Plaintiff
State of Ohio
Defendants
Dennis Barrie and the Cincinnati Contemporary Arts Center
Plaintiff's Claim
That the exhibition of photographs by the artist Robert Mapplethorpe was obscene.
Chief Lawyers for the Plaintiff
Richard A. Castellini, Frank H. Prouty, Jr., and Melanie J. Reising
Chief Defense Lawyers
Marc D. Mezibov and H. Louis Sirkin
Judge
F. David J. Albanese
Place
Cincinnati, Ohio
Date of Decision
5 October 1990
Decision
The jury found the five photographs in question not to be obscene.
Significance
The acquittal of the Mapplethorpe defendants was a major reaffirmation of First Amendment freedom of speech protection in the realm of homosexual art.
In the spring of 1990, the Contemporary Arts Center (CAC) in Cincinnati, Ohioheld an exhibit of photographs by the late artist Robert Mapplethorpe. The exhibit was controversial from the start because of the openly homosexual nature of much of Mapplethorpe's work and was well covered in the Cincinnati press. There was a great deal of negative public reaction, and rumors spread thatthe city of Cincinnati would attempt to close down the exhibit under Ohio'sobscenity statute, which makes it illegal for any person to "Promote . . . display . . . or exhibit . . . any obscene material."
The CAC's director, Dennis Barrie, attempted a preemptive strike aimed at heading off an obscenity prosecution. The CAC filed an action for a declaratoryjudgment, which is a type of civil lawsuit, on 27 March 1990 in Hamilton County (which includes Cincinnati) Municipal Court. CAC asked the court to declare the exhibit not obscene, but on 6 April 1990 the court refused and dismissed the action. The next day, the Hamilton County Grand Jury indicted CAC and Barrie for criminal violations of the Ohio obscenity statute.
Of the approximately 175 pictures in the exhibit, seven were particularly controversial and were the focus of the ensuing trial. Two pictures were of naked minors, one male and one female, with a "lewd exhibition or graphic focus on the genitals." The other five were of adult men engaged in unusual sadomasochistic poses.
Obscenity or Art?
The prosecutors had to convince the jury that the seven pictures were legallyobscene, as "obscene" was defined by the Supreme Court in the 1973 case Miller v. California. Miller stated that material is obscene only if: (1)the average person, applying contemporary community standards, would find that the material as a whole appeals to the prurient interest; (2) the materialdepicts or describes sexual conduct in a patently offensive way; and (3) thematerial, as a whole, lacks serious literary, artistic, political or scientific value.
Both the prosecution and the defense wanted Albanese, rather than the jury, to make the decision on particular elements of the Miller test. Prosecutor Prouty argued that Albanese should determine what community standards were:
For the defense, Mezibov argued that Albanese and not the jury should decidewhether the pictures had serious artistic value:
Albanese, however, decided to leave all three elements of the Miller test tothe jury, holding that, "The court will not substitute its judgment for thatof the jury."
To prove the defense's claim that the seven pictures had serious artistic value, therefore, Mezibov and Sirkin brought in several art experts to testify.Although the pictures were of scenes such as one man urinating into another man's mouth, the art experts called them the work of "a brilliant artist," with "symmetry" and "classic proportions."
Apparently, the defense's experts convinced the jury. On 5 October 1990, theeight jurors found CAC and Barrie not guilty of the charges of displaying obscene material. Under Ohio law, the case ended then and there, because the state is prohibited from appealing a jury verdict. Coincidentally, the Mapplethorpe obscenity trial ended only two days after another widely publicized obscenity trial, namely the conviction in Florida of a music store owner for selling records by the rap group 2 Live Crew. Although CAC and Barrie were vindicated, the victory was expensive: The trial cost CAC over $200,000 in costs andattorneys' fees.
The acquittal of the Mapplethorpe defendants reaffirmed the obscenity principles of Miller v. California and the protection of the First Amendmentin a new area. This new area was the field of gay rights and the right of homosexual artists to express themselves. As Mezibov said after the trial:
Related Cases
The NEA and Sexually Explicit Art
Congress established the National Endowment for the Arts (NEA) in 1965 as aninstitution to distribute grant monies to artists and arts organizations. Beginning in 1989, with a controversy over an NEA-funded exhibit of photographsby the late Robert Mapplethorpe, the NEA has been at the center of a controversy over publicly funded art.
On one side are those who profess themselves proponents of free speech and/orthe arts, who hold that attempts to withhold funding for artwork such as Mapplethorpe's constitutes a type of censorship. On the other side are those whoposition themselves as defenders of public morality, who claim that the government has no business funding Mapplethorpe's photographs. To some, public funding of the arts constitutes yet another form of government intrusion into the lives of its people; to others, the refusal to fund sexually explicit artis itself a form of intrusion.
In medieval times and during the Renaissance, artists had patrons--initiallykings and cardinals, and later wealthy individuals--who funded their creations. The twentieth century has seen a return to the patronage system, in the form of government funding. Many consider the government's ability to make suchdeterminations just a product of the modern-day patronage system.
Sources
"Governmental Patronage," Sinclair Community College. http://www.sinclair.edu
State of Ohio
Defendants
Dennis Barrie and the Cincinnati Contemporary Arts Center
Plaintiff's Claim
That the exhibition of photographs by the artist Robert Mapplethorpe was obscene.
