Steve and Katie welcome back Professor Amy Adler to discuss the First Amendment’s free speech protections as they apply to artistic expression in the context of several recent incidents. Specifically, they discuss the police seizure of certain Sally Mann photographs from the Modern Art Museum of Fort Worth in the context of obscenity and child pornography laws, the removal of the For Freedoms billboard depicting the march on Selma in Montgomery, Alabama, and the lawsuit about the Nirvana “Nevermind” album cover depicting a naked baby.
Resources:
https://its.law.nyu.edu/facultyprofiles/index.cfm?fuseaction=profile.overview&personid=19731
https://news.artnet.com/art-world/sally-mann-photos-seized-fort-worth-museum-2595888
https://www.thefire.org/news/fire-demands-fort-worth-police-return-artwork-confiscated-museum
https://www.bbc.com/news/entertainment-arts-59993244
https://www.nytimes.com/2025/02/18/arts/nea-artists-letter-trump-restrictions.html
Katie and Steve discuss topics based on news and magazine articles and court filings and not based on original research unless specifically noted.
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, a monthly podcast exploring the places where art intersects with and interferes with the law.
Katie Wilson-Milne: The Art Law Podcast is sponsored by the law firm of Schindler Cohen & Hochman LLP, a premier litigation and art law boutique in New York City. Hi, Steve.
Steve Schindler: Hi, Katie.
Katie Wilson-Milne: How are you?
Steve Schindler: I’m fine. Just coping, getting by.
Katie Wilson-Milne: Yes, trying not to have to process everything that’s happening.
Steve Schindler: Trying not to process everything, but processing enough to make it interesting. But I’m excited today.
Katie Wilson-Milne: Yeah, we’re talking about a completely uncontroversial-
Steve Schindler: Terribly uncontroversial-First Amendment, government censorship. But lucky for us, we’re bringing back to the podcast for return visit Amy Adler. Amy Adler is the Emily Kempen Professor of Law at NYU School of Law, and is one of the leading scholars of art law in the US. She teaches art law, First Amendment law, and feminist jurisprudence at NYU Law, and lectures about these topics to a wide range of audiences in both art and law. Professor Adler’s scholarship focuses on the persistent conflict between legal rules and cultural and artistic expression, addressing topics such as fair use, moral rights, online norms, authenticity, and the art market. Her recent, and I might add prolific, scholarship focuses on the role of copying and copyright law in contemporary culture, as well as the relationship between art and free speech. And it’s just a great pleasure to have Amy back. She was here in 2018, one of our first podcasts, and we’re all both older and more experienced.
Steve Schindler: Yes. But we’re delighted to welcome…
Katie Wilson-Milne: Older and better…
Steve Schindler: Welcome her back. Amy Adler, welcome back to the podcast.
Amy Adler: Thanks so much. It’s a pleasure to be with you two, and I’m a big fan of the pod.
Katie Wilson-Milne: So Steve was reminding me that there were many free speech questions and concerns, both legal but also cultural, when we talked to you last, and nothing has changed since then. We’re going to talk about…
Steve Schindler: So this is a short podcast, right?
Katie Wilson-Milne: Well, the issues we’re going to talk about today are slightly different, so our listeners should still listen. But it’s kind of incredible that these old-as-America questions about free expression and what the government can do on its own property with its own money, with other people’s property persist in controversial newsworthy ways.
Steve Schindler: Absolutely. So do you want to start out with Sally?
Amy Adler: Yeah.
Katie Wilson-Milne: So, Amy, I know you’ve been quoted in talking about the incident that happened at the Fort Worth Museum in Texas that was hosting an exhibition of Sally Mann photographs called Diaries of Home. And I don’t know if you want to describe her work and that exhibition just to set the scene before we talk about what happened there.
Amy Adler: Sure. I don’t know if I can do justice to her magnificent and varied body of work, but the pictures that were seized were, as I understand it, all from her book Immediate Family, in which she documented her own children in ways that are beautiful and were controversial really from the start. And I believe, as I understand it, five photographs have been seized. And I think most of them, but not one, involve nudity, which was a common feature of that series, because she was documenting how she was raising her children, which was in a kind of Edenic situation, very lush southern situation. And the children were often nude growing up. So that’s what this series emerges from.
Katie Wilson-Milne: And Sally Mann is a quite famous living American photographer, who, as you said, documented her own family, among other aspects of American life. But the controversy here is that this show contained many images of children in what some people said were sort of provocative, pornographic contexts. And other people, like Sally Mann and most people in the art world, would say were living their life and captured in the nude, because they were that way. And we should say, Amy, that, obviously, Sally Mann’s work has been exhibited all over the country. It’s not the first exhibition of her work.vIt’s not her first exposure, right? So there’s nothing new about this presentation.
Steve Schindler: And in fact, these photographs are old at this point.
Katie Wilson-Milne: Yeah, they’re old.
Amy Adler: I mean, and just to emphasize what you were saying, Katie, for those listeners who don’t know, and I think your listeners must know, she’s not just sort of an acclaimed artist. She is one of the most highly acclaimed photographers of our era. And these pictures, a lot of the images that we’re talking about from Immediate Family are her most cherished in terms of, certainly, the art market and in the museum world and the gallery world, and are owned by major museums.And they’re not, they’ve been exhibited sometimes, just to be clear and to double down on that.
Katie Wilson-Milne: Right, right. So these works are not a surprise to anyone who’s been paying attention. But yet they were clearly a surprise to some people in the Fort Worth area. So what happened here? The show goes up at the Fort Worth Museum. And this is recent. I mean, this is this year that this has happened, in 2025. So this is not a historical look back. This is a current situation. So Amy, what happened?
Amy Adler: The photos were seized and taken off the wall and have–are still under seizure. And there was a warrant, but the warrant hasn’t been made public. So we don’t know what the charges were that got them to take down the pictures. And we don’t know what’s going to happen next.
Katie Wilson-Milne: And this started, because a conservative local newspaper found out about the exhibition and was extremely offended by the contents, wrote about it, and then somehow local politicians—I think a local judge—became upset about these photographs. And then we get to the police coming into the museum and seizing these works off the wall. And as far as we understand, they’re still in police custody, even though the show has gone down, right? The show didn’t close early, it’s just concluded. And but these works are still being held by the police as if they’re criminals.
