Mapplethorpe and Andres Serrano were photographers who caused a controversy with their strong, potentially offensive photos.

Mapplethorpe's X Portfolio series sparked national attention in the early 1990s when it was included in “The Perfect Moment,” a traveling exhibition funded by National Endowment for the Arts. The portfolio includes some of Mapplethorpe's most explicit imagery: homoerotic and sadomasochistic images. Various conservative political groups opposed not only his work, but more specifically the public display and government support for what they believed to be obscene material.

Mapplethorpe became something of a cause celebre for both sides of the American Culture war of the 80s and 90s. When the Contemporary Arts Center of Cincinnati hosted a exhibition of “The Perfect Moment” its director, Dennis Barrie was charged with of "pandering obscenity". He and the gallery were indicted on pornography charges stemming from an exhibit of the photographs.

At trial, a Cincinnati jury acquitted Barrie and the Center.

Photographer Andres Serrano created a photo which depicts a small plastic crucifix submerged in a glass of the artist's urine entitled Piss Christ.

Web Image of Piss Christ

The piece was a winner of the Southeastern Center for Contemporary Art's "Awards in the Visual Arts" competition, which was sponsored in part by the National Endowment for the Arts, a United States Government agency that offers support and funding for artistic projects. The piece caused a scandal when it was exhibited in 1989, with detractors, including United States Senators Al D'Amato and Jesse Helms, outraged that Serrano received $15,000 for the work, part of it from the taxpayer-funded National Endowment for the Arts. Supporters argued the Piss Christ is an issue of artistic freedom and freedom of speech.

Some claim that Mapplethorpe's and Serrano's works are NOT art because they are obscene.

• Implies that no "obscene" object can be art. Perhaps being “obscene” precludes it from being art. (and vise versa)

But…

– As certainly as we can identify the fact that some works produce in some viewers obscene reactions, we can identify the fact that these same works may not produce the same sorts of reactions in other viewers, but rather are such as to produce aesthetic reactions.

• "Obscenity" or the capacity of a work of incite an obscene reaction seems to be relational.

• (Subjective or perhaps Ideal Observer)

• It does not appear to be an intrinsic property of the work.

• (Not “objectively obscene or innocent”)

• Without the addition of a viewer, and a viewer with individual sensibilities and a unique "offense" threshold, the capacity of the work for creating obscene reactions is indeed unactualized.

• Without the viewer and his or her sensibilities the work in itself is neither obscene nor "innocent."

• It is in combination with an agent that the work's capacity or power for inciting obscene or "innocent" reactions is actualized in any interesting way.

Receptivity of viewers to the powers or capacities of the work may and do change, not only from one viewer to another, but also with respect to the same viewer from one point in time to another. (Remember my “context example.”)

The history of art is filled examples of what was once considered obscene has lost that capacity in the present culture or conversely, what might have once been an object inspiring religious devotion, is currently considerably course, depraved and indecent. It seems unreasonable to claim that objects are not works of art merely on the basis that it can/does invoke an obscene reaction is some at some times.

• To claim this would be to claim that works can be art for some and not art for others.

• Also works can be art at one moment for one view and not the next, for that same viewer.

Many contend that whether an object/event is a work of art or not is more properly understood as a social or historical judgment. If this is correct, that even if Mapplethorpe's work primarily incites obscene reactions, it does not follow that Mapplethorpe's work cannot also incite an aesthetic reaction. Indeed, this may be the principle aim of certain works, such as Mapplethorpe’s or Seranno’s: to be both obscene and art at the same time.

But what about the reverse. Can an object status as “Art” inoculate it from being obscene. On a Formalist account of art, one might argue that, when engaging with art appropriately (qua art) one cannot regard it as obscene. If this were so, then people who find genuine art “obscene” are misperceiving it and perhaps need only to be “educated” as to the “proper” way to regard art.

(Brief Aside) Formalism

Formalism as a theory of art came out of 18 & 19th century fascination of beauty and other “aesthetic qualities” like awe or sublimity. More precisely, Formalism derives from the seeking of an Enlightenment/scientific understanding of beauty. Enlightenment Thinkers posited an "aesthetic sense" which is stimulated by certain formal arrangements. (e.g. balance, movement, symmetry in paintings. In music we recognize harmony, chords and discords and all these are formal qualities. )

• This view understands works of art are unique arrangements.

But Arrangement of "What?"