Chief Lawyers for the Plaintiff
Richard A. Castellini, Frank H. Prouty, Jr., and Melanie J. Reising
Chief Defense Lawyers
Marc D. Mezibov and H. Louis Sirkin
Judge
F. David J. Albanese
Place
Cincinnati, Ohio
Date of Decision
5 October 1990
Decision
The jury found the five photographs in question not to be obscene.
Significance
The acquittal of the Mapplethorpe defendants was a major reaffirmation of First Amendment freedom of speech protection in the realm of homosexual art.
In the spring of 1990, the Contemporary Arts Center (CAC) in Cincinnati, Ohioheld an exhibit of photographs by the late artist Robert Mapplethorpe. The exhibit was controversial from the start because of the openly homosexual nature of much of Mapplethorpe's work and was well covered in the Cincinnati press. There was a great deal of negative public reaction, and rumors spread thatthe city of Cincinnati would attempt to close down the exhibit under Ohio'sobscenity statute, which makes it illegal for any person to "Promote . . . display . . . or exhibit . . . any obscene material."
The CAC's director, Dennis Barrie, attempted a preemptive strike aimed at heading off an obscenity prosecution. The CAC filed an action for a declaratoryjudgment, which is a type of civil lawsuit, on 27 March 1990 in Hamilton County (which includes Cincinnati) Municipal Court. CAC asked the court to declare the exhibit not obscene, but on 6 April 1990 the court refused and dismissed the action. The next day, the Hamilton County Grand Jury indicted CAC and Barrie for criminal violations of the Ohio obscenity statute.
Of the approximately 175 pictures in the exhibit, seven were particularly controversial and were the focus of the ensuing trial. Two pictures were of naked minors, one male and one female, with a "lewd exhibition or graphic focus on the genitals." The other five were of adult men engaged in unusual sadomasochistic poses.
Obscenity or Art?
The prosecutors had to convince the jury that the seven pictures were legallyobscene, as "obscene" was defined by the Supreme Court in the 1973 case Miller v. California. Miller stated that material is obscene only if: (1)the average person, applying contemporary community standards, would find that the material as a whole appeals to the prurient interest; (2) the materialdepicts or describes sexual conduct in a patently offensive way; and (3) thematerial, as a whole, lacks serious literary, artistic, political or scientific value.
Both the prosecution and the defense wanted Albanese, rather than the jury, to make the decision on particular elements of the Miller test. Prosecutor Prouty argued that Albanese should determine what community standards were:
We're not required to show community standards because the court [Albanese] becomes the community.
For the defense, Mezibov argued that Albanese and not the jury should decidewhether the pictures had serious artistic value:
It would be inappropriate, it would be wrong, I submit, for lay people to guess and to speculate as to what constitutes serious artistic value.
Albanese, however, decided to leave all three elements of the Miller test tothe jury, holding that, "The court will not substitute its judgment for thatof the jury."
To prove the defense's claim that the seven pictures had serious artistic value, therefore, Mezibov and Sirkin brought in several art experts to testify.Although the pictures were of scenes such as one man urinating into another man's mouth, the art experts called them the work of "a brilliant artist," with "symmetry" and "classic proportions."
Apparently, the defense's experts convinced the jury. On 5 October 1990, theeight jurors found CAC and Barrie not guilty of the charges of displaying obscene material. Under Ohio law, the case ended then and there, because the state is prohibited from appealing a jury verdict. Coincidentally, the Mapplethorpe obscenity trial ended only two days after another widely publicized obscenity trial, namely the conviction in Florida of a music store owner for selling records by the rap group 2 Live Crew. Although CAC and Barrie were vindicated, the victory was expensive: The trial cost CAC over $200,000 in costs andattorneys' fees.
The acquittal of the Mapplethorpe defendants reaffirmed the obscenity principles of Miller v. California and the protection of the First Amendmentin a new area. This new area was the field of gay rights and the right of homosexual artists to express themselves. As Mezibov said after the trial:
Yes, we have a Bill of Rights. But it's meaningless unless you fight for it.
Related Cases
- Kois v. Wisconsin, 408 U.S. 229 (1972).
- Miller v. California, 413 U.S. 15 (1973).
The NEA and Sexually Explicit Art
Congress established the National Endowment for the Arts (NEA) in 1965 as aninstitution to distribute grant monies to artists and arts organizations. Beginning in 1989, with a controversy over an NEA-funded exhibit of photographsby the late Robert Mapplethorpe, the NEA has been at the center of a controversy over publicly funded art.
On one side are those who profess themselves proponents of free speech and/orthe arts, who hold that attempts to withhold funding for artwork such as Mapplethorpe's constitutes a type of censorship. On the other side are those whoposition themselves as defenders of public morality, who claim that the government has no business funding Mapplethorpe's photographs. To some, public funding of the arts constitutes yet another form of government intrusion into the lives of its people; to others, the refusal to fund sexually explicit artis itself a form of intrusion.
In medieval times and during the Renaissance, artists had patrons--initiallykings and cardinals, and later wealthy individuals--who funded their creations. The twentieth century has seen a return to the patronage system, in the form of government funding. Many consider the government's ability to make suchdeterminations just a product of the modern-day patronage system.
Sources
"Governmental Patronage," Sinclair Community College. http://www.sinclair.edu
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