Steve Schindler: Right. And no one has been charged with a crime, have they?
Katie Wilson-Milne: No.
Amy Adler: No. And we don’t even know what the potential charges are. And I should add that, you know, if the police want to proceed with this, if prosecutors want to proceed with criminal charges or some kind of charges, the nature of the legal rubric under which they wish to proceed is going to be pivotal to the outcome of the case.
Katie Wilson-Milne: So, I mean, they’ve been criticized as being pornographic and being obscene. You know, the law on obscenity, which is a limitation to First Amendment rights in the United States, although it’s really not been that active of a strain of jurisprudence, as I think we’ve become more liberal in our acceptance of art and sexuality. Maybe that’s changing. But then there are also different laws about child pornography, Amy. So I’m wondering if we can talk about what the legal analysis would be under both of those regimes, because I’m assuming those would be the potential avenues for regulation.
Amy Adler: Yeah, exactly. I’m assuming the same thing. And most of the commentary I’ve read about these seems to assume that the charge will be obscenity. And if that were the case, then I think it’s a pretty easy case for Sally Mann, or the museum, or whoever is charged, to win. And the reason is that obscenity law famously makes an exception for works of the exact quote as “serious literary, artistic, political, or scientific value.” So if you can prove that regardless of how otherwise filthy, for what better term, a work is and how it might otherwise seem pornographic, and by the way, I’m not saying these pictures are, but if that were the allegation, then it doesn’t matter so long as you can also prove that the works possess serious artistic value. And I think, although in some cases that might be hard to prove, in the case of an artist like Sally Mann, who is so highly regarded, it would be an easy case for a defense lawyer to win under the rubric of obscenity law.
Steve Schindler: Right. That’s a jury trial normally, or is that a trial before a judge?
Amy Adler: Yeah. Yeah, it is a jury trial.
Steve Schindler: Right. So that’s always a little tricky. I mean, do you have a…
Amy Adler: Sure.
Katie Wilson-Milne: Yeah, but juries, we’ll talk about Mapplethorpe and Cincinnati as a great comparison to this in a moment. But jurors try to do their best. And even though they’re given these impossible standards to figure out what obscenity is, in the examples we’ve had, like the Mapplethorpe case, even a very local conservative, non-art world, fairly uneducated jury will find artistic value when they’re listening to experts saying there’s artistic value. So that would be very interesting if it went to a jury trial. But Amy, if it’s a child pornography issue, how does that differ?
Amy Adler: Yeah, so that’s what I worry about. And it seems to me that that might be the more logical course on which to proceed, because obscenity law is very hard to win under. And this case has such a strong—again, I’m talking about the case on behalf of the museum or Sally Mann or whoever may ultimately be charged. If it were an obscenity charge, I think it would be a very strong case for the defense. Child pornography, not so much. And that’s because child pornography law is strikingly different from obscenity law in a number of key ways. Most prominently for this case, there is no exception for works of serious value. Serious value is basically irrelevant to a determination of whether a work is child pornography. Another thing that may be surprising to people unfamiliar with this area of law is that although the works that we’re talking about are really nothing more than child nudes, and not all of them are, but some of them are child nudes. You might think, well, nudity is certainly not child pornography. It is actually the case that child pornography defines the prohibited material in such a capacious and expansive way that it could potentially, in my view, capture some of these images. I think, by the way, just to be clear, I think that would be a misuse of child pornography law, but I have been critical for some time of the expansion of child pornography law to apply to images that I think do not capture the terrible crime of child sexual abuse that it was designed to combat.
Steve Schindler: Right, and kind of interestingly in this case, and maybe it’s not relevant, but it seems like it should be, is that the children in this particular, or in these photographs, are now grown adults. I mean, we’re no longer in a world of protecting young children from some hypothetical wrong. I mean, these were photographs taken many years ago now, and the children are older. And so, I’m just wondering if child pornography law still sort of…
Katie Wilson-Milne: Like, who’s the victim? Does it require a victim?
Steve Schindler: Who is the victim? Or—yeah. Or, it does it?
Amy Adler: Yeah, but I think it’s an interesting point. And again, maybe a good reason for a prosecutor to think twice about bringing these charges, because I think if I were a defense lawyer, I would want to bring in the children who are around to say, you know, I was not victimized by this. Nonetheless, it’s really a strict liability kind of crime, if you think about it. I mean, a child can’t consent, and that’s one of the reasons child pornography law is so harsh. And I think in the black letter law, it simply doesn’t matter. It doesn’t matter whether the child views the previous work as traumatic. It’s not a relevant feature. But again, I would think in terms of a jury, it might be.
Steve Schindler: Right.
Katie Wilson-Milne: And there’s no out for the intent or the purpose of the work in the law. There are no defenses.
Amy Adler: Yeah. So I think we could drill down a little bit into the definition of child pornography in these kinds of cases, because I can think of ways I might try to introduce the artistic value of the work kind of surreptitiously. But just to be clear, I want to explain why the court has said there’s no exception for serious value and then maybe try to drill down on how I might try to get it in. The court has said the idea, the whole idea of prohibiting child pornography is that there was a harm done to the child in the production of the work. And I hear what you guys were saying about the children don’t think they were harmed. But that’s really irrelevant. It entails the abuse of a child in the production of material. And so as the court has said, it’s irrelevant to the child who’s been harmed how we view as an audience, what benefit we might view or gain from seeing the picture. I will say, however, and it’s worth noting, that the court has never actually heard a case in which serious artistic value was a direct defense. And the case was decided in the overbreadth context. So I do think as maybe, maybe, maybe, if it, you know, maybe the Supreme Court would make an exception for serious artistic value when it kind of–sorry if I’m getting too First Amendment law-y.
Katie Wilson-Milne: No, it’s good.
Steve Schindler: No, we love it.
Amy Adler: An as-applied challenge. But I think the big thing I would look at is trying to sort of introduce this kind of evidence in claiming that the material doesn’t meet the definition of child pornography, because there is no exception for serious artistic value in the conventional way.