· Visual Art- Look for Visual Elements and the Formal Principles which govern their use (and appreciation) in works of visual art.

For Formalism, the most important things to look for in works of art is the way those works have been designed, (where design refers to a perceptual quality, not a historical quality). Since they reject the idea that it is reference to something outside the work which gives it its artistic value, it must be something internal to the work, something the is given in perception.

Elements of Visual Art

The Elements of Art (seven basic components, or building blocks of visual art)

1. color

2. value

3. line

4. texture

5. shape

6. form

7. space

The Principles of Visual Art (eight different ways the elements can be used in a work of art)

1. balance

2. emphasis

3. harmony

4. variety

5. gradation

6. movement

7. rhythm

8. proportion

Formalism maintains that art is the construction of aesthetically fascinating objects or events (stimulates our “Aesthetic Sense”) and that good art constructs objects that are genuinely aesthetically fascinating and bad art fails to do so. Appreciating the work (engaging it critically and appropriately) means paying close attention to the its formal elements and formal principles. And NOT paying much attention to “what it’s supposed to be/ represent.”

Interesting formal analysis Da Vinci’s Last Supper:

http://www.slideshare.net/nichsara/formal-analysis-tutorial-2-d

• Formalism posits an unique pleasure, aesthetic experience. This is the sort of pleasure that you get when looking at art and other things; it is a disinterested pleasure.

• It is characterized by immediate gratification but without direct practical gain or benefit.

Kant put it this way; we do not care whether the object before us is real, imitation or wholly an illusion when appreciating it aesthetically or "disinterestedly." We are indifferent to the objects actual existence because we are not engaged with it practically Rather, we are appreciating it as an object of experience only and delighting in the qualities (i.e. formal qualities) the object presents as an object of experience. Kant also talks about being able to appreciate a purposeful-ness to things without being aware of their actual purpose.

Also talks about the mind engaging in "free-play." the product of which is not useful judgements, but a sort of fanciful musing. (Actually, he talks more about natural things such as flowers, sunsets, and mountains than he does art.)

Formalism, or at least “Formalist Appreciation” is often used as a vehicle for art appreciation classes and it suggests that aesthetic appreciation is incompatible with practical engagement with the object. Twentieth Century Aesthetician Clive Bell posits an Aesthetic Emotion that was opposed to the Emotions of Life. It is “Significant Form” he claims prompts that arresting "Ah!" that some works of art are able to achieve. On this view of art, the purpose of art is not to teach us messages; purpose is to be aesthetically fascinating.

On this view, the wrong thing to do is ask "What it is about?" or "What is it supposed to be?" The right thing to do with (visual) art is just look at it; enjoy it for the formal compositions that they are. This is an “art for art's sake” approach to the value in art. Over time, Formalists came to suggest that to achieve the Aesthetic Experience is was not enough to be in the presence of an aesthetic object, but rather we had to adopt a special mode of appreciation. They suggest that to have aesthetic experience we must adopt an “Aesthetic Attitude,” a “Psychical Distance,” or an “Aesthetic Viewing.”

So on this view:

1. Nearly any object can be the object of aesthetic attention and therefore an Aesthetic Object.

2. The proper way to engage and critically evaluate art is to adopt the “aesthetic attitude.”

3. Once adopted, the aesthetic attitude precludes having an obscene reaction (since you are not paying attention to what is being represented; you are merely attending to the formal elements and their formal arrangements).

4. If you are looking at an object of art and having an obscene reaction, you are not “distancing” the work sufficiently.

So from all this it would follow that:

5. To find Mapplethorpe works obscene is to misperceive them.

Indeed this was the testimony of some art critics at the trial. The important features of Mapplethorpe’s photos was NOT the content depicted, but rather were the lines, shapes, texture, color values they exhibit.

However

• I don’t think even Mapplethorpe would have wanted that defense.

• He WANTED to be shocking.

• After all, he has already done the formal flower studies and portraits.

Further, the fact that Mapplethorpe's work can and does incite aesthetic reactions and was designed to be viewed as art, and given that is has been accepted as “art” by many in the “art community” we have good reason to believe that these objects are at least strong candidates for being labeled "art.“ Whether it also incites obscene reactions does little to lessen the strength of the above evidence.

Simply put, it seems we have good reason to think that some genuine instances of art can cause “obscene” reactions in viewers and these viewers are doing nothing “inappropriate” when they have these reactions. If this is so, then being art does not prevent something from being obscene and being obscene does not prevent something from being art.

