The Issue: Obscenity and Art: Nudity
In the 1942 case of Chaplinsky v. New Hampshire, the U.S. Supreme Court declared that "obscenity" was a type of speech not protected by the First Amendment. As with several other narrow categories of speech listed by the Court, obscene expression was undeserving of First Amendment protection because it played "no essential part of any exposition of ideas" and was "of such slight social value as a step to truth that any benefit ...derived from [it] is clearly outweighed by the social interest in order and morality."
But what is obscenity? The definition is often in the eye of the beholder. Some people are offended by any depiction of human nudity, while for others, even highly sexual images are a classical form of artistic expression. Even Supreme Court Justice Potter Stewart struggled to come up with a coherent definition of obscenity, declaring in 1964, "I know it when I see it." Since then, the Supreme Court has articulated a more precise terminology, making it clear that nudity alone does not make an image obscene. The Court's 1973 guidelines for defining obscenity, laid out in the case of Miller v. California, are still being used today.* But haziness remains: even now, it is difficult to predict with certainty what material courts will classify as unprotected obscenity, and what they will safeguard as protected speech.
*Under Miller v. California, a work may be adjudged "obscene" only if it meets all of the following criteria:
- the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest (exciting lustful thoughts)
- the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law
- the work, taken as a whole, lacks serious literary, artistic, political, or scientific value
The Case: The United States of America v. Ten Erotic Paintings
In 1969, U.S. Customs agents in Baltimore seized ten paintings and drawings being shipped from Europe for an exhibition in the United States. The works were part of a much larger collection of erotic art previously shown in museums in Scandinavia. Among the ten pieces were works by Hans Bellmer, George Grosz, Karel Appel, Melle, Cesare Peverelli, and five other works by artists whose identities were unknown.**
The U.S. Customs agents seized the works under the authority of a federal law prohibiting the importation of obscene materials. The paintings and drawings were explicit in their showing of male and female sex organs, sometimes in conjunction or approaching conjunction. Although this case was decided before Miller v. California, the court applied a similar three-part standard as to what constituted obscenity. Despite the explicit sexual content of the works, both the trial court and the Fourth Circuit Court of Appeals found that the works all had artistic value and therefore did not meet the third legal criterion of obscenity.
**The reported decisions only identify the artist (if known) and the type of work of each the ten pieces that were the focus of the case. The above image, if not the specific drawing by Hans Bellmer involved in the case, is very similar in content and theme to other drawings by Bellmer contained in the larger collection.
http://www.tjcenter.org/ArtOnTrial/obscenity.html
Untitled
(pencil drawing)
by
Hans Bellmer
