Art, Censorship and the First Amendment

On this month’s episode, Steve and Katie dive into the charged topic of censorship. With guest Professor Amy Adler they talk about government and non-government attempts to censor art, what the legal boundaries are and where the law actually has little if nothing to say about censorship of art. They describe applicable First Amendment doctrine, apply it to art and examine particular examples of art “censorship” from the culture wars of the 1990s through today, from both the political right and left.

Resources

Cases:

NEA v. Finley, 524 U.S. 569 (1998)

https://supreme.justia.com/cases/federal/us/524/569/

Brooklyn Institute of Arts v. City of New York, 64 F. Supp. 2d 184 (EDNY 1999)

https://law.justia.com/cases/federal/district-courts/FSupp2/64/184/2578531/

Miller v. California, 413 U.S. 15 (1973)

https://supreme.justia.com/cases/federal/us/413/15/case.html

Episode Transcription

Steve Schindler: Hi. I’m Steve Schindler.

Katie Wilson-Milne: I’m Katie Wilson-Milne.

Steve Schindler: Welcome to the Art Law Podcast. The monthly podcast exploring the places where art intersects with and interferes with the law.

Katie Wilson-Milne: And vice versa. The Art Law Podcast is sponsored by the law firm of Schindler Cohen & Hochman LLP, a premiere litigation and art law boutique in New York City.

Steve Schindler: Katie, what day is it today?

Katie Wilson-Milne: Steve, it’s censorship day.

Steve Schindler: Wow. I’ve been looking forward to this for a long, long time.

Katie Wilson-Milne: Me too.

Steve Schindler: Today, we’re going to talk about art and censorship and the history of censorship in the United States in particular. And we know that artists often push the bounds of what is acceptable and dive deeply into areas that can be perceived as controversial. So today, we want to talk about the free speech aspects of art and its expression. That has a long history in the United States, going back even into the 19th century with the passage of the Comstock Laws which regulated the transfer of materials that were deemed to be obscene. And certainly historically the United States has had a little bit of an obsession with obscenity and particularly with materials that depict sexuality and that has turned into a long series of Supreme Court cases, particularly in the 1970s and later, trying to define what fell outside of traditional First Amendment and what didn’t. So today, we are going to talk about censorship and what it means to suppress art and the expression that art contains both from a government point of view which implicates our First Amendment in the United States and also from a broader social context today. So Katie, could you elaborate on this a little bit?

Katie Wilson-Milne: So traditional free speech concerns in the context of the First Amendment revolve around government censorship of private speech or art created and promoted by the public. But it’s more complicated than that, or it certainly seems more complicated than that at this moment in time in the United States. So on this episode, we want to dive into these issues and define what censorship means, when it is illegal, when it isn’t, and why censorship of art maybe different than censorship of pure speech or the spoken word. While the law has a lot to say about when censorship of art can occur, non-government actors can also engage in censorship. But that is certainly not illegal. It’s still maybe worth examining however in the context of our quote-unquote “free speech” society and public discourse. We will discuss these issues today with Professor Amy Adler, who is our esteemed guest.

Steve Schindler: We’re here today with Professor Amy Adler. Professor Adler is the Emily Kempin Professor of Law at New York University School of Law where she teaches art law, First Amendment law and feminist jurisprudence. Professor Adler’s recent scholarship addresses an array of issues such as the First Amendment treatment of visual images, the misfit between copyright law and the art market, the legal regulation of pornography and the moral rights of artists. A graduate of Yale Law School, Professor Adler is a leading expert on the intersection of art and law which is why we’re so delighted to have her here on this podcast today. Welcome, professor.

Amy Adler: Thank you for having me. It’s a pleasure.

Katie Wilson-Milne: So Amy, we want to talk about art and censorship, and I think there is a lot of confusion in our culture right now about where the law intersects with concerns about censorship. So we’ll try to tease some of that out with you, but first why don’t we start if you could give our listeners an explanation of how censorship actually does intersect with the law and what does the law have to say about censorship?

Amy Adler: So the main text for thinking about this question is the First Amendment of the constitution and the relevant language from that amendment is “congress shall make no law abridging the freedom of speech” and interpreting what that means and how that applies has actually led to an enormous body of law that is actually quite a patchwork and it’s actually harder to disentangle and needs different things in different areas. I like to think about what Justice Brennan said and if you could boil down what the First Amendment means, this from a case called Texas v. Johnson, a flag burning case where the court protected the right of the dissenters to burn the American flag in a very controversial decision, and he wrote for the court, “If there is a bedrock principle underlying the First Amendment, it is that government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” So if you can capture the principle that’s it, but just figuring out all its twists and turns and how it applies and then extending it to art will lead us down many, many different pathways.

Katie Wilson-Milne: So artist is speech protected like any other kind of speech under that doctrine?