Government Funding Art:

But the controversial nature of Mapplethorpe and Serrano raised a separate issue. Should the government be funding art at all? Obscene or not?

The Libertarian position, defended by John Hospers (1918 – 2011) and Robert Nozick (1938 – 2002), rests on the principle that the only legitimate function of any government is to function to the benefit of the people in a way that they alone or individually cannot adequately address, and most specifically to provide protection of its citizenry and their rights.

Taxation, or the forcible exacting of moneys from citizens by the government, can only be justified if it is done specifically to meet the security needs (rights protection) of the citizens which they themselves individually cannot meet. This is the strong Libertarian line and would, of course, judge government taxing citizens for the purpose of funding the arts as unjust. It also judges taxation for many "general welfare" including public education and care for the indigent as equally unjust.

Strong Libertarianism claims that we have a natural right to be left alone and to dispose of our property as we choose without governmental interference. They advocate a Contractualist moral theory, that we have negative rights only and incur no positive obligations other than those we freely accept. The noble end of "social welfare" does not override the natural negative right to life or to possession. Citizens do not have positive rights (to education, housing, food, jobs, et cetera) and therefore have no positive claims on their fellow citizens. Government, in its lone role of “rights protector” plays no part on securing social welfare and when is uses it coercive powers to do so it acts unjustly, exceeding its charter.

But for reasons we have already discussed in class, the contractualist’s denial any positive rights strikes many (me) as counterintuitive. Let’s imagine we convince the Libertarian to modified her view. The Modified Libertarian accepts that humans do have natural entitlements, that is, some positive rights. This being so, members of society do have some positive responsibilities (to the welfare of other members of the community for instance) whether they have freely accepted those responsibilities or not.  On this modified view the Libertarian remains committed to the belief that government must protects rights of the citizenry which they cannot adequately protect without aid of a corporate body.

Even if the moral obligation to protect positive rights is a compelling reason for abandoning Strong Libertarianism and adopting a Modified Libertarian position, this concession does nothing to upset the general Libertarian principle that coercion by government is an evil and only justified when necessitated for the protection of other rights. Taxation remains an intrinsically bad practice, but one justified in just those instances and for just those purposes. The question at issue now is: “Can one justify the practice of taxing for art?” or more specifically “Is there any positive right which one can cite to justify this practice?” To claim that government should fund art projects requires we establish:

1. that art projects fall under the rubric of social welfare, specifically analogous to the claims which public education makes against the government. (That citizens have a “positive right” to art.)

and

2. that the private sector cannot adequately address funding art projects without the assistance of government (presumably not for lack of funds, but for lack of coordinated vision or desire)

But does it seem reasonable to claims that people have a positive right to art?

• Art projects are not analogous to the claims of public education.

Nevertheless, let’s assume it there is some “right to art.” But this alone would not justify government involvement. After all, we have art all around us. We have broadcast television and radio which anyone can afford. Only slightly more difficult to access to all sorts of art on the internet. For modest sums one can purchase movie tickets or see live music and dance performances. So we really do not need government to fund it.

Some might object that yes, we do have “pop” art, but not are if sufficient quality. So for the alleged positive right to justify governmental taxation to fund the arts, the positive right would have to be a positive right to art of a particular quality, perhaps meeting some minimum aesthetic standard. But it id far from clear how such “minimum aesthetic standard” could be set.

Even if one could be found, to keep the case analogous to public education, the eligibility for funding of the art could not be determined on their aesthetic quality, but only on their social merits, just those social welfare rights the taxation supposedly necessitating the taxation. The question of whether these art works indeed increase the social good depends directly on the needs/claims of the citizenry. The populace may be justified in demanding from the government support for such items as education and indigence-protection because these are obvious social needs which an individual could not reliably secure himself or herself. This does not apply to the question of art however. Firstly, people do not need art to survive. It is far from clear (indeed seemly false to claim) that citizens "need," in any robust sense of the word, art. Further, any (minimal) art needs one might allege can be and are addressed adequately by the individual himself or herself though the private sector.

The counter-claim may come that part of the government's responsibility is to address those aspects of the society that do not merely meet the survival expectations of the citizenry, but lend to the flourishing of the society. It follows, they would claim, that art projects, and art projects not reliably guaranteed by the private sector, contribute to the flourishing of the society.