Katie Wilson-Milne: And how would you do that? How would it not meet the definition?
Amy Adler: Yes. I might have to do a little bit of a tutorial on…
Katie Wilson-Milne: Thank you. Yes.
Amy Adler: On the definition of child pornography. So again, the whole idea is that there’s some kind of harm done to a child in the production of the material. And it prohibits any depiction of sexually explicit conduct depicting a child under 18. And defining sexually explicit conduct is hard on the fringes. It’s obvious if a child is being sexually abused and forced to engage in a violent sexual act, we can tell that’s sexually explicit conduct. But there’s also this catch-all category called pictures that are quote unquote “lascivious exhibition of the genitals or pubic area” are also considered to be sexually explicit conduct. And then figuring out what that means has been a big challenge for courts, because obviously lots of pictures of children in the nude or otherwise could potentially be mistaken under this category. And we want to make sure to separate out pictures of child sexual abuse from normal everyday pictures like pictures of kids in the bath.
And to do that, courts have followed this very old district court case from 1986 called United States v. Dost, which identifies six factors that courts should use to determine whether a picture of a child where there’s not any overt sexual conduct at all, should nonetheless be considered lascivious and therefore child pornography for purposes of the law. By the way, I want to pause here and just say the stakes could not be higher, because this is not a minor crime. This is like jail time—and years and years of jail time. So it’s crucial to figure out this to police this boundary between normal pictures of kids and pictures that are lascivious. And I think one problem is that when we get into this area governed by this test called the Dost test, it’s pretty murky.
Most but not all, but I would say the vast majority of lower courts, including state courts and most circuits follow this test called the Dost test to determine whether a picture is an innocent picture, or rather a picture that is child pornographic when there’s no overt sexual conduct in the picture. And it’s a six-factor test. Not all of the factors need to be met. The factors are not meant to be exhaustive. Some circuits have said just two factors is all that’s required for something to be child pornography.
And the six factors are—I’ll just read them to you—whether the focal point is on the child’s pubic area, whether the setting is sexually suggestive, i.e. in a place or pose generally associated with sexual activity, whether the child is in an unnatural pose or inappropriate attire, whether the child is clothed or nude, whether the depictions suggest sexual coyness or a willingness to engage in sexual activity, and the last factor, whether it is designed to elicit a sexual response in the viewer.
Katie Wilson-Milne: Well, that’s not clear at all, is it?
Amy Adler: No, it’s not clear. It’s a remarkably subjective set of factors, and if you look at some of the lower court cases and how they have applied them, you can see the extraordinary malleability built into the interpretation of these factors. So, for example, on the second factor, is the setting sexually suggestive? Prosecutors in a case in the First Circuit argued that a beach was a sexually suggestive setting because people take honeymoons on the beach, and that’s somehow associated with sex. So there’s just this kind of extraordinary unpredictability, I think, in how courts might view these questions. Focal point is another one. Where’s the focal point of a picture? But in any event, this problem and the problem of subjectivity is even more significant because most courts, although not all, have decided that these factors should be judged not from the perspective of a quote-unquote normal viewer, but from the perspective of a pedophile viewer.
Steve Schindler: Oh, wow.
Amy Adler: So in other words, suddenly, is the setting sexually suggestive? Well, a regular viewer might say, a non-pedophilic viewer might say no, but to a pedophile viewer, all kinds of settings…
Katie Wilson-Milne: Yeah. Literally seeing a child on the street, right?
Amy Adler: Yeah. I mean, there was a case in Third Circuit which talked about playgrounds as sexually suggestive, because pedophiles view them as such. So you can imagine the kind of dizzying subjectivity that we can get into here, and this is why I have been critical of the Dost test, and why I would worry if a prosecution proceeded under it, which is the legal rubric that it would do if there were a charge brought under child pornography law.
Katie Wilson-Milne: There’s never been a First Amendment challenge to these types of laws?
Amy Adler: Well, there’s always First Amendment challenges.
Katie Wilson-Milne: There’s never been a First Amendment limitation that sort of set a standard for these types of laws.
Amy Adler: I mean, all of these cases are First Amendment cases, but what there’s never been is a serious art defense. I mean, I think people have maybe raised it, but there’s no case—no reported case that I know of that involves any artist with any significant reputation, and this would be the first. Ah, I take that back. There were two pictures in the Mapplethorpe trial that were charged.
Katie Wilson-Milne: Yeah, there were children, yeah.
Amy Adler: And that was disposed of before trial on grounds that would not be relevant here.
Katie Wilson-Milne: And I believe their parents testified that it was with full consent.
Amy Adler: They did. That is not a defense.
Katie Wilson-Milne: Right.
Steve Schindler: Right.
Amy Adler: It was a defense under the Ohio law at issue in Mapplethorpe, but it’s not a defense under federal child pornography law, so that was significant in that case. The place I was saying, you know, when I was talking about whether artistic value might be relevant here, I might try to get that in under this sixth factor, which again is, is the picture designed to elicit a sexual response in the viewer? I think that might be where I try to say no, it’s designed to elicit an aesthetic response, an artistic response and really bring that in.I’m thinking, in particular, I was thinking about one of these pictures, which is a picture of her son called Popsicle Drips, which is, I don’t know if you know the picture, but it’s basically a midsection nude of her son, Emmett, with his popsicle drips in his groin area. And it’s cropped at the shoulders and cropped again at the knees. So it’s really just his torso. And I might worry about this picture, because is the focal point on the genitals?
Katie Wilson-Milne: Yeah.
Amy Adler: Kind of, yeah. But it’s also, I think, a clear artistic illusion. And it looks to me like an allusion to the famous Edward Weston photographs of his son, Neil, the Torso of Neil, that she seems to be clearly referencing. That was cropped just above, just a little bit higher up on the boy’s body. But it looks like that. It also looks like a Greek kouros, especially a broken one. So I think you can really see the artistic illusions in that picture in a way that might help with an argument that might be palatable to a jury that it was not designed to elicit a sexual response and that it was designed to elicit an aesthetic response.
Steve Schindler: Right.
Steve Schindler: I guess, but if you always come back to, if it’s always from the point of view of a pedophile and not from the objective kind of normal viewer, then it’s very difficult even to mount that kind of defense, right?