Amy Adler: You know, it’s actually a very difficult question whether art is in fact speech. And I think the Supreme Court has assumed it is, that assumption has arisen in a couple of places. For example, in obscenity law, the court has made an exception for things that are otherwise obscene if they have serious artistic value, suggesting that art is clearly protected under the First Amendment. The other place the court has assumed art is protected is in a case where they talked about the unquestionably shielded paintings of Jackson Pollock. But the reason, it’s an assumption and sort of a problematic one, as many scholars have struggled with and some courts as well, is that it’s kind of hard to think about art in the same way that we think about those sort of paradigm stuff under the First Amendment, which is political speech. You know, that’s somebody speaking and you’re making a political assertion in writing or language. That’s obviously speech. An abstract work of art? What makes that speech is actually a much more difficult question.

Katie Wilson-Milne: Right.

Steve Schindler: So does it matter then what the subject matter of the art is in terms of whether or not it’s protected speech, for example would a landscape painting be some form of protected speech or would it have to have some political or social content?

Amy Adler: So scholars have debated this and I think the answer is probably that all artwork is protected speech and by the way, the second circuit has said that, that all art is protected speech. But the reason we protect speech is usually because it communicates an idea or communicates a political idea, and it’s pretty hard to shoehorn things like abstract paintings or landscape painting into the language of ideas let alone into the language of politics. And so one thing that I’ve thought about a lot in my scholarship is just generally the easier time we have in the First Amendment when we are dealing with text as opposed to images because images just don’t lend themselves as easily to this idea of… sorry to be redundant, the idea of ideas.

Katie Wilson-Milne: So in text, do you have the same question that is anything expressive protected? Or does it have to have some viewpoint behind it, some political viewpoint? Obviously when you get into the political realm, these are easier questions.

Amy Adler: Yeah, I think speech does not have to be political to be protected but it has to be recognizable as speech and so there is an interesting sort of article recently where someone wrote about whether nonsense speech is speech. You know, texts like jabberwocky or something. So these are sort of the interesting, I guess side questions, but generally speaking, anything we say or write is speech for purposes of the First Amendment unless it violates some boundary that the First Amendment will not protect such as if it’s obscene under the First Amendment’s reasoning or if it’s a true threat or fighting words or some of these doctrines under First Amendment law.

Katie Wilson-Milne: So generally for our listeners, we can assume that artwork is speech like the spoken word and it’s generally protected that way.

Amy Adler: Yes, although, it rests on a less firm foundation than verbal expression.

Katie Wilson-Milne: And also to be clear when we are talking about legally protected speech, we’re talking about a relationship, right, between the government as censor and a private individual or group of individuals, right? I mean, what’s the boundary in terms of the actors who are involved in terms of what’s protected?

Amy Adler: Yeah, so that’s an important point and I think it gets lost all up, but the First Amendment only applies against the government. The First Amendment says congress shall make no law, that’s of course extended to the states as well. Private organizations can discriminate against speech based content all they want. It’s simply the government that can’t do that and so censorship in a legal sense is really when the government is retaliating against or somehow prohibiting speech of its citizens.

Katie Wilson-Milne: Can the government censor its own speech?

Amy Adler: No. Well, I mean, there is no such thing as censorship of its own speech because the government can – there is a doctrine called the government speech doctrine which means the government can say anything it wants. The Supreme Court has really been building up recently in a case involving a public monument, a Summum case, where the court just said the First Amendment doesn’t apply when the government is speaking on its own behalf. And there are no limits in that realm.

Steve Schindler: And that was the case in the Richard Serra case a number of years ago, where Richard Serra challenged the government’s taking down of his site installation “Tilted Arc” in Federal Plaza in New York, and one of the arguments he raised was that, that was a violation of his first amendment rights and Supreme Court said, “You don’t have that right. It’s the government’s work and they have the right to display it or not.”

Amy Adler: Yeah, and interestingly the second circuit was somewhat ahead of the Supreme Court in that they didn’t really have all the language of the government speech doctrine at their fingertips at the time, because the doctrine evolved since then. But that was the principle. And I’ll just add – a funny thing about that Serra case was that one of the reasons the court had trouble understanding this first amendment claim goes back to this question of whether art is speech. You can’t give us a sort of clear statement of what the meaning of his artwork was. So why is this even speech? There were some questions around that that goes back to the question that we originally pushing on which is you know, that difficulty of shoehorning art into this model of rational ideas on which free speech is grounded.

Katie Wilson-Milne: So how do museums fit into this, or how do they not fit into it?

Amy Adler: Yeah. So government museums, like the Smithsonian would be an example are government by the First Amendment, whereas private institutions and we’ve seen several controversies recently involving private institutions, are not constrained by the First Amendment generally speaking.

Katie Wilson-Milne: And those could be private institutions that are 501(c)(3)’s and get a lot of their funding from the government but have discretion over their curatorial output.

