The Issue: Harmful to Minors: Children Viewing Art
Few would disagree that protecting children is a legitimate and worthy function of government. When it comes to the arts, however, there is often sharp disagreement as to what exactly is harmful to children. The U.S. Supreme Court has held that erotic images that meet the legal definition of obscenity enjoy little, if any, constitutional protection and therefore can be banned from view of children and adults alike. But the legal definition of obscenity is much narrower than many people realize. Courts have made it clear that art is not legally obscene simply because it depicts nudity and/or presents a sexual theme. However, many are uncomfortable allowing children to view any artistic depiction involving nudity or a sexual theme even if it does not meet the legal definition of obscenity. Should children be denied access to materials that adults have a constitutional right to receive? As a practical matter, the answer often depends on whether access by children can be limited in a manner that does not substantially impair access to the material by adults. If it can, accommodation of some sort is often voluntarily made and usually resolves the matter (moving adult-oriented videos to an adult-only section of a store, for example). But what if such accommodation is difficult or impossible to make? On several occasions, the U.S. Supreme Court has held that government may not reduce the adult population to reading or viewing only what is fit for children. Thus, any governmental effort that denies both children and adults access to a non-obscene work depicting nudity or having a sexual theme is likely to be ruled unconstitutional.
The Case: Dwight Wesley Miller v. City of Pilot Point
For 28 years, Wes Miller has owned Farmers and Merchants Art Gallery in Pilot Point, Texas. In 2003, he commissioned local artist Justine Wollaston to design and paint a mural on the outside of the gallery. The finished work depicted a large hand pointing at an apple and a classical female nude on the other side contemplating the same apple. Wollaston said the mural depicted her interpretation of the Biblical narrative of Eve at the moment she made the choice to partake of the forbidden fruit.
Shortly after the mural was completed, Pilot Point police served Wes Miller with written notice that the mural violated a Texas law criminalizing the display of "harmful material" to minors. Under the law, harmful material is defined as "material whose dominant theme taken as a whole (A) appeals to the prurient interest of a minor, in sex, nudity, or excretion; (B) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for minors; and (C) is utterly without redeeming social value for minors."
The notice gave Miller several days to change the mural or face criminal charges. Although Miller did not believe the mural met the statute's definition of harmful material, he understandably did not want to be arrested. He avoided arrest and at the same time protested the police action by placing crime scene tape over the nipples displayed in the mural. In 2005, Miller sued the City of Pilot Point and its police department in federal court seeking a judicial declaration that the mural did not constitute material harmful to minors. The case is pending.
http://www.tjcenter.org/ArtOnTrial/harmful.html
Eve
(mural, approximately 12' x 50')
by
Justine Wollaston