Katie Wilson-Milne: Then who cares what the jury’s instincts are?
Steve Schindler: I mean.
Amy Adler: Exactly right. Exactly right. And this is why I think it worries me. I would hope that a jury would see it the way I’m arguing, but I actually don’t know. I really don’t know.
Katie Wilson-Milne: And depending on how they’re instructed, I think, as you were saying.
Amy Adler: A lot’s going to matter there. Even though I’m talking about the ways these pictures are vulnerable, it seems to me they should not be. And to the extent they are, it’s a problem with the Dost test. And I will mention that some courts have criticized the Dost test for some of the reasons we’re describing. There was a very important decision in the DC Circuit rejecting Dost as deeply problematic under the First Amendment. So, you know, there’s not universal adherence to it. I’m a big critic. Last I checked, the Fifth Circuit does follow this, and that’s where a prosecution would unfold.
Katie Wilson-Milne: And the Dost test has never made it to the Supreme Court. The Supreme Court’s not set forth its own standards to be applied in this case.
Amy Adler: No, it hasn’t.
Katie Wilson-Milne: Although, since it gave us Miller and the less-than-clear obscenity standards to follow, you know, it might not be great. But maybe we should step back too, Amy. You know, what is the justification in the jurisprudence for accepting obscenity and pornography from our traditional First Amendment protections? Why are they not speech? Are they speech but like a special category that those normal tests don’t apply? What is the reasoning for that being treated so differently than every other type of private speech?
Amy Adler: Yeah, they’re both really weird under the First Amendment. There’s no analogy to them. And I think, especially when thinking about obscenity law, sex is just treated differently under the First Amendment in so many ways. I mean, if this were political speech where we go to the map for the most vile offensive speech imaginable when it comes to political speech, including hate speech, as I think we’ll talk about, but with sex, things are just different. So obscenity, which the definition of obscenity is whether material appeals to the prurient value, which is a weird word.
Steve Schindler: Right, you want to define prurient for me?
Amy Adler: Yeah, exactly.
Katie Wilson-Milne: And then define community standards in a clear way.
Amy Adler: Such a strange word, right? And so pivotal in the text. It’s Victorian even in its language. Yeah, and it first arises in 1957 in a case called Roth v. United States. And by the way, Katie, to go to your point, what’s the rationale? Why is it—how does the court treat it? The initial decision in Roth, which was Justice Brennan, a pretty speech-protective jurist, was that obscenity simply was And I think it was based on this idea that some stuff that triggers the body isn’t important enough to participate in the kind of hallowed marketplace of ideas. None of that’s explicit. I think it’s just assumed. Like this dirty base stuff can’t be valuable. But the definition is, whether to the average person applying contemporary community standards, the work as a whole appeals to the prurient interest, which means morbid or lascivious, whatever that means, is patently offensive according to contemporary community standards.
And again, as we talked about before, lacks serious literary, artistic, political, or scientific value. And this area of law has fallen into disuse for a number of reasons, one of which has to do actually with the rise of child pornography law as a growing problem, that it became a policy of the Clinton Justice Department not to pursue obscenity cases. And I think as things have unfolded, and as basically the world has changed so dramatically that the whole world looks obscene, perhaps, to somebody who landed here from 1957, when these cases were first decided, I think it’d be very, very hard for a prosecutor to win to show that anything exceeded contemporary community standards, because community standards are basically Pornhub now.
Amy Adler: So it’d be hard to win a case. But yes, the idea was that it’s simply not speech. With child pornography, the justification for excluding it is dramatically different. This body of law begins in 1982 with a case called New York v. Ferber. It was really just the time when people were beginning to discover that there, it may be surprising to know this, that there was this horrific crime of child pornography that people had been aware of. As they had been aware of child sexual abuse more generally, and the court basically crafted a new category of utterances that were not considered speech for purposes of the First Amendment. But the justification there was not that the work lacked value, which was really the argument under obscenity law, but rather that regardless of value, the production of this material entailed the commission of some kind of abuse of a child. And that’s also an extremely anomalous rationale for prohibiting speech under the First Amendment.If you think, for example, of if I were to take a picture or a professional photographer were to capture a picture of a crime in action, to take a picture, for example, of a bank robbery, that picture might be enough to win the photographer a Pulitzer Prize. We wouldn’t treat the picture as if it were somehow bound up with the actual crime that it documents. But with child pornography law, we view the image as kind of tainted with the crime and almost carrying it forward in a way that completely…
Katie Wilson-Milne: Maybe a better analogy, Amy, would be like if the bank robber took photos of the bank robbery, they would still go to jail for the bank robbery, but it wouldn’t be part of the case that they took photographs of it.
Amy Adler: I think that’s a really good point.I think the question that might characterize some of these cases would be what if the bank robber committed the crime in order to get the photos? Yeah. And so that makes this really complicated. But in any event, it’s just strange. It’s just a strange move in First Amendment law, but the court was looking for a way to stamp out this terrible category of material.
Katie Wilson-Milne: And in both cases, though, it’s not that it’s an exception, it’s that it’s non-speech. I mean, that’s what’s so, I think, doctrinally interesting is like, what is the justification? And you can see the jurisprudence might go in different ways based on whether we’ve decided it’s not speech, there’s no First Amendment here at all, or it’s an exception, it’s speech, but we treat this kind of speech differently, and here’s the justification for that.
Amy Adler: Yeah, I think I might say with, I think that’s a perfect way to describe obscenity law where there really was just, it’s not speech at all. I think with child pornography, it’s more just like another categorical exception to the First Amendment. I would analogize it more to maybe how we think about libel or incitement to imminent lawless action, and it’s speech, but we’re going to carve out an entire category that we just say this whole category is not protected.
Katie Wilson-Milne: Because it’s so damaging, and there’s some underlying misconduct involved. Yeah.
Steve Schindler: The so-called the perceived demand for child pornography is really the sort of what causes the production, right? So that as long as the actual product of it is available, it creates the problem of production of it, that to meet that demand. And I think it’s not dissimilar to obscenity or pornography, but it involves children. And I think that’s just seems to be the tipping point.
Katie Wilson-Milne: Yeah. Yeah.
