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Legal scholars and lawyers analyzing new
prohibitions on "obscenity" and "indecency"
on the Internet have focused primarily on the legal precedents
from broadcasting and telephones. I urge that the new provisions
also be considered in view of congressional regulation of art
funded by the National Endowment for the Arts,
including prohibitions on the funding of "indecency."
The visual images possible through the graphics capabilities on
the World Wide Web, an important part of the Internet, are better
understood by comparison with art galleries, films, and books,
along with television, radio, and telephones.
I compare congressional attempts to censor NEA and the Internet, especially as they impact artistic expression. Of special philosophical interest is the Congressional attitude toward "depictions" and "images," as well as the importance of artistic intention in these legislative restrictions. I then consider on-line images by Robert Mapplethorpe, the subject of extensive controversy at NEA, to see how congressional restrictions might apply in this brave new on-line world.
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Page numbers from the original publication are indicated in the text as follows: /p. x
Endnote numbers are hyperlinked to the notes at the end of this document and are indicated in the text as follows: (x)
Just when the heated debate over "indecency" at the National Endowment for the Arts had tapered off (along with funding from Congress!), along comes a new Federal telecommunications statute prohibiting "obscenity" and "indecency" on the Internet. Despite court decisions striking down the NEA provisions as violations of the First Amendment protection of free speech and despite threats of lawsuits against the telecommunications legislation, Congress passed the restrictions anyway. (1)
Legal scholars and lawyers analyzing new prohibitions on "obscenity" and "indecency" on the Internet have focused primarily on the legal precedents from broadcasting and telephones. I urge that the new provisions also be considered in view of congressional regulation of art funded by the National Endowment for the Arts, including prohibitions on the funding of "indecency." The visual images possible through the graphics capabilities on the World Wide Web, an important part of the Internet, are better understood by comparison with art galleries, films, and books, along with television, radio, and telephones.
I first compare Congressional attempts to censor NEA and the Internet, especially as they impact artistic expression. Of special interest is the Congressional attitude toward "depictions" and "images," as well as the importance of artistic intention in these legislative restrictions. I then consider on-line images by Robert Mapplethorpe, the subject of extensive controversy at NEA, to see how Congressional restrictions might apply in this brave new on-line world.
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I. PROHIBITING OBSCENITY AND INDECENCY:
THE LEGAL CONTEXT
I first briefly review recent prohibitions
on "obscenity" and "indecency," in order to
clarify the issues in the telecommunications "indecency"
ban. /p. 256
A. Miller v. California
In the well-known 1973 decision Miller v. California, (2) the U.S. Supreme Court established standards for prohibition of "obscenity" which would not violate the First Amendment. The court set forth a well-known three-pronged test:
(a) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest;
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
(c) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value. (3)
This language has been used by Congress
in the regulation of broadcasting and telecommunications, as well
as the NEA and now the Internet. But the Congressional attempt
to pass Constitutional muster by incorporating this language into
such legislation has not always succeeded in the courts.
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B. Sable and Pacifica versus
the Federal Communications Commission
Two Supreme Court decisions regarding free speech in electronic communication have dominated recent discussions of regulation of the Internet. One is Sable Communications of California v. Federal Communications Commission, (4) the 1989 decision that held that regulations prohibiting "indecent" (but not "obscene") communication on interstate commercial telephone communications (dial-a-porn) violate the First Amendment. The second is the 1978 decision Federal Communications Commission v. Pacifica Foundation, (5) which held that FCC regulations prohibiting "indecent" and "obscene" speech on the radio did not violate the First Amendment. Among the various factors distinguishing the holdings, the radio broadcast in Pacifica (George Carlin's monologue, "Filthy Words") could be heard by children and unwitting adults during the day, while the dial-a-porn telephone conversations in Sable were effectively restricted to adults who took affirmative steps to hear them and used credit cards to screen out minors. (6)
In Pacifica, the court held that "indecency" as not an overly broad (and thus unconstitutional) standard, even though "indecency" is broader than the "obscenity" prohibited under Miller. The court noted that special treatment is justified for broadcasting (here, radio) because of four factors:
(1) children have access to radios and in many cases are unsupervised by parents; (2) radio receivers are in the home, a place where people's privacy interest is entitled to extra deference, . . . ; /p. 257 (3) unconsenting adults may tune in a station without any warning that offensive language is being or will be broadcast; and (4) there is a scarcity of spectrum space, the use of which the government must therefore license in the public interest. (7)
These factors have obvious relevance to the Internet. Many children have access to computers in the home and are often unsupervised by parents. But one does not accidentally call up a Web site or log onto an e-mail program the way one might accidentally hear something on the radio. And Internet access is not scarce in the way radio airwaves are.