Amy Adler: Yes, for example the Whitney, which has been in the news a lot over controversies about speech, would be considered a private institution for purposes of the First Amendment and not constrained at all by law in terms of its decision to show or not to show a work of art.

Steve Schindler: How would that work if most exhibits receive funding and some receive government funding? So what would happen if the Whitney were showing a controversial piece which was sponsored through a grant from some government foundation or organization and the government decided to withdraw the funding because they found the work displayed as offensive.

Amy Adler: So that would get into this, you know, I’ve talked about all the patchwork areas of the First Amendment. There is one area that has to do with government funding and there was a famous case that you know about of course involving the Brooklyn Museum of Art, where then Mayor Giuliani who is certainly the news these days, tried to basically shut down the Brooklyn Museum of Art because he didn’t like the art they were showing and…

Katie Wilson-Milne: Should we describe the piece briefly?

Amy Adler: Yeah, yeah, yeah.

Katie Wilson-Milne: There was an exhibit that one of the works that was objectionable among many if I’m correct was a Chris Ofili piece that was depicting the Virgin Mary, but she was eclectically depicted and clad and one of her breast was exposed and it was actually depicted in elephant dung, which is something Ofili does regularly in a lot of his paintings not just with this painting. And Giuliani’s objection and many other people’s objections was that it was disrespectful of religion.

Amy Adler: Yes, exactly.

Katie Wilson-Milne: And he the religious hook to go after the museum.

Amy Adler: Absolutely and he threatened the museum and said you can’t show these kinds of blasphemous works and in that case, the Brooklyn museum actually won in court, because although, it’s a little murky what the lines are of government funding of art, Giuliani crossed it by singling out really what was a viewpoint saying, “you can’t say this or I’m gonna punish you.” They said, that looks too much like a violation of the First Amendment, and he lost that case in court. So there are limits on how much the government can control the speech in museums and the curator’s speech in museums. But there is a lot more leeway for museums, even government museums, to make curatorial decisions that are not violating the First Amendment.

Katie Wilson-Milne: I think one of the sort of confusing aspects of this, or seem confusing to people, is the government is free not to fund, right. And isn’t that in a way censorship itself? What they choose to fund and what they don’t. Like the New York City of Cultural Affairs. They are funding what they want to fund, and that actually has a great deal of impact on what speech gets out there.

Amy Adler: You know, this was in another case involving government funding. That was Justice Scalia’s argument in a way. But he said, you know if your funding is by its nature already selective, you’re picking and choosing what kinds of stuff you like. You’re choosing good art over bad art, as at least the NEA is supposedly doing. So you’re choosing art over science. Why are we doing that? And so, so there are questions about how to think about funding the First Amendment landscape, but the general rule that the court has come up with is that you are allowed much more leeway to pick and choose among ideas when you’re funding speech than when you’re threatening to send someone to jail for saying something that you don’t like, that the government doesn’t like and so, but it is, it’s a, it’s a good question.

Katie Wilson-Milne: Is there a line between you’re free to fund or not fund but once you fund, I mean, this is what the Brooklyn Museum case seems to suggest – that once you fund then your hands are kind of tied, if you’re a government actor.

Amy Adler: That’s absolutely right. I would say your hands are tied, but only at an extreme limit. I think what we see from the Finley case, which was a case that – I don’t know if we want to give background on that or not.

Steve Schindler: Sure, I think it would be interesting, because it takes us back to the culture wars of the 1990s and it was really a case that was cited by the Giuliani administration in their argument.

Amy Adler: Yeah.

Steve Schindler: So maybe you could give us a little bit of background on that.

Amy Adler: Yeah and it really does go back to the culture wars of the 1990s because it had to do with an amendment to the funding statute of the NEA that was passed in the wake of the controversy over government funding of two particularly controversial artists, Mapplethorpe and Serrano. And congress passed a law, they were very upset about what they thought was this shocking elitist art funding going on and funding blasphemous and sexually offensive work.

Steve Schindler: Well that was the perfect moment exhibit, the one that also featured at the contemporary art museum in Cincinnati, that what were viewed as homosexual, sadomasochistic works.

Amy Adler: Which was typical for at least a large period of Mapplethorpe’s photographic work.

Steve Schindler: And Serrano’s work was his “Piss Christ,” which was a crucifix in his own urine.

Amy Adler: Yeah. And both works caught the attention of the public, caught the attention of congress and led to basically a political firestorm. The Corcoran Gallery of Art actually decided to self-censor a Mapplethorpe exhibition that was winding its way there from Philadelphia because of all these controversy in congress over funding.

Steve Schindler: And was that ever challenged?

Amy Adler: No, because the decision –

Katie Wilson-Milne: Or could it be?

