Thirty years ago, art was put on trial in two well-known cases. The Mapplethorpe obscenity trial is still known today as the first time in the USA a museum was taken to court on criminal charges related to works on display. In Germany, the Constitutional Court ruled on pornographic literature and the freedom of art from state censorship.

The Perfect Moment

At issue in the US was The Perfect Moment, a retrospective exhibition of photographer Robert Mapplethorpe which in the spring of 1990 was hosted in the Contemporary Arts Center (CAC) in Cincinnati, Ohio. Mapplethorpe rose to prominence in the preceding two decades for his expressive black and white photography and especially his frank depiction of the male body and fetish practices. Mapplethorpe’s tight orchestration of his photographs – arrangement, lighting, composition – lends a perpetual chilling effect to a full spectrum of erotic subjects.

To quote one of the artist’s closest friends, the famous rock star Patti Smith: “Robert sought to elevate aspects of male experience, to imbue homosexuality with mysticism “.

And in that, he did succeed. Mapplethorpe borrowed extensively from Christian religious art, synthesizing his religious upbringing, the atmosphere of hedonistic 70s New York and the gay scene in particular. His work reveals a committed exploration and dark subversion of Catholic themes familiar throughout art history: transgression, punishment and confession, agony and ecstasy, but also redemption, grace and eternal beauty.

Obscenities

The 1990 show’s approximately 175 images captured the range of Mapplethorpe’s subjects, grouping them into three “portfolios:” nude portraits of African-American men (the “Z” portfolio), flower still lifes (“Y”) and homosexual S&M (“X”).

The exhibit was controversial from the start especially because of the graphic nature of “X” and was well covered in the Cincinnati press. On the day of opening, 8.000 visitors came to see the pictures, more than double the expected number. But there was a great deal of negative public reaction, and rumors spread that the city of Cincinnati would attempt to close down the exhibit under Ohio’s obscenity statute, which makes it illegal for any person to “Promote,… display … or exhibit … any obscene material.”

In the early April, the Hamilton County Grand Jury did indeect indict the gallerist for criminal violations of the Ohio obscenity statute.

“Just 13 pictures for which you should go to jail”

As mentioned, the whole matter was subject of extensive press coverage. One of the show’s most prominent critics, National Review editor William F. Buckley, made a point of stopping by the show later in its run to see the photos for himself.

“Are we taking the position that any creation executed by an artist is ‘art’—and that it should be immune from criticism?” he asked readers. “Let us suppose that an artist painted a synagogue in the shape of a swastika. Would we be obliged to withhold criticism of the painting, in deference to the liberties of the artist?”

When he was asked of his opinion after his visit, Buckley answered ‘Wonderful exhibition, wonderful. There are only 13 images for which you should go to jail.’”

Of the approximately 175 pictures in the exhibit, seven were particularly controversial and were the focus of the ensuing trial. Two pictures were of naked minors, with a “lewd exhibition or graphic focus on the genitals.” The other five were of adult men in unusual sadomasochistic poses.

How far is art allowed to go?

It became clear quite quickly, that the case had more far reaching implications than a prison sentence up to two years and a fine of 2.000 USD for one man. The art community in the USA had understood very quickly, that if the gallerist went to jail, countless artists and museums would have to self-censor to evade obscenity charges.

People even took to the streets. In one well-known picture, protestors expressed support for The Perfect Moment, with a tongue in cheek: “If you give artists freedom of expression, soon every American will want it”. Clearly, public opinion was agitated. On a T-Shirt held up on the left side you can see another slogan expressive of the state of mind of the protestors: “Art censorship is obscene!”.

The explosive force of the situation was plain to see. Freedom of speech was endangered and the people knew it. So the gallerist engaged a renowned civil rights lawyer. He set out to argue that art doesn’t have to be pretty, that it might make one uncomfortable and might not be appreciated until much later: “You don’t have to like it, you don’t have to come to the museum.”

What is obscenity?

The trial began on September 24, 1990, before a jury of 8 people. The prosecutors had to convince the jury that the seven pictures were legally obscene, as “obscene” was defined by the Supreme Court in the 1973 case Miller v. California. Miller says that material is obscene only if:

(1) the average person, applying contemporary community standards, would find that the material as a whole appeals to the prurient interest;

(2) the material depicts or describes sexual conduct in a patently offensive way; and

(3) the material, as a whole, lacks serious literary, artistic, political or scientific value.