The Pacifica court also was impressed by concern for the time of day of the broadcast, as the monologue at issue was broadcast during the day when children were more likely to hear it. Indeed, the court left open the possibility that it would have allowed the same broadcast if it had been late at night when few children would be likely to hear it. (8) But this concern is irrelevant on the Internet, where the same content can be accessed 24-hours-a-day, 7-days-a-week, anywhere in the world.
The Pacifica court also acknowledged that the context within which the indecent words were included would be relevant. It noted that a prime time broadcast of one of the racier of Chaucer's Canterbury Tales might be acceptable as it ". . . would not be likely to command the attention of many children who are both old enough to understand and young enough to be adversely affected. . . ." (9) We can speculate that a painting of a nude deep in the recesses of an educational art history Web site might receive the same deference from the courts. The one clear similarity between Pacifica and the Internet, unsupervised access by children, also suggests the appropriateness of screening mechanisms implemented by parents, to remove this remaining concern of the Pacifica court.
In Sable, the court was satisfied that minors were effectively screened from the dial-a-porn service. The "community standards" of Miller were re-affirmed by the court, even though this was a national telephone service. The Court made clear that Miller had never established "national standards" for this test, and the requirement that the porn service might have to meet varying standards around the country did not nullify the "obscenity" standard of Miller. (10) This is highly relevant to the Internet issues, as it leaves open the possibility that Internet providers would have to comply with varying community standards. An AIDS information site acceptable in California might not be in the rural South.
Although upholding the "obscenity" prohibition, the Sable court held that the "indecency" standard was thus much broader than necessary to protect unwitting adults and underage minors from the dial-a-porn service. The Sable court reaffirmed the constitutionality of prohibiting "obscenity," consistent with Miller. (11) But it also held that the prohibition on "indecency" violated constitutional protections in the circumstances here, /p. 258 as it exceeded "the least restrictive means to further" the legitimate state interest in protecting children from indecent language. (12)
The constitutional protection of the telephone service drew from included the fact that adults would have to take affirmative steps to listen, (13) in contrast with the possible intrusion of a radio broadcast. One has to take many affirmative steps to look at a Web site on the Internet, but it should be noted that an affirmative step must be taken with a radio too, namely, turning it on.
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C. National Endowment for the Arts
Some of the Miller language was used by Congress in 1989, in the first of several attempts to banish "controversial" grants at NEA. In the appropriations legislation that year, Congress added this clause:
None of the funds . . . may be used to promote, disseminate, or produce materials which in the judgment of the National Endowment for the Arts . . . may be considered obscene, including but not limited to, depictions of sadomasochism, homoeroticism, the sexual exploitation of children, or individuals engaged in sex acts and which, when taken as a whole, do not have serious literary artistic, political, or scientific value. (14)
NEA required that grant recipients sign a certification that they would not violate this requirement. (15) This clause and the certification requirement were struck down as unconstitutional in a 1991 Federal District Court decision, Bella Lewitsky Dance Foundation v. Frohnmayer. (16)
Congress included the exemption for "serious literary, artistic, political, or scientific value." presumably to make this prohibition on NEA consistent with the Miller rule and thus more likely to withstand judicial scrutiny. But the court struck down the clause anyway, in part because NEA was incapable of applying "community standards," another prong of the Miller test. (17) To the surprise of many, the Lewitsky court ignored the exemption for "serious literary, artistic, political, or scientific value," and decided the case on other grounds.