Amy Adler: I don’t think that’s a first amendment violation. I think well, it’s interesting. I don’t know the answer to that question but I don’t, I never thought of that as a first amendment violation, to choose not to show work in a museum. I don’t think so. But what ended up happening, and in some ways it shows the multiple avenues that the First Amendment can travel with Mapplethorpe is that, first we had a debate in congress. It led to the self-censorship issue with the Corcoran. It led to an obscenity prosecution in Cincinnati against a museum and its director, where a director was facing possible jail time for showing work, and also led to restrictions on funding debates that later were adjudicated by the supreme court in a case involving Karen Finley.

Steve Schindler: What was the result of that case? What did the court say?

Amy Adler: Of Mapplethorpe or Finley?

Steve Schindler: Oh, I’m sorry. The Finley, the Finley case.

Amy Adler: So in Finley, the court, I’m paraphrasing, was considering language amending the government funding of the art statute under the NEA, in which it said, “in making grant selections, the NEA should take into consideration in addition to artistic excellence decency and respect for the diverse beliefs of the American people.” And this was language that congress came up with after several attempts that actually violated the First Amendment earlier to try to stamp out funding for people like Mapplethorpe and Serrano. But they did it in such a vague way that the Supreme Court actually said, “oh, that doesn’t mean anything. That, just means, you can take it into consideration, decency and respect, but you don’t have to only fund work that’s decent and respectful.” And because it’s only a consideration, you’re allowed much more leeway in the realm of funding than you are in the realm of sending someone to jail for saying something you don’t like. So therefore, that’s okay. So it shows that there is a significant leeway in the funding realm that we can have and yet there is a backstop and a limit that the Brooklyn Museum case shows. When you actually say, “you said something that I don’t like and I’m going to shut down your museum for it.” That is when you’ve gone too far in the funding context.

Katie Wilson-Milne: But there is a big area in between where you can make discretionary decisions about what you fund and don’t fund.

Amy Adler: Absolutely. Absolutely and what you can show and what you don’t show. And curatorial choices, there is also a lot of leeway for that. There is an interesting case by Judge Posner involving a small government state college exhibition in which he said, you know, we are not going to let a curator’s decision to move around or not show it and put it in a different part of the museum because it might be offensive. That’s not a first amendment violation. Otherwise, we’re going to get too inside the business of museusm. So that’s another place where we see a tremendous amount of leeway for even government museums.

Katie Wilson-Milne: Can you talk a little bit about art on government property? Because there is this line of cases, right art in the course house that’s been commissioned or art in an office building, and there have been controversies which, I think can seem surprising to people. “The government owns the building, shouldn’t they get to say what’s there or not. But it’s not that simple.

Amy Adler: Yeah, well to the extent it’s deemed the government’s own speech, then it does fall under this weird exception to the First Amendment where the government can say anything it wants.

Katie Wilson-Milne: Or not say anything.

Amy Adler: Or not say anything it wants, absolutely. Yeah.

Steve Schindler: Is that because they are not making a law prohibiting speech, they are just speaking. What’s the rational for that?

Amy Adler: Well, I mean I think, if you really, it makes sense that we let the government speak on its own behalf all the time. Like on the fourth of July, the government can have a big fourth of July parade and they don’t have to also have a “maybe King George wasn’t so bad” parade. They are allowed to sort of take a side of a debate and promulgate their point of view all the time. We want the government to do that. The question is would we want the government to suddenly erect monuments everywhere saying “democrats are evil.” You know like under this administration, when a republican administration is in power, are there any limits to what they might say? And the Supreme Court surprisingly has said the First Amendment is not a limit there. It maybe that there are other aspects of the constitution that would limit it, and that at the end of the day, the ballot box is the limit, you know. Vote them out of office, if you don’t like the monuments they’re erecting or the speech they’re saying. But it’s really an interesting place where there is hands off what the government says.

Katie Wilson-Milne: And there are situations in which the government creates a public forum or a limited public forum on its own property. Within those considerations change.

Amy Adler: Yes. Absolutely. If it’s opened it up to free speech of others, not just its own speech, then absolutely. Then the rules of the First Amendment really apply and it can’t start picking and choosing among different viewpoints or speakers.

Katie Wilson-Milne: You know, which is interesting. You can see that incentivizing the government to not open up as much space, because they don’t know how they are going to be restricted.

Amy Adler: Yes. Absolutely. I mean, I think this is in background just to go back to funding for a second. Thinking about the incentives in a lot of these cases. If we put too much restriction on the government in what it can fund, there is an incentive for the government just to say, I’m not funding anything. So I think, you know these policy considerations also lurk in the background of some of these legal decisions.

Katie Wilson-Milne: Right. So in the 90s, we talked about the culture wars. There were a lot of controversial speech issues. There were issues with pornography, both from the left and the right. There was a call for, you know, debates about whether hate speech was constitutional but also if it was right, and then this religiously insulting speech that we talked about, Giuliani targeting at the Brooklyn Museum. I don’t know if you can talk a little bit about how some of those issues in the 90s, implicated the law in terms of censorship and art?

