By Ken Paulson, President, First Amendment Center
January 3, 2004
The freedoms contained in the First Amendment have paid extraordinary dividends for American society. In addition to shoring up democratic principles and ensuring freedom of faith, the First Amendment has nurtured the arts, arguably the most vibrant and diverse in the world.
Although the First Amendment refers specifically to the freedoms of speech and press, it in fact encompasses a wide range of expression beyond publications and the spoken word. All art forms — including plays, music, dance, film, literature, poetry and the visual arts — enjoy considerable First Amendment protection.
Of course, the First Amendment only protects against government restriction of artistic expression. It does not apply to the actions of private citizens or businesses.
While government may not shut down an art gallery because it disagrees with the viewpoint reflected in a painting, an art gallery owner can always decline to display a piece of art.
While government may not ban a compact disc because it is offended by the sentiments expressed in a song, a corporation like Wal-Mart can choose not to sell CDs with parental advisory labels.
In analyzing cases involving the First Amendment and the arts, courts focus on the nature of the speech. Historically, so-called “political speech” has enjoyed the greatest protection. A painting lampooning the president of the United States, for example, would be regarded as political speech and enjoy substantial protection from government encroachment. Similarly, art that conveys specific ideas through written or spoken words are highly protected forms of expression.
In theory, visual arts of a more abstract nature would enjoy less First Amendment protection. The greater the expressive content of the work, the greater the likelihood of constitutional protection. A painting, for example, enjoys greater protection than handmade jewelry.
In determining the constitutionality of a government restriction on free speech, courts will weigh the government’s interest in regulation against the value of the speech. Again, artwork or performance with clearly expressive content will be accorded the most weight in that balancing test. A nude performer in a touring company of Hair is accorded greater protection than a topless dancer in a bar.
In assessing the scope of First Amendment protection for the arts, courts have had to grapple with a number of fundamental issues. Is art protected by the First Amendment when its intent is primarily to entertain rather than inform? Is art protected by the First Amendment even if its primary purpose is to make money? Does the First Amendment apply if the art has a negative influence on young people?
The U.S. Supreme Court’s 1952 decision in Burstyn, Inc. v. Wilson illustrates how the Court has grappled with these issues. This case explored whether the First Amendment prevents the prior restraint of motion pictures.
From the earliest days of film, there had been government efforts to censor it. The first state censorship board was formed in Pennsylvania in 1911, with Ohio and Kansas adopting similar boards in 1913. In 1915, the U.S. Supreme Court reviewed the Ohio law giving government the right to censor films. At that time, the Supreme Court limited its free-speech consideration to the guarantees contained in the Ohio Constitution and concluded that movies were an entertainment medium distributed for a profit and not a protected form of communication.
As the Court wrote in Mutual Film Corp. v. Industrial Commission of Ohio: “The exhibition of motion pictures is a business pure and simple … not to be regarded, nor intended to be regarded … as part of the press of the country or its origins of public opinion. They are mere representations of events, of ideas and sentiments published or known.”
That 1915 decision opened the doors to local censorship boards nationwide. All of that changed, however, in 1952. In its 9-0 decision in Burstyn, the U.S. Supreme Court decided that the New York Board of Regents could not ban Roberto Rossellini’s The Miracle under regulations barring “sacrilegious” films. Rossellini’s film was about an unstable young woman who is seduced by a bearded wanderer. The girl becomes pregnant, and in her deluded state concludes that the man was in fact a saint and that the imminent birth is a miracle.
Initially the New York Board of Regents granted a license to the film but withdrew the approval after angry protests from the Catholic Church. The Legion of Decency called the movie “a sacrilegious and blasphemous mockery of Christian religious truth.”
The case was appealed by film distributor Joseph Burstyn, giving the Supreme Court the opportunity to weigh in.
“It cannot be doubted that motion pictures are a significant medium for the communication of ideas,” wrote Justice Tom Campbell Clark in the majority opinion. “They may affect public attitudes and behavior in a variety of ways, ranging from direct espousal of a political or social doctrine to the subtle shaping of thought which characterizes all artistic expression.”
The Court concluded that movies are an important vehicle for public opinion despite “the fact that they are designed to entertain as well as inform.” Quoting its 1948 opinion in Winters v. New York, the Court noted “the line between the informing and the entertaining is too elusive for the protection of that basic right (a free press). Everyone is familiar with instances of propaganda through fiction. What is one man’s amusement teaches another’s doctrine.”
The Court went on to conclude that motion pictures are protected by the First Amendment even though they are developed and distributed as part of a business conducted for profit. Justice Clark observed that the First Amendment protects books, newspapers and magazines, most of which are published for profit.
Clark also noted public concerns that movies may “possess a greater capacity for evil, particularly among the youth of the community,” but said this could not justify private restraint. He did not rule out some form of community control in order to protect young people.
With this ruling, the Supreme Court put American movies on the same footing as books and newspapers. It wiped out the system of prior restraint that had governed the film industry for decades.
However, the industry, fearing state and local censorship, continued to “self-regulate,” with the pre-Burstyn Hays Office Production Code remaining in effect until the Motion Picture Association of America introduced its rating system in November 1968.
Free-speech advocates also warn that people should not be fooled by the fact that the rating systems currently used are considered “voluntary.” A “voluntary” program may seem to come from willing industry participants, critics say, but that compliance is usually due to significant pressure from lawmakers.