The exception from Miller for "artistic value" would seem on its face to apply to all NEA grants recommended to the Chair for funding. Once NEA panels have made a determination that proposals have artistic value, they should not be obscenity under the Miller standard. Yet the Lewitsky court did not use this very obvious argument. One can speculate that the court was so eager to strike down the Congressional restrictions that it intentionally avoided this easy approach in its decision, although it had been argued by the artists suing NEA. It is possible that the court was uncomfortable resting this important decision on the panel process for determining artistic value, which also has been the subject of congres-/p. 259 sional unhappiness. Regardless, the Lewitsky court's refusal to consider the Miller exception for "artistic value" suggests that inclusion of this exception in the new Telecommunication Act would not necessarily help those concerned with restrictions on artistic and academic freedom on the Internet. (18)
Also of interest is the expansion by Congress of the nature of "obscenity." The Miller test characterizes an obscene work as one which "depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law." (19) The NEA appropriations language is considerably more specific in prohibiting "sadomasochism, homoeroticism, the sexual exploitation of children, or individuals engaged in sex acts." (20) This elaboration might have been intended as a substitute for the "state law" mentioned in the Miller test. No state laws applied at NEA, so this expansion might be intended to serve that function.
The NEA prohibition is limited to "depictions," while Miller addresses both "depictions" and "descriptions," a subtle hint that Congress was more worried about visual art at NEA than literary art.(21) As the prohibitions were passed in the midst of the controversy surrounding the work of such visual artists as Robert Mapplethorpe, this emphasis on depictions, rather than verbal, literary work, is understandable, although not justifiable.
Congress tried a different approach in the 1990 reauthorization of NEA. A definition of "obscene" was added that more closely parallels the Miller three-pronged test. (22) But the enforcement of this clause by NEA before a funding decision was a fatal problem to the court, because the Federal agency was not considered capable of determining "community standards." The court rejected the proposal that NEA could establish national standards through its review panels. (23) This line of argument should have potential in striking down similar FCC regulations, but it has not been used to date in those cases.
Another clause added in 1990 required that
NEA take ". . . into consideration general standards of decency
and respect for the diverse beliefs and values of the American
This provision was struck down as unconstitutional in 1992 in
Finley v. National Endowment for the Arts.
(25) The concept of
"indecency" is much broader than "obscenity,"
the court reasoned, and thus would prohibit a substantial amount
of protected speech. The court also held that the "decency"
standard was unconstitutionally vague, thus violating the Fifth
Amendment due process clause. Among other things, this clause
means that we may not be subjected to statutes which are so vague
that ordinary people could not understand what they mean and thus
could not avoid the conduct prohibited. (26)
Although the court cited several first amendment cases in its
analysis of "decency," it only briefly references the
line of cases in telecommunications law which also have considered
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D. Telecommunications Act
The new Telecommunications Act of 1996 (28) includes prohibitions on both "obscenity" and "indecency," with elements of the earlier NEA prohibitions, but also some striking contrasts. The prohibitions are directed to communications that would constitute harassment of anyone (adults and minors) and communications that could be seen by minors (under 18 years of age). One problem, of course, is the extensive access of minors to on-line services. To comply with the prohibition, content also must be limited for adults who are voluntarily using the services in the privacy of their own home, which traditionally has been sacrosanct. (29)
The controversial provisions are included
in the sections referred to as the Communications Decency Act
(CDA) of 1996. (30)
A temporary restraining order
was issued on February 15, 1996, blocking the provisions prohibiting
"indecent" speech, as it appeared that the CDA might
be "unconstitutionally vague" in the use of the term.
The provisions prohibiting "obscene" speech were not
restrained. (31) The
Justice Department agreed not to prosecute anyone for "indecent"
or "patently offensive" material on the Internet until
a decision on the request for a preliminary injunction. (32)
That hearing, by a three-judge panel, began on March 21, 1996.
(33) Another lawsuit
was filed in March by a coalition of libraries, universities,
publishers and Internet-access companies. (34)
Internet users, especially college students, have staged various
protests. (35) Major
newspapers have editorialized against the provisions. (36)
Legislation was introduced to repeal the challenged provisions.
The harassment prohibition is stated in sweeping terms, to subject to a fine, or imprisonment for up to two years, anyone who does the following:
(1) In interstate or foreign communications--
(A) by means of a telecommunications device knowingly--
(I) makes, creates, or solicits, and
(ii)initiates the transmission of, any comment, request, suggestion, proposal, image, or other communication which is obscene, lewd, lascivious, filthy, or indecent, with intent to annoy, abuse, threaten, or harass another person. (38)
The prohibited activity must take place through use of a "telecommunications device." "Old-fashioned" verbal, harassing telephone calls obviously fall under this ban. In addition, people working at home on computers with modems linking them to Internet servers are using a "telecommunications device," and thus also would be subject to this provision.