Amy Adler: Yeah, so one big concern of basically right-wing conservatives was pornography and obscenity in art. We talked about Mapplethorpe earlier and his–

Steve Schindler: What’s the difference between pornography and obscenity?

Amy Adler: Oh, yeah, that’s a good question. So pornography is I guess a colloquial term. Obscenity is a legal term of art that really indicates a realm of speech that is not protected by the First Amendment, that’s no longer speech. It’s a subset of pornography, and it’s an increasingly small subset of pornography as we’ve seen a shift in the enforcement of obscenity law over the last 20 years.

Steve Schindler: Right. I think it’s probably still most enforced in the area of child pornography

Amy Adler: Yes, which is a separate legal domain and that scenario, that’s very, very vigorously enforced by the government, and it has been growing in terms of an area of government concern as the problem of child pornography has grown. Whereas obscenity law, which was once a very significant threat to free expression and to artists, particularly to writers over the course of our history where many great works of literature were banned, Ulysses was banned, Lady Chatterley’s Lover was banned. All of these things, has declined dramatically in importance and part of it was just an overt decision made by the government to stop prosecuting obscenity very much and to focus in fact on child pornography as the more serious problem. And as a result and concomitant with that, or at the same time as I should say, we went through a digital revolution and a sexual revolution and we are now living in a much, an almost unrecognizable society in terms of how porn-soaked we are compared to how we were even 20 years ago, let alone 40 years ago. And the Mapplethorpe case arose just as these shifts were beginning.

Katie Wilson-Milne: Yeah. So can you talk about some of the issues in the 90s? What were important censorship debates in the 90s and to what extent were they legal, other than Giuliani?

Amy Adler: Yeah, yeah so it was really, I think positioned as a populist republican revulsion against the cultural elite, the art world imposing its offensive–

Katie Wilson-Milne: Sounds familiar.

Amy Adler: Yeah, exactly.

Steve Schindler: It does sort of resonate now. I mean, Pat Buchanan was running for president.

Amy Adler: Absolutely.

Steve Schindler: And railing against the, you know, this sort of Godless, you know pornography –soaked, abortion loving, you know, a world of the democrats.

Amy Adler: Yes and I think there was also in the background a lot of, I think a lot of focus on race, there was a lot of focus on AIDS because it was a time of gay activism, it was a time of leftist activism through art. So people were using art to protest what was seen as the government’s neglect to address AIDS, concerns about race and racism and art became this highly politicized realm, used by the left to make political points and targeted by the right as an example of elitist people being out of the mainstream dictating to the working man and using, and worst of all using government funds to stick their thumb in the, what’s the word. Stick a thumb in the eye of the, of you know, the working guy. So that’s–

Steve Schindler: Sounds so familiar.

Amy Adler: It really was and so many different artists were targeted during this time by congress or singled out as having crossed some line and being new poster children for how dreadful the cultural elite it was.

Katie Wilson-Milne: How does the hate speech movement map on to that because it does seem like that adds a different level of complication and concerns about what some people would call speech, certainly pure speech and then some forms of, you know, expression that could be called speech mostly from the left, right? Did that have artistic implications or do you think it could?

Amy Adler: Yeah, so there has been a growing concern. We certainly, it’s a very contemporary concern, that the First Amendment gives really robust protection to what we could call hate speech, meaning racist, vile, horrible speech and this is a surprising thing to a lot of people. Why we do that and it’s a place in which the U.S. is quite exceptional. Other countries don’t do that, the idea of arose under the First Amendment that because we have such solicitude for political speech, hate speech is in some ways a version of that. It’s a version of saying, you know, I like this racial group and I don’t like that racial group. How do we stop people from saying that and not get into the realm of, we’re suddenly saying, policing other aspects of the marketplace of ideas. Saying, you can’t say this political thing but you can say that political thing. The First Amendment should be hands off in expressing your viewpoint and so the Supreme Court has concluded say racist things within limits but most of the time all you want. And that is coming under fire from critics who think that the Supreme Court has underestimated the harms caused by racist hate speech, and I think we’re seeing it on college campuses now and in many art controversies now. Where people are saying, you know, wait a minute, there has to be some way to restrict this stuff. This can’t just be a free for all. And although, as I mentioned there are some First Amendment limits to this, they’re really only at the fringes of hate speech.

Katie Wilson-Milne: Do you think these concerns… Do they consider art in any special light or art is no longer special in the way that, you know, the law has made art somewhat exceptional in certain areas, the First Amendment and privacy law, you know those… These movement hate speech or, you know, let’s say the Catharine MacKinnon sort of view on pornography, which I think is very influential and important. Are they relatively unconcerned with art? Does art have any exceptional power?