The value of art

During evidentiary hearing, the defence argued that the prosecution should not be able to present just the seven photos out of the more than 170 shots in the exhibit—that together they composed a body of work that had to be considered as a whole. Just as it would be misguided to judge the merits of a novel based only on a five-page sex scene. But the prosecution prevailed, and the jurors were prohibited from seeing any more than the seven pictures in question.

Therefore, a big challenge was to make sure that the jury understood the context of the photographs. So the defense got art expert witnesses to see it at the CAC to describe the works, and explain the context and the presentation of the photographs as art. The art experts called the pictures the work of “a brilliant artist,” with “symmetry” and “classic proportions.” The defence argued further, that art didn’t have to be aesthetical, stressing the importance of the emotions elicited in the viewer and citing photographs of the holocaust.

In October, the jurors found the CAC and the gallerist not guilty of the charges of displaying obscene material. The acquittal of the Mapplethorpe defendants reaffirmed the obscenity principles of Miller v. California and the protection of the free speech in an area just starting to become accepted in society: homosexuality.

In Germany: Josefine Mutzenbacher

In the very same year, the German Constitutional Court ruled on art and obscenity as well in “Josefine Mutzenbacher”. The book “Josefine Mutzenbacher. Die Geschichte einer Wienerischen Dirne. Von ihr selbst erzählt,” is an erotic novel published in 1906 in Vienna and is attributed to Felix Salten (who also wrote Bambi, make of that what you will). Because of its explicit content, the German youth welfare office indexed the work in 1981 for being “dangerous to young people”.

The reason given was that the novel was seriously harmful to young people because it “grossly and obtrusively emphasised the sexual events surrounding the title heroine, excluding all other human references. Child prostitution and promiscuity were viewed positively and, moreover, were even played down and glorified. The novel was nothing more than a “pornographic collection of jobs” and a “tally sheet” about the sexual activities of the title character. Problems of pornography and incest were not processed artistically, but were used solely to intensify the appeal.”

The publisher Rohwohlt sued against this decision and the case “went all the way up” to the Constitutional Court,

Who is the state, to judge art?

The deciding senate had much less qualms than some parts of the US-American public on deciding between art and obscenities. It made clear that a work’s recognition as art cannot be made dependent on state control of style, level, appeal and content:

“The restricted book falls within the protective scope of the freedom of art. (…) It is the result of free creative arrangement, in which the author’s impressions, experiences and fantasies are expressed in the literary form of the novel. Creative elements can be seen in the description of the milieu in which the prostitute works, as well as the use of Viennese vulgar slang as a stylistic device. Further, the novel also permits a variety of interpretations. (…) It could for example be interpreted as satire (…). Further, the heroine can be seen as the embodiment of male sexual fantasies. Elements of parody are also recognizable in many parts of the book.”

Indeed, today, the novel is considered to have quite some artistic merit. It sheds light on the hypocrisy of the ‘high classes’ during Fin-de-Siecle Vienna. It is written in Viennese dialect – giving it documentary value for those times and shedding some light on the everyday life at the margins of society where the action of the book is placed.

The Court reversed the youth welfare office’s decision and left it to them to decide again on a listing in accordance with its case law. However, the youth welfare office only removed the work from the index in 2017, having set the book back on the list immediately after the ruling in 1992.

We have to leave traditional ideas of beauty behind us

Both cases highlight the obstacles imposed on art by moral censorship, which are no less up-to-date today than they were in the 90s. In the era of modern and post-modern art, which tests conventional notions of beauty more than ever, there is just no place for state enforcement of aesthetics. What is beautiful or can be expressed through the means of art evolves each and every day. It’s the legal order’s job to protect freedom of expression from censorship.

The Local Court of Darmstadt (a city not necessarily known for its avant-garde creative scene) made a fitting remark in its 1971 decision “Roman Barbara” which I think is a good note to end this article on:

“That art and pornography are not necessarily opposites, that there can rather be artistic pornography, is widely recognized today… Aesthetic aspects have to be left out of consideration; the 19th century notion that art has to be oriented beautiful is no longer suitable today.”

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Image: John Stamstad/Contemporary Arts Center