Obsenity and public art funding - 13 August 1993

Do you remember the hullabaloo a year or two ago, about whether public money, tax money should be used to exhibit what a great many people considered an obscenity. I can sharpen the reminder of that incident, which shook the halls of Congress by putting in a question in the very coarse form it hit the public, in the words of a disgusted senator, "should the ordinary American citizen have no say in paying out his tax dollars to subsidise the public exhibition of a crucifix floating in a jar of urine?" That shocker and of course intended by the so-called artist as a shocker, it was only one item in an exhibition, which had been funded in part by an independent government agency, the National Endowment for the Arts.

Another exhibition, which drew almost equal indignation in Congress and among the public was an exhibition of photographs by a man greatly admired by the avant-garde one Robert Mapplethorpe. His sin, from the point of view of the ordinary protesting taxpayer, me for instance, is that much of his photography was devoted to what is called "homoerotic figures and representations of sadomasochism".

Now I ought to say at once that two examples of the use or misuse of public money were minor scars on the immaculate body of an institution that does enormous good in promoting and backing artists, musicians, historians, documentary film-makers, works of scholarship – handing out money as so many private foundations do to help gifted people do some original work in scholarship or one of the arts, the media that they otherwise couldn't do without resorting to the indignity of taking a job like Geoffrey Chaucer in his customs house, TS Eliot doing nine to five as a publisher, Wallace Stevens earning his keep as an insurance agent.

The row in Congress was never resolved, though the main protesting rebel, Senator Jesse Helms the North Carolina Republican failed to get a law passed that would more explicitly restrict the sort of thing the National Endowment could finance.

However, Senator Helms achieved a kind of victory in alerting the public to the extremes of free speech the Endowment was likely to sponsor. The chairman of the Endowment stepped down confessing that the job of deciding what to put money behind and what not was a job he wouldn't wish on his worst enemy. And of course what the crucifix in the jar row did was to encourage very earnest or way-out artists, self-declared artists to test the Endowments principles of choice by putting up seriously of facetiously fairly outrageous projects. If the Endowment then condemned them or withdrew their grant, they would then surely sue the Endowment for violating their rights of free speech under the first amendment to the constitution.

In the past, oh 20 years or more, publishers, television producers, most of all movie producers, can put out almost anything they choose by way particularly of sexual titillation or sexual performance. Wait for a theatre to refuse to show it, howl censorship and go to court on that good old First Amendment and probably win because the courts including the highest in, I believe, most if not all of the western democracies have given up on defining obscenity. It maybe worth taking a quick hawk's-eye view over what it meant in the law and what it no longer means.

The most obvious landmark I can spot is a British act of 1857, which authorised the seizure on the offending premises or in the malls of, quote, "obscene matter whether it be in writing or by picture, effigy or otherwise". "Otherwise" leaves great leeway for invention. But you see it doesn't define obscenity at all, it just assumes everybody knows what it is like. A recent justice of the United States Supreme Court who being asked to define obscenity limply replied, "All I can say is, I know it when I see it". Sometime in the 1880s, I think, the law in both countries moved closer to a definition. The intention of the author, the painter, the photographer or otherwise became the point. The intention, the new law said "of corrupting morals", whose morals?

In Britain and America, anything tending to the corruption of minors, the French shrugged their shoulders at that, gave a broader license to titivating stuff provided it did not l’homme moyen sensual – the average sensual man. Who’s he?

In law, women you notice are either beyond sensuality or corruption or don't count. The British and the Americans alternated between applying the corruption of minors standard and more rarely the corruptibility of the average sensual man, many an English judge wondering in passing if he himself was more or less average. And then almost 60 years ago now, a very large door to all sorts of debatable literature was flying open by an American judge presiding in the southern district court of New York, which is in practice the supreme court of the state of New York.

He had before him the question of retaining the ban, which was absolute throughout the United States, the ban on James Joyce's Ulysses; he lifted it and in so doing opened up a new view of obscenity. Judge Woolsey said that what mattered in a work that appeared superficially to be obscene was the total effect of it as a work of literature. In his interestingly original judgement the question was "is Ulysses titillating sexually, an aphrodisiac?". On the contrary, he ruled the total effect is somewhat emetic, he then added a waggish aside, which he couldn't know then, but which has proved to be an open sesame for all sorts of pornographers, let's not forget said Judge Woolsey still talking about Ulysses that Joyce's locale is Celtic and his season is spring. In the long course of time, that excuse came to be exploited with enthusiasm by sex magazines pretending that their entwined or throbbing nudes were the victims of summer heat in say a tropical locale.

Well pretty soon to be truthful, pornographers needed no legal quibble at all because one DH Lawrence's Lady Chatterley's Lover was let in and then the more steamy and clinical sex novels of Henry Miller, not legal doors but floodgates were open.

One of the last efforts to plug the dikes with a legal thumb happened, oh quarter a century or more ago, in the 1960s, anywhere when the Supreme Court of the United States convicted a man not for publishing an erotic magazine, but for what it called prurient advertising and promoting it. That rather baffled defendant, I believe he served time, you certainly find had published a magazine that was by the grossest definition mildly erotic, but not remotely as explicit, I mean as genital, as the gorgeous centrefolds and off-centrefolds of the fat and prosperous magazines that sell in the western world in their millions and that represent in brilliant palpitating colour just about any form of sexual intercourse imaginable.

The Supreme Court has not to my knowledge ever taken up these masterpieces of obscenity. In about 1975, the top court just about decided that there was no national federal standard definition of obscenity, it shifted the burden of judgment to the states of if they cared, to the cities, they could fairly ban what their community would consider obscene – so who's that? A lot of people raised Cain when the crucifix photo was shown in Chicago, but the moment people heard about it, there were long long queues. I suppose people, lots of people loved to see obscenity but hitherto somebody in society, church or the courts have told them what they could not see.

Today, we've given up and the judges are as much to blame as anybody for letting the media, the movies, the magazines ride a wave of filth and violence masquerading as free speech.

As for the National Endowment for the Arts and its chronic problem of whom to subsidise and why, it has a new director and a hilarious new problem of what is right and fitting to fund with public money. Of course their problem starts and ends with defining in every case what is art and what is art that is worth backing with the public's taxes, it seems at the moment that art is anything the so-called artist says it is.

Here's one for the books if not for the courts. Last Tuesday, three young artists went out on the hot dusty streets of a small California town just north of the Mexican border, they had in their hands small packs or bundles of crisp $10 bills, which together made up of $5,000 grant given to them indirectly by the National Endowment for the Arts. Come one, come all or some such John the Baptist invocation was the cue for a line to form, a line of illegal Mexican immigrants. It was important to the trio of artists with the bundles that the people should be illegal and once that was settled, the three artists then practised their art, they gave away to each supplicant a $10 bill.

This was meant to stress the illegal alien's role if any in the economy. Anyway, the process of handing out $10 bills is called by the artists "arte reembolso" – art rebate – an outrage, declared a local congressman. The head man of the trio, a very serious artist says what their doing constitutes a work of art and a political statement; better put it in his words which are concise, explanatory and remarkable. "We are demonstrating," he said, "the interaction a physical space with intellectual space and civic space." So there.

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