Amy Adler: You know, that it’s funny different critics of existing First Amendment law take different views about art. Catharine MacKinnon for example, who is the leading critic of what’s considered the feminist, anti-pornography movement, where she viewed pornography as a root cause of women subjugation said that she was particularly dismayed by the Supreme Court’s obscenity jurisprudence where it made exceptions for works of artistic value because she said, sometimes art is the worst thing, you can — allowing something through art, protecting art that is in her view sexist, gives it a special blessing. Yeah, and so we should be less protective of anything of art or be more concerned about the harms of art. But what’s, what’s interesting to me in some of the current debates we’re seeing around hateful speech or speech that’s considered racist is how often art is being singled out as a target of people who are concerned about these issues, and I think there is an interesting subtext to me that art has a lot of power, a tremendous amount of symbolic power that makes people focus on it. So for example with the Dana Schutz’s controversy at the Whitney involving the painting of Emmett Till that was so offensive to so many people. I thought it was interesting that an artwork led to such extreme reaction and in some ways, to me it’s a testament of the power of the visual to communicate very broadly.

Katie Wilson-Milne: And one of the interesting about these works and the Dana Schutz example is that her intent was not important in the analysis of that work for many people. I think in other controversies, the intent of the artist or the artist’s own political views is important, and it says a lot about how people receive art, but in that example and some others, her intent which — she’s a far from conservative person and that’s been demonstrated over her career, her intent was not, it was not relevant. It was just how the work was received.

Amy Adler: It’s so interesting because that’s absolutely right and I think if anything she was probably, it seems like she was intending to make that painting out of empathy and empathy for Emmett Till’s mother.

Katie Wilson-Milne: I think she said that, as a mother.

Amy Adler: Yeah, as a mother, but increasingly there is this impatience with what did the artist mean and this focus on well, how does this, how does this work, how does this impact people? How does it feel to be on the receiving end of this work regardless of what someone meant, and I think that was very much the view of the critics of Dana Schutz who said, “This is not your topic. Hands off, you know, this is, you’re not to touch this one.” In some ways, that it was sacred, I think.

Steve Schindler: Right and there was also a lot of argument about that it was a commoditization of pain being inflicted on black bodies in particular and that that was improper.

Amy Adler: Yeah, Parker Bright, one of their protesters around that said, you know, “this is a Black Death spectacle,” and Hanna Black another person, the person who began the critic of the Whitney for showing this work and called for the destruction of the work said, you know, “you can’t use this topic” and her line was “for fun and profit.” And so it was seen as this irreverent plaything regardless of the fact that she had, as you had said, intended quite a different meaning to the work.

Katie Wilson-Milne: Right. And I guess to be fair, in that respect her identity was 100% the only issue because as a white woman that was white, it was not inappropriate for her in the eyes of these critics. While, the Whitney, the biennial, that biennial was very political and actually had a lot of art that was talking about injustice and racism.

Amy Adler: Yeah and even there was an interesting, there was a painting by Henry Taylor, who’s an African American artist in the same biennial, showing a very painful scene, recent scene of the shooting of Philando Castile and showing him bloodied in his car.

Katie Wilson-Milne: I found that very moving and disturbing.

Amy Adler: It was a very disturbing picture, but it was not the focus of complaints as was the Dana Schutz and I think it goes back to this idea that increasingly there is concerns about what people would call cultural appropriation. This is not your topic. You’re not allowed to do this as a person who doesn’t have a connection to this history of victimization. And you know, I think a lot of people have, probably particularly older people, have been concerned about this new way of thinking about art and politics.

Steve Schindler: Right, I do think there is a kind of an age gap there to some extent, you know I’m of the age, I remember very vividly the Nazi march in Skokie and the decision of the ACLU at the time to defend the Nazis which was very controversial and as was the decision of their local chapter to defend the marchers in Charlottesville recently and that, I think created a lot of controversy even within the organization today.

Amy Adler: Yeah.

Steve Schindler: Because there are so many different aspects of social justice that the ACLU is looking at and there is a tension often between what we view as sort of pure First Amendment rights and other aspects of social justice, and I think sometimes you see that younger people are on the other side of that divide.

Amy Adler: The assumption among a lot of younger people, and I think critics of traditional First Amendment values is that what you’re describing is really a tension between equality and freedom of expression and what’s funny is that for an older generation and I think I’ll probably put myself in that camp.

Katie Wilson-Milne: I was going to say, where are we drawing this line?

Steve Schindler: I know where I am in this room, so…

Amy Adler: No, that I grew up on this idea that freedom of expression was the only way to get to equality. That otherwise, the government would suddenly say, oh, yeah, we’ll give free speech to you, you know, powerful white guys and we’ll shut down the minorities we don’t like. And in some ways, that was what was happening in the culture wars when the government was, of the 90s, when the government was saying, we don’t like you AIDS activists, race activists, you know feminist activist speakers or you know what we perceive as blasphemous speakers. We’re going to try to shut you down and so we really — I came of age like out of law school at that moment where I thought that the government was trying to squash people who were advocating for equality and those people on the left using the banner of free speech to protect themselves. And the politics have really flipped in this generation in a very interesting way.