Steve Schindler: Because you can say the same thing about not all pornography is obscene, but if it were, it is also contributing to the sort of whole production realm of that work, but you’re talking about adults as opposed to children who can’t really consent.
Katie Wilson-Milne: Yeah, but Steve’s right. I mean, going back to the arguments against adult pornography that Catherine MacKinnon and Andrea Dworkin made in the 80s and the 90s, the underlying rationale was the same, right? That there’s a crime being committed against the women being portrayed in the pornography and also what this tells society about how they should treat women. But there was, I think this concept, I don’t know if Amy, you agree with this, that the making of the pornography with the women was wrong, right? There was something bad happening there. And so the product of it was bad.
Amy Adler: Unquestionably. And I, you know, Catherine MacKinnon is the leading figure, as you were mentioning, the leading figure in the anti-pornography feminist movement of the 80s and 90s was a big fan of child pornography law, because she really saw this parallel that women were were harmed in the production of pornography. A difference here is that she was arguing that we should ban pornography for a second reason, which was really it was a social construction argument, that it changed everything, that it was responsible for sexism, that it changed the way we think about women, that it sexualized women as a class, and was responsible for inequality. But with child pornography, the court has been very careful not to follow that same line of argument, because to do so would violate basic First Amendment precepts. So they have said, we’re not banning this because of how it makes people think about children or because it sexualizes children. We’re banning it, because of the harm done to children in the production. Although that may not make sense to a non-lawyer, why would they not want to go for the second argument as well? Of course, it’s horrific to make us start thinking about children in a sexual way. But they didn’t take that avenue as a rationale for banning it, because to do so would violate a lot of basic First Amendment principles about how we don’t ban speech for the way it makes us think.
Katie Wilson-Milne: This is a new case, the Sally Mann case, but it is incredibly reminiscent of some of the controversies in the late 80s and the 90s about National Endowment for the Art funding. Maybe we’ll have a second podcast about the NEA funding changing at some point in the future. But particularly the Robert Mapplethorpe exhibit, which toured to a number of museums in the country, I believe in the late 80s and ended up in Cincinnati. And maybe, Amy, you can describe this more, but just to say that what happened in Cincinnati was not indicative of what had happened in the other venues. There was something specific about the culture and the society in Cincinnati that did not react well to the extremely explicit and controversial images in Robert Mapplethorpe’s photographs, which have been described as homoerotic certainly, but sadomasochistic and are very explicit images of often men, sometimes young men, black men, in very sexual positions, but also with a tinge of violence and a very risque portrayal. And that was met with…
Steve Schindler: A small number of the works, right?
Katie Wilson-Milne: Yeah.
Steve Schindler: Relatively speaking.
Katie Wilson-Milne: There were five works at issue in the case that criminal charges were brought to address, but Robert Mapplethorpe himself is a controversial…
Steve Schindler: Right, but even in that exhibit, there were a lot of images. A lot of images that were not.
Katie Wilson-Milne: Absolutely right.
Amy Adler: Exactly. I mean, one interesting thing I think about that case is that it was coming at a point of cultural turmoil that in some ways seems recognizable right now about sort of this division being posited between cultural elites, you know, maybe we would say coastal elites now, and, you know, mainstream Americans. And the art world had come to signify the perverted cultural elite. And Mapplethorpe seemed like the poster child for this. And before the show even got to Cincinnati, Congress had seized hold of Mapplethorpe and figured out that the show at its origin had gotten some NEA funding. And there was just absolute horror, I think, on the part of many conservative people in Congress about about Mapplethorpe.And it was the height of the AIDS crisis. And Mapplethorpe, by the time the show got to Cincinnati, had died of AIDS. And as you were saying, Katie, again, and you, Steve, important to point out, it was a very varied show, but some of the works were hardcore S&M, you know, gay S&M, and AIDS-phobia, homophobia were at their height. And I think on top of it, you know, the fact that this was being inserted into an art museum was viewed as a total slap in the face. How could you, how could you do this?
These hated things and these feared things. So with that as background, the show arrives in Cincinnati and prosecutors bring charges against five of what were called the X portfolio, which are the S&M works, and two of the child pictures actually, that those charges were ultimately dismissed. And remarkably, Mapplethorpe wins, as you were saying earlier in the podcast. And he wins because a jury believes critics who come in and say, this has serious artistic value.
Katie Wilson-Milne: Yeah. And I think it’s an incredible part of that story, this disturbing story where we should say the museum was, and its director were the criminal defendants, right? So real world consequences. And this jury is made up of regular people, right? It’s like they are not art world people, they are not wealthy, they’re part of a community that’s very disturbed by these images. And I think there was interviews with them done after that showed they were very disturbed by the images and in the first two prongs of Miller did find them to be contrary to community standards, did find them to be in the prurient interest. But they took the artistic value prong or exception, whatever, of Miller very seriously and could not find that these works had no artistic value. But the regular people, right, they were on the other side of the culture war, and yet they found that these works were okay, right, and that these criminal charges had to be dropped.
The other thing that’s so interesting about the transcripts from that trial is that, it is, as you said, one of the first real art world culture divides. So you have, and in many of these cases, probably, you have experts for the defendants who were coastal elites, or art historians, or professors, or critics, saying they’re not commenting on the sexual nature of the photograph at all. It’s as if they don’t see the content of the photograph, right? Their entire testimony is about the lighting, and the figuration, and the classic technique, and they don’t mention the content at all. And then you have the testimony for the prosecution, which doesn’t talk about the technique or the artistic placement at all. They talk about the content, and it’s almost like they’re talking about completely different things. And it just, to me, epitomizes that difference in perception of the show, too, that people are seeing totally different things when they look at this work.
Amy Adler: So well put. And what’s so interesting is, in many ways, I think it encapsulates what Mapplethorpe was doing with this work. Because the contrast between the sort of formal, really old-fashioned formal beauty of his images and the hardcore sexual content was, I think, exactly what he was going for. You know, he said, I can make pornography art. And so these are very classical pictures. They’re so, you know, they look arty, for want of a better term. You know, they’re so well done. They’re black and white. They’re restrained. They’re symmetrical and all of that.
