Banish Pornography, Mapplethorpe Jury Told : The arts: In opening statements, prosecutor says the 1st Amendment isn’t an issue. Defense argues that the photos are troubling but important.


The prosecutor in a precedent-setting obscenity trial told jurors Friday that they have the opportunity to “draw the line” on pornography, banishing it from museums and art galleries just as it now is barred from Cincinnati’s movie theaters and video stores.

In the nation’s first prosecution of an art gallery on obscenity charges, the jury was told that 1st Amendment free expression rights are not an issue in the case.

“The only issue,” prosecutor Frank Prouty said in his opening arguments, “is whether or not these seven pictures are in violation of the law.”


The seven photographs in question were among 175 works by Robert Mapplethorpe displayed for seven weeks last spring at the Contemporary Arts Center in Cincinnati.

A grand jury found the photographs obscene last April and charged the center and its director, Dennis Barrie, with two counts each of pandering obscenity and using minors in nudity-related material.

Five of the photographs depicted aspects of a sadomasochistic gay lifestyle. The two photographs showing minors were portraits in which the subjects were partially undressed.

Defense attorneys on Friday sought to portray the 50-year-old center as a respected cultural institution that brought “Robert Mapplethorpe: The Perfect Moment,” a retrospective exhibit, to Cincinnati for its artistic and cultural value.

H. Louis Sirkin, Barrie’s attorney, described Mapplethorpe as an important artist whose often beautiful but sometimes troubling work provides glimpses into his own soul and into an underground gay lifestyle that flourished in New York in the 1970s.

It is “a world that existed in a period of American history that we may never, never have again and perhaps should never have again,” Sirkin said.


“Art is not only to be pleasing to the eye,” Sirkin said. “Art is to tell us about ourselves, to make us look at ourselves and to tell us something about the world around us.

“This particular artist not only did beautiful pictures,” he said. “He did other pictures that were not so beautiful, but they were pictures of a world that he was a part of.”

The attorney said of the exhibit, which traveled to several cities and now is in Boston: “It was not brought here to appeal to anyone’s prurient interest. It was brought here to teach and to show, to show the world this brilliant photographer and some of the inner workings of this man and also some of the torture that perhaps he suffered.”

Mapplethorpe died last year of AIDS.

Before the start of opening statements, the eight jurors and two alternates were escorted to the downtown arts center. They were ushered just inside the door by a bailiff and allowed to look around for less than a minute before they were led back to a bus.

Back in the courtroom, they received capsulized lessons in aesthetics and in the sadomasochistic sexual practices Mapplethorpe depicted. One witness, police officer David G. Ruberg, testified about sexual practices in the gay community and described events leading up to the serving of indictments at the center on April 7, the day the exhibit opened to the public.

The jury consists almost entirely of working-class men and women from the suburbs who do not often visit art galleries or museums. Only one of the eight jury members has a college degree.


In his opening statement, prosecutor Prouty told the jury: “There has never been a museum or art gallery or whatever charged with displaying obscenity. There has never been an institution where the obscenity issue has come up in these circumstances. Therefore you have a chance to decide on your own where do you draw the line. . . .

“The question becomes ultimately, ‘Are these the kind of pictures that should be permitted . . . in an art gallery or any place?’ ”

Defense lawyers tried to show that the art center had taken voluntary measures to ensure that no one under 18 would see the exhibit. They also said the center filed a lawsuit two weeks before the show opened in which it sought a ruling on whether any of the photographs were obscene by community standards. The lawsuit was dismissed.

Before the start of trial, Hamilton County Municipal Court Judge David J. Albanese issued two rulings that damaged the art center’s case. In one ruling, issued earlier this month, he said that only the seven photographs described in the indictment are to be considered by the jury.

Sirkin and Marc Mezibov, the art center’s attorney, argued that the entire 175-piece exhibit should be studied by the jury because of a 1970 U.S. Supreme Court ruling that said, in part, that works of art must be judged “as a whole” in obscenity cases.

Albanese ruled that each photograph is a complete work unto itself, which means essentially that Barrie and the center may be convicted if only one photograph is found to be obscene.


Albanese’s other important ruling came earlier when he determined that the art center does not satisfy the Ohio statutory description of a museum. Without this ruling, the prosecution could not have proceeded because museums are exempt from Ohio’s obscenity statutes.

Despite his ruling, Albanese himself inadvertently referred to the center as a museum Friday, as did the prosecutor and defense attorneys.