The U.S. Supreme Court ruling Wednesday upholding an Ohio child pornography statute slightly roils the controversy over the exhibition of photographs by the late Robert Mapplethorpe at a Cincinnati museum, but the effect is likely to be slight, legal scholars agreed Wednesday.
The court upheld an Ohio law making it a crime to possess so-called kiddie-porn materials--even in the privacy of one's home. While two of seven Mapplethorpe photographs held by a Cincinnati grand jury to be obscene are images of young children in various stages of undress, the newly affirmed Ohio law apparently includes language that leaves legitimate museum displays unaffected, legal scholars agreed.
But experts in arts and obscenity law agreed that broader-brush implications of the obscenity prosecution by city officials of the Contemporary Arts Center for exhibiting a show of Mapplethorpe's work represent a potentially frightening escalation of threats to artistic freedom of expression.
Yet other experts--though they agreed that the risks to arts freedom implicit in the Cincinnati prosecution are real and the stakes high--suggested Wednesday the case may end up helping to resolve the yearlong national debate over what is appropriate for government to control in the content of art.
The debate has focused primarily on the financing and regulatory authority over the National Endowment for the Arts, the federal government's most visible cultural agency.
Even one of the nation's best known conservative lawyers--a man Sen. Jesse Helms (R-N.C.) recommended to testify in support of his opposition to the NEA at a Senate hearing next week--condemned the action of Cincinnati prosecutors as "counterintuitive and wrongheaded."
The Cincinnati museum was criminally charged 10 days ago after police and local prosecutors objected to the sexually explicit nature of some of the Mapplethorpe images. The charges resulted from a weeks-long controversy over the erotic content of the Mapplethorpe show, which roused controversy last year when the Corcoran Gallery of Art in Washington refused to accept it in a failed attempt to lessen controversy over the exhibit's role in the NEA furor. A local judge has said he will meet with prosecutors and museum lawyers April 30 to try to scheduled a trial date. The museum and curator Dennis Barrie were charged with two misdemeanor counts of pandering and illegal use of a minor in pornography.
Parading a local grand jury through the Mapplethorpe "The Perfect Moment" exhibit, said Bruce Fein, a private legal consultant formerly on the staff of the conservative Heritage Foundation in Washington, "was extremely injudicious." The charges against the museum and Barrie cannot possibly meet requirements for legitimate sexually explicit art established by the Supreme Court in a landmark 1973 ruling, he said.
It is that case--Miller vs. California--that appears to remain the controling element in the legal drama the Contemporary Arts Center-Mapplethorpe case has brought into being. In Miller, the Supreme Court established a three-way test to be used to decide whether something can be legally declared obscene. The material in question must be interpreted "by the average person, applying contemporary community standards" as something that "taken as a whole, appeals to the prurient interest."
But it must also be material that is sexual in "a patently offensive way" and that in its entirety "lacks serious literary, artistic, political or scientific value."
The Mapplethorpe photos, said a variety of legal experts, might be construed as challenging the first two elements of the Miller test. But, said Fein and Floyd Abrams, a noted Washington First Amendment lawyer, it is almost inconceivable that the process by which respected, curators at a mainstream museum like the Contemporary Arts Center select work for displayed could fail to meet the Miller standards in the all important third area.
"People don't usually walk into museums to have their prurient interests aroused," said Fein. "I think it's a very maladroit use of the criminal justice system to go after a curator here. This is not some kind of degenerate conduct that is worthy of criminal prosecution. It's very difficult to suggest that this is a kind of an adult shady bookstore."
Abrams agreed, calling the case against the Cincinnati museum "outside the realm of obscenity prosecutions in living memory." But with the Wednesday Supreme Court ruling as a backdrop, Abrams contended the potential for serious effects of the Mapplethorpe case is great, nonetheless.
If the museum and curator are convicted, Abrams said, the Supreme Court might decline to accept an appeal--an action that would not alter the existing national obscenity doctrine, but would leave the conviction intact. The court, Abrams said, could hold that if any Cincinnati jury that convicted the museum was properly instructed in the Miller case doctrine, it would be best to simply back off and leave the Contemporary Arts Center and its curator with a conviction in its record.
"I guess my bottom line is people are right in saying the (Cincinnati) case may just go away and maybe this is just a spasmodic flurry," Abrams said. But in the context of the situation's potential to add to the chilling effects already engendered by the fractious, year-long NEA debate, he said, "this has within it the potential to be a very large case."
H. Louis Sirkin, the Cincinnati museum's attorney, said he has been prepared to deal with the Ohio child-porn law since the charges were brought--so Wednesday's ruling doesn't affect the museum significantly. But, said Sirkin, the case has the potential for enormous effects.
"Art to me, and particularly contemporary art, shows the good, the bad, the indifferent," Sirkin said. "That's what Mapplethorpe was doing, showing life as it was to him. When we start to tread on what an artists or the art world thinks, then you're starting to tread on the freedom of expression."
Despite the potential for major ramifications, though, Anne Murphy, director of the Washington-based American Arts Alliance, said the clouds created by the Cincinnati crisis may turn out to have a silver lining, after all. "I think in the long run, this is helpful," Murphy said.
"I think people are forced now to sit back and look at some of the ramifications. It really comes to to what is more harmful to the American way of life, a few pieces of art or the police invading institutions of higher learning. It gets pretty darn clear. The question is not what is good art or bad art or dirty art. The question is who makes the decision."