And yet at the same time, the content was shocking for 1990 and is, you know, I think even pretty surprising for us in our jaundiced, porn-soaked culture now. And I think that contrast is built into the work, what makes the work interesting and encapsulates in many ways the two sides, the two views of the work that you were just describing, the prosecution and the defense.
Katie Wilson-Milne: Yeah, and it’s almost like they’re both correct. You know, it’s just that they’re looking at something, they’re operating in a world with very fuzzy legal guidance about how to value art, what is expression worth protecting. And so you have these two, like, perceptions of a work, which are perhaps correct, but no sort of system, clear system in which to understand how to value one over the other or how they intertwine. And, you know, I think if we see the Sally Mann stuff get litigated, I think we’ll see that same cultural divide in the testimony and how these works are described in different media outlets.
We’ll see some people describe them based on the content of the, how the children look in the photo, and some people will describe the lighting and the placement and Sally Mann’s contributions to art history. And, you know, we’ll see those different narratives in parallel again.
Steve Schindler: Right.
Amy Adler: I think for some people, if they see it as child sexual abuse, again, I don’t see it that way, but if they do, talking about its artistic value is almost a slap in the face, right?
Katie Wilson-Milne: Right. And we’ve seen that in other contexts, too. This is not a podcast, we decided, about sort of free speech culture in the art world, but we certainly have seen these controversies around depictions of race and other identity about, you know, people see the work based on its content and how it offends them versus its work as a piece of art. And so there’s a lot of conversations about this and many different types of art. Right. I think one difference, and I don’t know, I mean, if I was a juror, in the Cincinnati case, you had a situation where, you know, kind of upstanding members of the community were being prosecuted and potentially sent to prison, right? The director, yeah.
Steve Schindler: The director who went on to found the Rock and Roll Hall of Fame.But, you know, a well-regarded person, as opposed to, we want to take these images down, we want to close it down.And I think, to me, it’s just, I don’t know, there’s a little bit of a line there that, are you really going to send these people to prison for exhibiting works that you find offensive?
Katie Wilson-Milne: Right. Right, right.
Steve Schindler: As a juror…
Katie Wilson-Milne: Or is it just about taking it out of the exhibit?
Steve Schindler: Yeah, right. And it wasn’t about that. It was sending these people to prison, and that was really… Well, as Amy said, we’ll see what happens.
Amy Adler: We’ll see what happens. But I mean, prison for a long time, and I think this is why…
Katie Wilson-Milne: Could be worse, actually, because it’s child pornography.
Steve Schindler: Oh, yeah.
Amy Adler: Yeah, no. I mean, exactly. And this is the one thing that gives me hope, maybe, that they won’t bring charges, is because I think they should keep in their calculations the fact that George might be unwilling to do that with our pictures.
Katie Wilson-Milne: Yeah. And it’s not like this is some unknown institution. This is the major art museum in their community. No matter whether they agree with the art or not, people are going to value it.Amy, can I ask you your thoughts on the Nirvana “Nevermind” case about the baby on the cover of the album?
Amy Adler: It’s preposterous. It is preposterous. It’s still going on and…
Can you describe the case briefly?
Katie Wilson-Milne: So preposterous isn’t enough of a background for people.
Amy Adler: I think that says it all. It’s the cover of, I guess, “Smells Like Teen Spirit.”
Katie Wilson-Milne: Yes, classic album.
Amy Adler: Which is, you know, a great album. And it’s this picture of an infant or maybe not an infant, but a little baby, a nude baby swimming through a pool. And I think there’s some dollar bills on a fishhook kind of dangling ahead of the baby in the pool. So the baby is now all grown up and under a provision that allows for some private right under child pornography law for former victims that I’m not sure I fully remember. But it extends the statute of limitations, basically. Yes. Well, they extended the statute of limitations because the album was reissued, unfortunately.
Katie Wilson-Milne: Right.
Amy Adler: Yeah. But the grown up baby is now suing, saying he was a victim of child pornography. And honestly, I mean, this is one reason I’ve been a critic of child pornography law, is that I think if you’re going to start scouring pictures of children’s genitals from the perspective of a pedophile and begin to see a baby swimming in a pool as pornographic, it’s so perverse, right? There’s a kind of, and it’s such a way of really diluting a category that is designed to protect against the most horrific kinds of abuse imaginable.I just don’t buy it. I don’t buy that that’s, I can’t believe a jury would find this child pornography. It’s just, it’s preposterous.
Katie Wilson-Milne: And this is a case in California?
Amy Adler: I can’t believe it’s still going on.
Katie Wilson-Milne: No, it was dismissed and then replead. Yeah. But in the argument by the plaintiff, the then-baby, now grown up man, is that it was non-consensual by his parents or that he was a baby and he couldn’t consent. So any picture of a baby, that baby can later bring an action like this. Is there an allegation of actual harm? I know he says, I currently have emotional harm by this image being out here.
Amy Adler: I don’t know, because it’s an extension. I don’t remember, I’m sorry to say, I don’t remember how child pornography law extends to allow victims to sue. But in a way, it’s like an insult to real victims.
Katie Wilson-Milne: I think we should move on to talk about controversial billboards quickly.
Steve Schindler: Sure.
Katie Wilson-Milne: And we should say this is related, but actually quite a different, I think, First Amendment problem, more akin to government speech and government funding cases, which just add total confusion to this, have their own line of jurisprudence and own rules and various different rubrics, and which we’ll not get into in some detail.
Steve Schindler: Right, I thought the government doesn’t have speech.
Katie Wilson-Milne: Right, right. Well, it also recently has been a controversy about a billboard in Montgomery, Alabama, that was put up in partnership with the artist collective called For Freedoms, which was co-founded by Hank Willis Thomas, which many of our listeners will know. They have a billboard project all over the country where they partner with artists to put up politically and culturally provocative and interesting artwork on billboards. As messaging, obviously, is expression, and one of those billboards was put up in Montgomery, Alabama under somewhat confusing circumstances. And Amy, maybe you have some clarity on this. I thought that it had been in partnership with the Civil Rights Museum in Montgomery, that they were a partner in putting this up, but it seems like perhaps the board of the museum was not informed of it going up. And so it’s a little unclear, but somehow the city and a local institution were involved in it getting up. And the subject matter of the billboard is a very famous photograph of Bloody Sunday, the protest in Selma, Alabama in the 60s that was taken by Spider Martin. And that photograph, I believe, is going to be or is in an exhibition about civil rights at the museum right now. And then on top of that blown up photograph on the billboard is Make America Great Again, obviously President Trump’s campaign slogan. So Amy, do you want to talk about why this was controversial and what happened? I mean, so far, this sounds pretty boring, if not a very nice work of art that’s provocative and timely.