Katie Wilson-Milne: Or even before the 90s, right, I mean, directly preceded by the Cold War in which western countries with “free speech values” quote-unquote were watching and felt at great risk of countries who did not have any value on free speech at all. It was out in the open that you couldn’t say what you wanted, and so I think there were decades of people watching that and feeling like that wasn’t okay and then you know, I guess before that, you have civil rights activists and people who are really starting for the first time to protest, to use their physical bodies as speech in a way that really was profound in this country so…

Amy Adler: Yes, and I’m glad you brought that up because I’m, you know, just thinking about the art controversies but —

Katie Wilson-Milne: I wasn’t alive, just for our listeners.

Amy Adler: But yeah and I think it’s, you know, the other funny thing about the politics of the moment is that we’re living with a president who is, I think, you know not such a free speech kind of guy.

Steve Schindler: Only his speech.

Amy Adler: Yeah. Yeah, I mean, he’s…

Steve Schindler: Not everyone else’s.

Amy Adler: Yeah, he’s, I think you know, much more open to ideas of limiting speech and you know expressing admiration for countries that do limit speech and things like that. And so it’s interesting that at the same time, the left is having these doubts about whether free speech is the enemy of equality. We also see a government on the right that has some empathy towards free speech. So it’s, it’s now under fire from a lot of different sides in the political landscape.

Katie Wilson-Milne: And it’s interesting how art finds itself in the middle of these fights.

Steve Schindler: So another interesting sort of cultural or political and cultural event of these times is the tearing down of monuments and statues, particularly in the confederate south. And I mean, do you think that based on what you said before that the government is entitled to take down whatever monuments that are on its property without a violation of the First Amendment or is there some first amendment or censorship going on there, even if we all agree that it is a worthy thing to do?

Katie Wilson-Milne: Who are the interested parties in that?

Amy Adler: Yeah, so I think… I’m afraid to speak too globally because I think it would depend on the facts of particular monument and who owned it and so forth. But certainly if the monument is deemed to be the government’s own speech, then the government can take it down unquestionably under the government’s speech doctrine. There is no obligation for the government to say anything it doesn’t want to say, and it can always change its mind.

Katie Wilson-Milne: Would that include works that the government commissions or that is commissioned by someone else but then given to the government?

Amy Adler: Yes. Privately commissioned monuments that are then donated to the government become government speech. So there is a legal barrier to it but it’s, you know raises all kinds of ethical and moral and other kinds of political questions. And I also think it’s a testament to the power again of the visual and how it rallies us and captures our imagination.

Steve Schindler: Yeah, it is, I mean, it raises the hypothetical, for example, of this current administration deciding that it want to take down all statues of democratic or progressive political figures.

Katie Wilson-Milne: Which, by the way, no one has suggested is happening…just not to scare our audience.

Steve Schindler: But I suppose, you know, it could do so without implicating the First Amendment if they were statues or monuments that were government owned or government property and again that’s just a form of their own political speech that they are bound to.

Amy Adler: Yeah, whether this would have to be run through the democratic process is you know one question that might arise, but ultimately politics would be the backstop to that. Not the First Amendment.

Katie Wilson-Milne: You know in an interesting way, the First Amendment is what also protects us from that because it gives people the right to protest and be loud about how horrible it is and to bring, you know their political persuasion to bare.

Amy Adler: And I think there would be such an uproar that, that’s an example of how, even though the government might technically have the power to do it, that might be crossing a line, a political line.

Steve Schindler: So another controversy that I just thought we would throw out for you since we like to talk about controversial things with you, is decisions lately to cancel exhibits of particular artists who have been caught up in allegations of sexual misconduct. Chuck Close is one, Thomas Roma, I think was another, and one of them was the National Gallery, which I guess but also be viewed as a government institution. Any First Amendment issue there?

Amy Adler: You know that National Gallery technically said it was postponing the show. So I don’t think it’s a First Amendment violation, but I have qualms about that decision. I worry about getting into a microscopic examination of the moral character of an artist and trying to invest art with that and judge art based on how pure or impure the artist was. I mean, I, you know.

Katie Wilson-Milne: We’re going to lose a lot of art in art history!

Amy Adler: Right. I mean, you know we could think, you know Caravaggio was supposedly a murderer and you know I think…

Katie Wilson-Milne: Straight through Picasso.

Amy Adler: Yeah, right. You know and so I don’t personally like to think about art as too deeply entwined with the moral character of the artist. I like to make a separation. But that’s maybe an old fashioned point of view right now, where we’re really seeing that, you know, certainly not just in art but in other realms, like we are seeing, you know, other people who have been failed by the MeToo movement – Louis C.K., Kevin Spacey, you know, they are being actually, you know Kevin Spacey was actually erased from a movie. And I mean, I understand, you know, maybe it’s a business decision but I would tend to say, you know let’s punish or not punish a person for his misdeeds and treat the art separately. There may be exceptions to that in extreme cases that would perhaps make me reconsider. But these are not they.