Note that the prohibited communications include "images." Now that /p. 261 image files can be sent over the Internet, indecent communications with visual images are possible. The prohibited images include both the "obscene" and the "indecent." "Obscenity" is on stronger footing (due to the Miller decision) than "indecency" (because of the Sable, Pacifica, and NEA decisions).
The nature of these images raise issues of concern for artists. If an image of the notorious Andre Serrano's "Pieta II" (39) were sent to a political enemy to annoy that person, would that count as an intent to send an indecent image to annoy another person and thus violate this clause? In recent years, conservative political groups have sent their followers direct mail decrying a handful of "controversial" grants at NEA and asking for money for conservative political campaigns. If such a conservative fund-raising campaign posted the Serrano image on their Web site to outrage their supporters, would this count as harassment? It was intentional, it was arguably an "indecent" image (at least as Jesse Helms understands "indecency"), it was intended to annoy the viewer, ergo, this seems to be illegal "harassment." Ironically, then, this clause might be used to penalize conservative fund-raisers, although that does not appear to be congressional intent. (40)
The harassment clause requires multiple intentions by the person engaged in this prohibited behavior. Persons must "knowingly" make, create, solicit, or initiate the transmission. This requirement seems to exclude a computer novice confused about the file transfer program, who unwittingly sends x-rated love letters to a stranger. The person must also intend "to annoy, abuse, threaten, or harass" the other person. Must the person also intend that the communication be "obscene, lewd, lascivious, filthy, or indecent," either to themselves or to others? The language here is unclear. If you intend to send an e-mail message and intend to annoy the recipient, but do not do it in such a way as to be obscene, lewd, lascivious, filthy, or indecent, this clause would not seem to apply. Sending an e-mail message to nag someone about the five dollars he owes you would be intentionally annoying but not prohibited harassment. But what if you intend to send a message and intend to annoy someone with whom you are angry, using words which decent people would not consider indecent, but which your recipient, perhaps because of personal religious views, did consider indecent?
The sender of the communication also must
intend a certain response in the recipient of the communication,
namely that the recipient will be annoyed, abused, threatened,
or harassed. In the Miller test, there is no comparable
requirement that the person creating the "obscene" material
intend any particular response in the people who see it. The Miller
test is focused instead on the response that the average person
would actually have (viz., that the image appeals
to prurient interest), not on the response /p. 262 intended
by the communicator. Either requirement, though, is a heavy role
indeed for artistic intentions, which can be notoriously difficult
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Transmission to minors
The Telecommunications Act also prohibits transmissions that are "obscene or indecent" to a minor, if the sender knows the recipient is a minor. (41) Strangely, the clause omits content which is "lewd, lascivious, or filthy," limiting the prohibition only to the obscene and the indecent. Congress appears to have inadvertently endorsed the lewd, the lascivious, and the filthy, at least when communicated to minors.
The sender must have knowledge of several
things. First, the sender must knowingly initiate the transmission,
which eliminates our novice accidental file transferor. Second,
the sender must know that the recipient is under 18 years of age.
This clause seems directed to pedophiles who knowingly send obscene
communications to persons they know to be minors. The prohibition
on obscene communication seems consistent with the Miller
principles. But the inclusion of "indecency" in the
prohibition is more troublesome, as it is much broader and vaguer
than "obscenity." Is inclusion of on-line paintings
of nudes in an art history class for high school students the
transmission of indecency to people known to be under 18? Placing
materials on-line for such students might violate this clause,
as might a classroom on-line discussion of the images.
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3. Availability to minors
By far the most troublesome provision in the new statute prohibits the use of
. . . any interactive computer service to display in a manner available to a person under 18 years of age, any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs, regardless of whether the user of such service placed the call or initiated the communication. (42)
This prohibition creates the greatest problem for artists and educators, as it seems to apply to any Web site, commercial on-line services, Usenet discussion groups, and much more now available on the Internet.
