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Thursday, September 8, 2011

ART ON TRIAL: CASE 10





The Issue: Censoring Artistic Expression and the First Amendment

In the 1971 case of Cohen v. California, U. S. Supreme Court Justice John Marshall Harlan II succinctly summarized the inherent subjectivity of determining artistic merit when he stated, "one man's vulgarity is another's lyric." Given that works of art often evoke such diverse and passionate responses, it is not surprising that artistic expression is the target of so many censorship efforts. For the artist, the identity of the censoring party may matter little. For constitutional purposes, however, the censor's identity is critical. Contrary to the perception of many, the First Amendment does not guarantee the right to express whatever we want, whenever we want. Rather, the Constitution is only a limit on governmental acts of censorship. The First Amendment simply would not be an issue, for example, if an owner of a strictly private art gallery took down a work because of viewer complaints. Thus, the initial query in any alleged violation of First Amendment rights is whether or not a governmental authority is involved.

Yet the distinction between a government censor and a private one is not always clear. Many private entities receive governmental support through funding and other means. With such support often comes some degree of governmental oversight or control. Further, government agencies often hire private contractors to perform tasks, including many that were traditionally within the exclusive purview of government personnel. When an artist or any other person is censored by an ostensibly private entity with links to government, courts must evaluate the degree and nature of the governmental nexus to determine if the First Amendment is implicated.

The Case: Lebron v. National Railroad Passenger Corporation

In 1992, artist Michael Lebron contracted to place an ad on Spectacular, a giant billboard space measuring 10' x 103' located in New York City's Penn Station. The proposed display was a photomontage, accompanied by considerable text, that played off a Coors beer ad that declared Coors to be the "Right Beer." The photomontage included images of happy drinkers of Coors beer juxtaposed with a Nicaraguan village scene in which peasants were menaced by a can of Coors that hurtled towards them leaving behind a trail of fire, as if it were a missile, with the caption, "Is it the Right's Beer Now?" The accompanying text, appearing on either end of the montage, criticized the Coors family support of right-wing causes-particularly the Contras in Nicaragua. AMTRAK, the owner of Penn Station, refused to allow the display, citing its policy to allow only commercial advertisements on Spectacular. Lebron filed suit in federal court, arguing that AMTRAK's actions were subject to the First Amendment because it was essentially a government entity, despite the fact that the Congressional act creating AMTRAK explicitly declared it was not.

The case was ultimately heard by the U. S. Supreme Court, which examined AMTRAK's history and structure. The Court observed that Congress created AMTRAK by special law, for the furtherance of governmental objectives, and retained permanent authority for the federal government to appoint a majority of the directors of the corporation. As a result, the Court held that AMTRAK constituted an agency of the United States for the purpose of individual rights guaranteed by the First Amendment.*

*The high Court's decision did not end the matter. The case was sent back to the Second Circuit Court of Appeals to decide whether, even under the First Amendment, it was permissible to limit ads on Spectacular to purely commercial advertising. The Second Circuit held that because AMTRAK prohibited all political ads from Spectacular, and not just those expressed by Lebron, it was constitutionally permissible for AMTRAK as proprietor of Penn Station to allow only commercial advertising on the giant billboard. More on the type of legal analysis employed by the court can be found under Displaying Art in Publicly Owned Spaces.

http://www.tjcenter.org/ArtOnTrial/censor.html
Is it the Right's Beer Now?
(photo montage, approximately 10' x 103')
by
Michael Lebron

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