Katie Wilson-Milne: And legally, I think there are maybe some confusion about the difference between censorship of art because of its content and because of the person who makes it. Is it the case that there is no first amendment protection, if you take down work because you don’t like something the author did even if it has nothing to do with the content of the work itself?

Amy Adler: Well there are no — I’m trying to think of a first, an actual case where the government has done this and I can’t think of one. Although –

Katie Wilson-Milne: This is a thought experiment.

Amy Adler: Yeah, a thought experiment — to the extent that you could say that the artwork was being targeted because it represented an idea or you know like oh anything that’s made by Chuck Close is sexist. That would certainly violate the First Amendment if the government were to say, we’re no longer, you know, showing your work, because the government isn’t allowed to choose on those regards or certainly send Chuck Close to jail for his artwork because it determined it was sexist. But it could, you know, Chuck Close is not an example of this because he had, I don’t think that anything he did would have crossed a legal line or crossed what from some people has been considered an ethical line. Bu you know, someone who is — actually commits sexual assault can certainly go to jail but I don’t think, you can then round up his, the government could not therefore round up his artwork in the way that the public’s sphere has suggested we remove it in a private way.

Steve Schindler: I think it’s interesting because just the destruction of art or the suggestion of the destruction of art is such a powerful thing and I don’t know where that comes from historically, but I think even in the Dana Schultz controversy that we were talking about, a lot of people were, you know, there were a lot of sort of interesting and provocative things being said about the piece and I think a lively discussion but then when the call was made to destroy the work, I think that people just started to focus on that and there was another example recently — Oh, well if you compare to even you know what happened at the Guggenheim recently and the animal rights protests, they decided to remove several works, which I think was maybe greeted with a little less apprehension.

Amy Adler: Yeah, I think, you know, how should we deal with controversial speech? Should we just destroy — this is a question for the monuments as well as for these examples of controversial art. Should we destroy it outright? Should we remove it from public view but preserve it? Should we keep it on view but have…

Katie Wilson-Milne: Contextualize.

Amy Adler: Yeah contextualize it, have labels? Should we commission counter-speech? This is a really interesting argument that I think I’d like to pursue in the realm of the monuments controversies where Brian Stevenson who is, this magnificent – I’m proud you know, to be associated with NYU Law School where he’s a law professor has just through his equal justice initiative opened the national monument to Lynching Memorial, and one thing that he has created through that is an opportunity for communities where lynchings have occurred to actually erect markers to those spots. And he has said, you know, “Our southern landscape is littered with monuments to the confederacy and to white supremacy. Where are the markers of the victims of lynching?” And I think this is, to me a very sort of beautiful approach and that it’s a very, it’s one that I recognize as having been infused with a First Amendment ethos which is…

Katie Wilson-Milne: Yeah, it feels very American.

Amy Adler: Yeah, very American like we’re going to counter your horrible offensive speech with more speech on our side and create this rich and robust marketplace of ideas where — And that’s the old fashioned First Amendment idea, more speech is the solution to society’s ills. And yet for a lot of people, you know, we talked about this with Dana Schultz, there is an impatience with that. No, take it down. It’s too painful to have it up. It’s too strong a message sent by the government and you know there maybe occasions where that’s also correct. So you know, there is a, I think we’re going to see a complex working out of multiple solutions to this problem of how we remember her own history.

Katie Wilson-Milne: So in the case of art museums though, for the Whitney and the Guggenheim who did take down work, or of Sam Durant who’s head of sculpture at the Walker Art Center, those are not legal issues, but they still feel like they have tremendous cultural significance which just goes to show that censorship can be a really powerful and real social force even if the law doesn’t get involved.

Amy Adler: Yeah and I think, you know one place that people can look to in trying to sort out what are not technically legal controversies is to the rich body of First Amendment jurisprudence and scholarship and thinking on these questions because it’s all of these policies have been exhaustively considered by lawyers and judges.

Katie Wilson-Milne: So as you’ve heard today, these are complicated issues. And art, as it always has, seems to carry the weight of so many social agendas and dissatisfactions. In that way it is ever polarizing, often the subject of attempted censure and ever so important.

Steve Schindler: And that’s it for today’s podcast. Please subscribe to us on iTunes or wherever you get your podcasts and send us feedback at podcast@schlaw.com. And if you like what you hear, give us a five star rating. And finally we want to thank our fabulous producer Jackie Santos for making us sound so good.

Katie Wilson-Milne: Until next time, I’m Katie Wilson-Milne.

Steve Schindler: And I’m Steve Schindler bringing you the Art Law Podcast. The podcast exploring the places where art intersects with and interferes with the law.

Katie Wilson-Milne: And vice versa.

Produced by Jackie Santos.