Amy Adler: You know, it’s worth emphasizing, which I think you did, that I think the intent of these works is explicitly anti-racist, superimposing the Trump slogan against this pivotal image of the civil rights movement and the march on Selma. And John Lewis is there. It’s the moment right before Alabama state troopers began to beat the protesters who were going to march to Montgomery. So it’s just this amazing image. And it was taken down, I think, again, there were some community, as often as the case in these things, some community rabble rousing that went on, but ultimately, it was taken down upon the request of the mayor, who is a Democratic mayor, Stephen Reed, a black mayor. I think he’s the first black mayor of Montgomery. And he issued a statement saying that “it’s a pivotal movement in our nation’s fight for equality and justice, and we must be extremely mindful of how we use such images of our shared history.” So especially when they risk being perceived as politically charged. So this is, you know, an example of the government just taking down a work.
Katie Wilson-Milne: Yeah. And I wonder if, I mean, this, I think, isn’t the interesting part of the conversation, if it was technically a request, and then it was voluntarily taken down with some sort of pressure, but not that the mayor ordered city workers to go rip it down. I don’t know, but that may be a distinction to any legal claim that’s relevant. But let’s just say the government took it down. This is a very different type of case, right? I mean, this is clearly political expression, which is the most protected form of expression. It’s also art, but it’s art that has a clear political message, which is the strongest case for art being protected as analysis. And, you know, it was done lawfully. So, what is the sort of government justification for removing something like this?
I mean, the mayor clearly gave this sort of social cultural explanation, but what is the legal justification for removing this?
Amy Adler: Well, you know, I think it would proceed under a doctrine called the government speech doctrine, which is when the government’s speaking on its own behalf, it can say or not say whatever it wants. And so I guess we don’t know, we don’t know the context here, but if the government owned the speech or commissioned the speech, I think they would probably win a case if Hank Willis Thomas were to sue under the government speech doctrine. To me, what’s really interesting, and especially in light of our previous conversation, is the interpretive problems that this case highlights. Just as we were talking before about how complex it is to interpret whether a work is actual child sexual abuse or just a penetrating picture of a child in a way that’s artistic and deep, thinking about what this work means, I think, is part of the point of the work, but also explains the dispute. For the creators of the billboard, obviously, it’s a way of making people think deeply about race and this history of race against this backdrop for Donald Trump, but I’m gathering that for the mayor, it’s somehow being perceived as harmful, not helpful to questions around the history of civil rights.
Katie Wilson-Milne: Or maybe some aspect of, again, a community elitist divide, that this is our history, and you’re using this history to make your own political point, but I want control over my history.
Steve Schindler: There was something sacred about that history that you’re now defiling by associating it somehow with Make America Great Again, which is apparently opposite to that history. But I think the point that Hank Willis Thomas and the collaborators on this project were making was that, this is an illustration of a great thing about America.
That it’s not like this. That’s right. Exactly. And so, you know, we can all sort of have that conversation, but it is, you know, really highly unusual, it seems, assuming that they did take it down on their own. That the mayor just said, I don’t like that speech, take it down. I mean, even Rudy Giuliani didn’t do that. Yeah, I mean, I think what’s begs some factual clarification in this case is who put this billboard up and whose property it was.
Katie Wilson-Milne: I mean, some billboards are private property, so the government would absolutely have no say in taking a billboard down. But there was commentary in the news about this that it was a government commission, and I don’t know if that was because of the partnership with the Montgomery Museum of Fine Art, that they had been an initial collaborator, and then their leadership disclaimed any association with the work. But there is some notion in the press that this is a government either sponsored project or commissioned project, and I don’t know the details of that. And that would bring it into government speech, this idea that in a long line of cases which are not entirely consistent, that the government has a right to decorate its own property as it wants, that if it’s sending out information or commissioning work, it can decide what to do unless it’s doing so in such a way as to so obviously invite or exclude only one point of view.
Amy Adler: Yeah, and just to chime in there for even though it was before the court had really fully developed its government speech doctrine, I think one great precedent for this and thinking about it would be the Serra case and the Tilted Arc case from way back when where it was a government commissioned work that the government then destroyed and that decision was upheld.
Katie Wilson-Milne: I guess what I’m wondering here is this work was already, I mean, like the Serra case, this work was already up. And, you know, I guess it’s just a real question whether the city of Montgomery owned this work and there was a contract that said they owned the work. I mean, in the Serra case, it was very clear, right, that federal government owned this artwork.It was in writing.
It was unambiguous. There were no property rights or any other types of rights retained by Richard Serra. You know, here, I don’t know what the case is. But if it’s not the case that the government explicitly owns this whole billboard and it was a commission and there’s a document that says there are no property rights retained by any of the artists, it’s a different analysis under the First Amendment, right? I mean, the work is up. There’s a difference between not allowing a work to go up because you’re deciding how to decorate your courthouse or, you know, whatever, then inviting a work to go up, letting it go up, maybe like many other billboards, and then based purely on its political message, taking it down. I mean, or is that different, Amy? It just seems to me like that’s different. You know, the key question in these cases is whether you can claim it’s the government’s own speech.
Amy Adler: If the government’s taking down someone else’s speech, because they don’t like their viewpoint, the government’s going to lose. If the government’s taking down its own speech, for whatever reason, it can do so. That would be the big switch that I would want to see and we just, I don’t think, know enough facts yet about what that would be. As a matter of policy, I’m really struck, Steve, because you used the word sacred about this image. And I happened to teach this case for this unfolding controversy yesterday. And I really came away thinking about this as a sacred image. And the mayor’s comments about it, the Southern Poverty Law Center also weighed in. A sacred image where, in a way, Hank Willis Thomas is using it to make what I think is clearly an anti-racist point or clearly intended to be an anti-racist point. But there seems to be this argument that we all own this image. You can’t almost privatize it. It reminds me of thinking about cultural property or even moral rights, some notion that some images are just too sacred to let individuals use them other than the way they were meant to be used.
