ART ON TRIAL: CASE 16

The Issue: Desecrating the American Flag or Other Revered Objects

"Found Art" is a term often used to describe a trend, begun in the early 20th century, of incorporating everyday objects into works of art. Tote de tore, for example, Pablo Picasso's sculpture of a bull's head with horns, was made from a bicycle's seat and handlebars. As discussed in the section Public Safety and Artistic Expression, courts have upheld laws that prohibit artists from incorporating objects with inherently dangerous properties (such as live ammunition) into their works. The public safety reasons for such laws are obvious. The First Amendment will not, however, tolerate laws that prohibit incorporating non-dangerous but venerated objects into works of art simply because the work casts the object in a negative light. This conclusion is compelled by two U.S. Supreme Court decisions that struck down state and federal statutes prohibiting the desecration of the United States flag. Although neither of the cases involved works of art, the Court struck down the statutes because they were aimed at suppressing the disrespectful message conveyed by the desecration of an American flag. Thus, the analysis employed in those cases would be equally applicable to an attempt by the government to prevent an artist from using an American flag, or any other venerated object, in a work of art because it conveyed a disrespectful message.

The Case: Aubin v. City of Chicago (unpublished opinion)

In February 1989, Dread Scott, then known as Scott Tyler and a student at the Chicago Institute of Art, displayed his work What is the Proper Way to Display a Flag? as part of a student exhibition at the Institute. The work included an American flag laid out on the floor. Mounted on the wall directly above the flag were a photograph of various images of American flags and a shelf holding a book in which visitors were invited to record their thoughts about the display. In order to do so, however, they had to step on the flag. The work immediately provoked daily protests outside the Institute and Chicago's City Council soon passed a local ordinance banning flag desecration. In September, the ACLU wrote city officials on behalf of ten artists, including Tyler, asserting the ordinance was unconstitutional and asking if the city intended to enforce it. In response to the letter, the City filed a lawsuit in Circuit County Court against the artists, asking that the ordinance be declared constitutional. In November, Judge Kenneth L. Gillis ruled that the ordinance could not be used to prosecute artists who incorporate American flags in their works because “when the flag is displayed in a way to convey ideas, such display is protected by the First Amendment.” Judge Gillis went on to state, "[f]or every artist who paints our flag into a corner, there are others who can paint it flying high."

http://www.tjcenter.org/ArtOnTrial/flag.html
What is the Proper Way to Display a Flag?
(multi-media display)
by
Dread Scott