The Burstyn decision was one of many in which the nation’s courts have asserted First Amendment protection for the arts. Despite this growing body of law, however, controversies and legal battles over art continue. Many involve politics; some represent alternate approaches to regulating content. Some involve provocative art; others involve businesses and the assertion of property rights:
Government funding: Many high visibility battles involve government expenditures for the arts. In the early 1990s, the National Endowment for the Arts was criticized for funding work by Andres Serrano and Robert Mapplethorpe, two controversial artists.
Congress responded by requiring that the NEA operate so that “artistic excellence and artistic merit are the criteria by which applications are judged, taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public.”
In 1998, the U.S. Supreme Court ruled in NEA v. Finley that the law did not violate the First Amendment, concluding that no specific viewpoint was targeted and that “general standards of decency and respect” were not the sole grounds for decision-making by the NEA.
While the battle over the NEA has subsided in recent years — due in part to the agency’s greater emphasis on local grants — there have been other highly visible battles involving government funding of the arts.
This typically occurs when government has invested public funds in an art museum, but later objects to the art on display.
In 1999, then-New York Mayor Rudy Giuliani objected to the “Sensation” exhibit at the Brooklyn Museum of Art. He was particularly offended by a painting of the Virgin Mary which incorporated elephant dung, a ceremonial technique used by artist Chris Ofili.
The city demanded that the art museum cancel the show. When it refused to do so, the city withheld about $500,000 in funding. The money had been budgeted for general support of the museum.
U.S. District Judge Nina Gershon ordered the funding reinstated, finding that the city had violated the First Amendment.
“There is no Federal constitutional issue more grave than the effort by government officials to censor works of expression and to threaten the vitality of a major cultural institution, as punishment for failing to abide by government demand for orthodoxy,” Gershon said in Brooklyn Institute of Arts and Sciences v. City of New York.
To be clear, government always has the option not to fund art. Once it does, however, it cannot use its government power to restrict art that may be regarded as offensive, but which does not meet the legal test for obscenity.
Popular music: While direct government censorship of contemporary music is now relatively rare, the Federal Communications Commission continues to impose fines on radio stations for playing “indecent” lyrics during hours in which children may be listening.
Today, music-censorship issues are more frequently found in the private sector. After Congressional hearings in the 1980s helped spur parental advisory labels, some major retailers have used the advisories as a litmus test in order to decide whether to carry certain products. Some retailers refuse to carry CDs with parental advisory warnings. This has the unfortunate effect of punishing those who are making a conscious decision to alert parents about potentially questionable content.
Marketing issues: While government is restricted in its ability to censor art and popular culture, there have been increasing attempts to address content through restrictions on marketing. In recent years, Congress and the Federal Trade Commission have been highly critical of the movie, music and video-game industries, contending that they aggressively target children in the sale of entertainment material with violent and sexual content.
One example of congressional strategy was introduction of the Media Marketing Accountability Act, which would have given the Federal Trade Commission the authority to fine entertainment companies up to $11,000 per day for labeling a product as suitable for adults and then marketing it to minors. The definition of marketing to minors was very broad. The FTC contended that a record company would be guilty of engaging in deceptive behavior if it placed an ad for a CD with a parental advisory label in a medium that attracts an audience “of which a substantial proportion is minors.”
Copyright: The Founding Fathers encouraged creativity with a constitutional guarantee of copyright protection. By giving Congress the power to promote the progress of “useful arts by securing for a limited time” exclusive rights to literary and artistic creations, the Founders motivated authors and others to develop original work.
Corporations that make money from creative works have a strong self-interest in keeping their content out of the public domain. They’re quick to assert their rights in court. This, in itself, is not a violation of the First Amendment. Both copyright and freedom of speech are guaranteed in the Constitution and courts have found ways to reconcile them over the years. The challenge to an artist, however, is knowing when he or she can make fair use of copyrighted material as part of the artistic process.
One recent example involved a lawsuit by toy manufacturer Mattel, the parent company for the Barbie doll, which sued MCA Records for releasing “Barbie Girl” a 1997 hit song by the Danish band Aqua. Mattel contended that MCA violated the manufacturer’s trademark on Barbie by using the doll’s name in the title and content of the song. The company alleged that Barbie fans would be confused and believe the song was an authorized product. MCA responded that the song would not confuse consumers and that it was satire protected by the First Amendment.
In writing the opinion in favor of MCA Records, 9th U.S. Circuit Court of Appeals Judge Alex Kozinski concluded that the song was in fact a parody, protected by the First Amendment.
The judge did not believe that consumers would be confused about the nature of the product. The judge found that “Barbie Girl” did not violate Mattel’s trademark.
“If we see a painting titled ‘Campbell’s Chicken Noodle Soup,’ we’re unlikely to believe that Campbell’s has branched into the art business, Kozinski concluded in Mattel v. MCA.
In January 2003, the Supreme Court refused to consider Mattel’s appeal of the 9th Circuit ruling.
Civil litigation: In recent years, some have argued that motion picture studios should be liable if individuals mimic criminal or destructive behavior they’ve seen in movies.
In June 2002, the 1st Circuit Court of Appeal in Baton Rouge, La., upheld a state district judge’s decision dismissing a lawsuit against the makers of the film “Natural Born Killers.”
The lawsuit filed against filmmaker Oliver Stone and Time Warner Entertainment alleged that the violent movie inspired two people to emulate the crime spree depicted in the movie. The suit, Byers v. Edmondson, was filed by the family of a victim of one of the crimes.
Drawing on the principles established five decades earlier, Chief Judge Burrell Carter said the assailants’ “decision to imitate the characters of a film is more a regrettable commentary on their own culpability, than a danger of free expression requiring courts to chill such speech through civil penalties.”