Steve Schindler: Right. We haven’t adopted that sort of legal doctrine yet. I mean, here. I mean, I don’t know yet. I mean, Italy has, you know, we have, there are other places where they do accept that argument. But so far, there hasn’t been a case here that has sort of blessed the idea that just because an image is historically important or sacred that it can’t be used.
Katie Wilson-Milne: No, I don’t think that would be permissible in any court.
Amy Adler: But no, it’s not, but it seems to me what’s motivating going on here.And I guess the other thing I just wanted to think about was the real disconnect here between the intent of the artists to make an anti-racist statement and the way it’s being understood. I think it’s being understood ultimately as potentially pro-MAGA. Yeah. Which is…and the mayor’s reacting to that saying, I don’t want this image misinterpreted, right?
Steve Schindler: That kind of gives rise…I mean, that’s…It’s reflective of this sort of this larger problem of, you know, to… I mean, do we want the government policing speech, even where that speech is well-intended and ambiguous? Because people can view this image and reflect on it and make up their own mind, but here you have potentially a mayor saying, no, I’m not going to give people enough credit to do that. It could be too easily confused, and so let’s take it down. And that seems to me a sort of dangerous thing to do.
Katie Wilson-Milne: Right. Even if it’s, let’s say, it’s government speech and they’re allowed to do it, it ethically is the same issue as a court or a jury saying, this has no artistic value or it does, right? Like, so much ambiguity about art, not just the intention of the artist, which may be irrelevant, right? Because it’s about how lots of different people are seeing the same work of art and they’re going to see it differently. And then we ask our courts or our government does this proactively to make a decision about what is art or what this is saying or what it means. And it’s not well-suited, right? I mean, art historians and critics disagree about it, but how on earth can courts and lawmakers…
Steve Schindler: Right. And we know that the Supreme Court has most recently, and in a case that Amy is well, well, well familiar with, the Warhol case has made it a point to say that judges are not really that well qualified to comment on the sort of meaning of art.
Katie Wilson-Milne: Yes.
Amy Adler: Yes.
Katie Wilson-Milne: And perhaps correct.
Amy Adler: I might also mention the Matal v. Tam case, which is another really interesting Supreme Court case here involving the band, The Slants, that wanted to trademark their name, The Slants. And the trademark office prohibited them from doing so under the disparagement clause, which was the idea that you can’t register a trademark that’s disparaging to a group. And in this case against Americans and the group, the leader of the group, said we’re, we are Asian Americans, we’re using the term to kind of subvert the racist uses of it and to try to adopt it and flip that. And the court ultimately struck down the disparagement clause saying the government can’t prohibit people from using disparaging remarks and expressing viewpoints racist or anti-racist. But I also want to add that I think that maybe we should think about a disconnect between what the government can and can’t do in these cases and what we might want to see as a matter, art discourse and our art environment and civil discourse in terms of, you know, and that’s interesting.
Katie Wilson-Milne: I think it’s technically unrelated, but all of the talk, this whole conversation about what’s happening in Montgomery very much reminded me of the Dana Schutz controversy at the Whitney, which, you know, is certainly not, had nothing to do with government action or, you know, any government involvement at all, but this idea of a sacred image, right? This, that we, only some people can treat certain images a certain way because they are so precious and they’re so emotional and so vivid. And I think that’s a, that’s an American truth, just like it is that the government shouldn’t be interpreting what art is and it shouldn’t be telling people where they can show their art. It’s also true that culturally we do have an idea of sacred imagery and who gets to use what and the cultural sensitivity matters.
Amy Adler: It’s funny. This is exactly, I taught this with the Dana Schutz yesterday, I’m using this word sacred. So it’s just, we’re really on the same wavelength here. And I think that’s to me exactly how to think about this. One difference that struck me is that there the identity of the artist was pivotal, I think, in determining the use of the image.And here, the identity of the artist doesn’t seem to matter to those who want it taken down. And perhaps one thing that the possibilities of misinterpretation of this image, the way that it’s a billboard not used in an art space, maybe exacerbates the potential for harm. I was very surprised yesterday when I taught the case. I asked my students, I’ve been asking them this every time I teach this billboard for years, if they knew the underlying image. These are very smart, well-educated kids, and I shouldn’t call them kids, they’re in their 20s. They know everything, but we live in such a fragmented image world. And these pictures are, I believe, 60 years old, 1965, 60 years old. Most of them had never seen these pictures. You know, they know about the March on Selma, but they don’t know the images. And so I thought, wow, how much is this billboard’s political message even going to land to people, you know, seeing it outside in our context? They don’t know what the words are being superimposed against.
Katie Wilson-Milne: Yeah. Well, anyway, these issues are live and well, so.
Steve Schindler: Yeah. I think we’ll have to have you back, Amy. I think—I don’t think we’re finished, but I think we’re finished for today.
Amy Adler: Yeah.
Katie Wilson-Milne: It just means, Amy, that none of your scholarship is dated, and I hope you appreciate that, that it’s all ever-relevant.
Amy Adler: I haven’t been working on the First Amendment in years, but unfortunately, I’ve been writing about other areas of art law for the last decade at least. But unfortunately, this stuff keeps coming back.
Steve Schindler: Right. Well, thank you, Amy. Thank you for joining us. It was great.
Amy Adler: Thanks so much, you guys.
Steve Schindler: And that’s it for today’s podcast. Please subscribe to us 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. We are also featuring the original music of Chris Thompson. 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, a podcast exploring the places where art intersects with and interferes with the law.
Katie Wilson-Milne: The information provided in this podcast is not intended to be a source of legal advice. You should not consider the information provided to be an invitation for an attorney-client relationship, should not rely on the information as legal advice for any purpose, and should always seek the legal advice of competent counsel in the relevant jurisdiction.
Music by Chris Thompson. Produced by Jackie Santos.