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Cincinnati v. Cincinnati Contemporary Arts Center

Obscenity Or Art?

The prosecutors had to convince the jury that the seven pictures were legally obscene, 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 material depicts or describes sexual conduct in a patently offensive way; and (3) the material, 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 decide whether 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 to the jury, holding that, "The court will not substitute its judgment for that of 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, the eight 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 and attorneys' fees.

The acquittal of the Mapplethorpe defendants reaffirmed the obscenity principles of Miller v. California and the protection of the First Amendment in 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.

Additional topics

Law Library - American Law and Legal InformationNotable Trials and Court Cases - 1989 to 1994Cincinnati v. Cincinnati Contemporary Arts Center - Significance, Obscenity Or Art?, The Nea And Sexually Explicit Art, Further Readings