The idea that art and public access to art would disappear were it not for the admittedly small amount of money distributed by the NEA is unreasonable. The only slightly less silly a view, that private funding would only secure art of inferior quality or pander to popular tastes and popular opinions presumes both that there are objective aesthetic standards and that only unpopularity or marginalized opinion is necessary for aesthetic merit. Both of these views are highly controversial and, I believe, patently false.

Further, what precedent do we set if the only case needing to be made for governmental funding (and taxation) is that the project -- whatever project -- would increase the “flourishing” of the society. Weekly allotment of broccoli, carrots and cauliflower to the citizenry will enable society to flourish insofar as they would be insured a goodly amount of vegetables in their diet (something most contemporary Americans do not enjoy). "Flourishing" is too vague a concept upon which to build a justification for the government taxation.

A Libertarian would plausibly claim that the "flourishing" of society is not a right of a person. Violating a (known) right to property via taxation is not justified even by this noble end. If society is to flourish, and this to be a moral consequence, it must be because people choose willingly to make is so and not because government uses its force to command it against the will of the governed. Unless one adopts the dubious (and currently unfashionable) distinction between real or “high” art (the stuff exclusively of Museums and Opera Houses) and non-art (pop-art), then one would have to admit that art is ubiquitous, even unavoidable, and therefore does not constitute a need which citizens cannot meet on their own.

One might claim that while the distinction between high and pop art is more fluid then previously thought, commercial, mass produced art, while readily accessible to even the most impoverished, does not fulfill the aesthetic/artistic needs of the citizenry. But such an objection would require not only explaining a very precise aesthetic/artistic need, but why it is that these values cannot be secured though popular media. Further, it is simply implausible to think that it is the government's charter to provide for the raising (altering) of public aesthetic taste. This outdated notion is rejected by modern political theory (from Hobbes on, excepting perhaps Marx and various religious theorists). It is generally accepted that what sort of interests the people have and develop should be left to the people themselves.

Finally, we are left then with a paradox: it is just those art projects that the public does adequately fund which are the projects which ought to be funded (are most valued). Governmental funding would only duplicate the private sector (and be thus unnecessary) or fund precisely the art that the public, by and large, does not want, value or like. But what moral justification is there for either? The solution to the paradox is this: allow the private sector to fund what it will, allowing the public, by virtue of the voting power of its dollars, to decide what artforms and art projects will be funded. There is little chance that the purveyors of rock videos will be called on to reduce their budgets if the government ceases funding of art. This is because the private sector believes and believes strongly that rock videos are worthy of its dollars.

If operatic productions suffer, they suffer on the basis of the commitment of the private sector to them. If the populace wants operatic productions badly enough, they will pay the very large ticket prices that a cessation of governmental support would precipitate. Or perhaps operatic budgets will be reduced, and (say) operatic sets will be less elaborate, or perhaps there will be fewer performances. In any case, the artforms/art projects worthy to be funded, given the likes and dislikes (and subsequent dollar commitments) of the populace, already are. To force the government's involvement in art funding in this area is only to complicate things and generate the paradox that what the populace deems valuable (projects most worthy of funding) are just those projects that do not need funding. Should the majority's dollars be spent to insure that the art enjoyed by the minority is maintained?

Again, such a redistribution of private property can only be justified if the minorities art needs (as opposed to preferences) were going unmet. But there, as yet seems to be no art needs, much less needs that would otherwise go unmet. It would seem then that the majority should spend its money on what it enjoys and allow the minority to spend its money on what it enjoys, and the government does not appear to be needed. There is no question that Libertarianism in general is a difficult pill for many Americans to swallow, and one they see little reason to ingest. There is also little argument about the controversy of the claims I advocate in this paper. No doubt many will believe that there is simply a huge difference between the value of rock videos and the value of operatic productions.

The problem is that the value upon which this judgment is founded is aesthetic in nature. And the only value upon which the government ought be allowed to make the determination as to which art projects would be funded is not aesthetic, but is on social grounds. The majority has cast their votes, and rock videos are well secured and well endowed. If the minority, perhaps those with more (shall we say) ambitious aesthetic tastes, wishes to fund those art projects which are more delicate, more cognitive, more aesthetic, then they must muster support for these projects from within their own ranks or broaden their appeal.

Further, if artists and the rest of the arts community believe that they have something of great value to share with their community, then the burden rests with them to convince their community as to value what they offer.