Robert Mapplethorpe in Cincinnati - 4 May 1990

Do you remember last year the hullabaloo in Congress about a young man who had taken an American flag out in the open and burned it as a test case of free speech?

He was arrested, tried, convicted. He appealed and his case went up to the United States Supreme Court. To the indignation of conservatives and the joy of the liberals the court, which since it acquired four Reagan appointees has been considered the most conservative court in 50 years, the court ruled, that no laws could prohibit political protestors from burning or otherwise defacing the flag.

This had the effect of declaring unconstitutional the flag desecration laws of 48 states, as well as a 1968 federal law. By now, this burning issue has burned out with surprising speed, but there is another free speech issue almost as inflammatory, and it has started to catch fire across the country.

It brings up against the question that has chafed the courts in more countries that the United States since 1933, and has plagued them as never before in the past, say, 20 years – the question of obscenity, how to define it and what to do about it as a matter of public law.

The present furore started last autumn when it became known that an exhibition of photographs by the late Robert Mapplethorpe had been partly funded by the National Endowment for the Arts.

An independent agency maintained by government subsidy – which means by the taxpayer – the national endowment, no one will deny, does splendid work in very many branches of the arts, giving grants and scholarships to writers, artists, musicians, architects, colleges, travelling companies, dancers, orchestras, researchers and lectures in practically any subject, that can be roped into a broad definition of the arts or the humanities.

Mr Mapplethorpe was a distinguished photographer, and nothing scandalous would have been heard about his exhibition of 175 photographs if they had not included seven photographs that have greatly offended many visitors. They portray nude children, images of sado-masochism and homosexuality.

There was an inflamed debate in the Senate, where, not only declared conservatives protested that such material should be sponsored with public funds. Senator Jesse Helms, the conservative firebrand from the Carolinas, wanted a law that would bind the National Endowment to refuse all grants to any person or project that represented anything that Senator Helms would define as obscene.

He specified practically every act or image that somebody had found offensive since men began to scrawl on cave walls, or write with quill pens on paper.

The Senate refused to go along with him, but the sense of the Senate was sufficiently admonishing to get through a law compelling the chairman of the National Endowment for the Arts to require all recipients of grants to sign a pledge that the monies would not be used to produce works that quote, "depict sado-masochism, homoerotism, the sexual exploitation of children or individuals engaged in sex acts, and which, when taken as a whole, do not have serious literary, scientific, artistic or political merit".

The endowment chairman, a highly cultivated and clear-minded man, does not like the law, didn’t think it necessary but it is now the law, and he has to go along with it. You notice that, it’s not a sui genera law, forbidding any of these things to individuals, to sponsoring corporations, to any show, book, sculpture or whatever, that is financed by private funds.

It simply says you can’t represent the forbidden topics or images when the taxpayer funds them through the National Endowment. A conclusion that some people deplore as a legal form of censorship and others think is about as reasonable a form of restraint as you could expect when you have in mind works paid for by the taxpayer.

Well, now the plot thickens and so do the legal niceties. The Mapplethorpe show has moved on, and is pleasantly housed in a city museum in Cincinnati, Ohio which I ought to say at once is not any middle western civic hold-over from Sinclair Lewis’s Main Street, but the city already distinguished for its museums, its orchestra, ballet, theatre and other artistic enterprises.

Cincinnati however, as a community, is proud of having established over the past 20-odd years its own strict interpretation of the Supreme Court's 1973 definition of obscenity, which would forbid any sort of pornography that taken as a whole lacks serious literary, artistic, political or scientific value.

More, I suppose, than any other city of comparable size in the United States, Cincinnati has gone after pornographers in all the familiar modern forms and prosecuted them and run them out of town.

It has been able to go so far because it has its own state law, not yet tested before the Supreme Court, which forbids appeals to prurient interests that are patently offensive to the average person applying contemporary community standards.

Well the contemporary standards of the Cincinnati community have satisfied the average person well enough, since Cincinnati has no strip parlours – which in this country go far beyond simple stripping into actual or mimicked intercourse – no peep shows, no so-called adult book stores and, what is more remarkable, no shops where you can buy hard-core videotapes. One or two of the raunchiest sex magazines are also banned.

So now, the Cincinnati city solicitor – he’s actually called that, everywhere else in the United States, a solicitor means a beggar, the English solicitor is the American attorney – the city solicitor, having looked over the Mapplethorpe show called a grand jury.

It sat, considered his evidence and on 7 April handed down an indictment against the director of the Contemporary Arts Center where the Mapplethorpe photographs are on exhibition. He will stand trial on obscenity charges.

The prosecutor, it's assumed, will apply the Supreme Court's 1973 formula and the Ohio state's own obscenity statute. As for the Supreme Court's test, that the work taken as a whole must be shown to lack serious literary, artistic et cetera value, question comes up – does "taken as a whole" mean the whole of the 175 photographs, or the whole effect of the seven offenders, or any one of them?

The Ohio state definition would be, I should think, harder to prove – that the whole work, or a part of it, appeals to prurient interest as an average person might measure them when applying contemporary community standards.

Wow, what a clutter of ambiguous words. Or words that could be made ambiguous by a posse of lawyers in good form. When you consider how many simple words and phrases in the Constitution of the United States have been argued over and reinterpreted over the past 200 years – "cruel and unusual punishment", "equal protection of the laws", "with all deliberate speed" – most of all, how do you define "Congress shall make no law abridging the freedom of speech".

That phrase alone, in the Bill of Rights, has been debated more relentlessly than the medievalists debated, how many angels could dance on the point of a needle. And it is surely on the meaning of freedom of speech through photography that the Cincinnati trial will turn.

You might say that there is one phrase which will help to confine the crime, or excuse it Ohio’s requirement to apply contemporary community standards – the defendant, the art centre director, could say that more Cincinnatians have been to see this exhibition than any in the city's history and that they left without protest, in good order.

The contemporary community standard has, of course, been used regularly in most obscenity cases coming before the court. In fact, in 1933 it liberated a whole library of literature that had formally been held to be obscene both in American and British law.

And that was the decision of the now immortal Judge John Woolsey in the southern district court of New York which allowed Joyce’s Ulysses to come to the United States. The total effect of the work, said Judge Woolsey, not nasty parts of it, was what mattered, and he said, "it must always be remembered that Joyce’s locale is Celtic and his season is spring".

Against this contemporary community standard you will always have justices on the Supreme Court who insist on guessing what was the original intent of the writers of the Constitution in the 18th Century. And somebody, some day, you may be sure, will judge, or imply at least, that the violent and vivid close-ups of sexual intercourse you can see five nights a week on a regular cable channel in New York, was just what Hamilton and Benjamin Franklin and Jay and the rest had in mind when they championed freedom of speech.

I was saddened but relieved to read in an interview with the most liberal of the present members of the Supreme Court, Justice Brennan, that he felt the court, like the courts in Europe he might have added, had jibbed or failed to define obscenity well enough to stop it.

When it comes to the pinch or the wince of nastiness the court stays with Justice Holmes’s stand of long ago, "it is not only freedom for the speech we admire, but freedom for the speech that we loathe", and when it comes to obscenity cases, whereas the majority of Americans believe they know it when they see it, and would like to ban it, the venerable justice is "always conclude, that the line where artistic or literary value passes over into obscenity is too fine to draw".

They seem to say wearily, with a sigh, better not dam up the pure stream of truth, even if it has to carry with it oceans of filth.

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