The approach of Congress with the so-called V-chip in televi- /p. 263 sions is to put the onus on parents to purchase TV sets with the V-chip installed and to use it. (43) Could parents be held responsible for limiting access to on-line computer services? The three largest commercial on-line providers, America Online, Prodigy Services, and CompuServe, have provided subscribers with software that parents can use to block material they consider offensive. This parental control seems analogous to the V-chip in televisions and would provide a way to keep obscene material from children, without a ban that censors material adults should be allowed to see, consistently with the First Amendment. (44)
Many artists, of course, have on-line exhibits on the Web which are readily seen by anyone with access to the Internet, including minors. (45) The material at issue could be a written comment, a visual image, or some other type of communication, perhaps an audio clip that is inserted on-line. Some of the language in this clause comes directly from the Miller standard: "depicts or describes," "patently offensive," and "contemporary community standards." While Miller refers to "sexual conduct," the Telecommunications Act refers more expansively to "sexual or excretory activities or organs." Yet the language for the Telecommunications Act is narrower than the long list of prohibited sexual content in the NEA statute.
Neither the word "obscenity" nor
"indecency" appears in this clause, even though other
language from the Miller standard for "obscenity"
is used. A curious omission from this prohibition is the Miller
exemption for works with "serious literary, artistic, political
or scientific value." Critics of the new telecommunications
law have said that Congress should have included this, (46)
but the courts considering the NEA provisions ignored this clause,
even though it was included for NEA. (47)
Considering the on-going cultural wars, especially over what counts
as "art," this clause might be insufficient to protect
controversial artistic material in today's climate.
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The penalty for violating the Telecommunications Act would be a fine or two years imprisonment. The "penalty" which Congress attempted to impose with the NEA restriction was the denial of a grant. But both are arenas protected by the First Amendment. Even if the Web site creators are not receiving outright dollars from the federal government for on-line exhibits, they are receiving the benefit of the public's bandwidths on telecommunications lines. So in this sense there is a public subsidy.
Further, as many college students and faculty
use the Internet service providers at state universities, the
costs of the Internet use are met through state subsidies of the
universities. Denial of the use of the Internet by a state university
thus raises First Amendment
issues, because of this state action, independently of the Telecommunications
Act. If Internet access is a valuable service provided at the
discretion of the university, it looks (at least in that respect)
like a government grant from the NEA. (48)
However, as the courts made clear in the NEA disputes, one does
not park one's constitutional rights at the door of any government
agency, whether NEA or a state university. /p. 264
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II. LESSONS FROM THE ART WORLD
A. The Need for a New Paradigm
Is a Web site available on the Internet more like a bookstore, a movie theater, an art gallery, a Federal grant award, a radio broadcast, a telephone call, cable television, or broadcast television? In the law suit filed in February 1996 by the ACLU and others concerned about the new Telecommunications Act, the filings and the briefs on both sides of the First Amendment issues concentrate in their discussions of authority on the telecommunications precedents, especially Sable and Pacifica. (49) The decisions striking down the "indecency" provisions at the NEA are not mentioned. Clearly, the Internet does have much in common with the electronic communications, but it also has much in common with other channels of communication and therein lies the challenge ahead in developing appropriate legal analysis. (50)
The computer screen showing the images and sounds of a Web site is like a television in terms of the multi-media experience. But the Web is more like closed-circuit television or a television screen showing a videotape because of the selection available to the viewer and the affirmative decision needed for what is seen. (Pornography banned on TV over the air can be seen on a videotape, for example.) In visual content, a Web site is more like a print in a gallery than a radio. In its reliance on distant information transmitted over wires, the Internet is more like cable television than over-the-air broadcast television. In the on-line time charges for telephone access and on-line service providers, Internet computer screens are more like pay-per-view than over-the-air broadcast television.
The e-mail function on the Internet is less like TV or radio and more like a private telephone conversation or perhaps a written fax sent to the fax machine of a friend where no one else would have access to the communication. E-mail is directed to just one specific person. The communication is in writing, although one could transfer, through a file transfer program, a file which included a graphics or sound file. The receiver, however, would still have to make an affirmative decision to view or hear the file using the appropriate graphics or audio software.
A list-serv is a distribution of announcements
and comments to a set distribution list via e-mail. It is analogous
to distribution of a magazine through the mail to which each subscriber
has made an affirmative decision to subscribe. Even though recipients
do not control the content of each particular electronic message
or magazine issue coming to them, they did make the decision to
subscribe and they can just as easily unsubscribe, delete messages
unread, or toss magazines unopened into the trash. /p. 265
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B. Legal Applications: The
Culture Wars Ahead
Regardless of medium, it seems that existing prohibitions against "obscenity" would continue to apply, under the Miller standard, without violating the First Amendment. This is one area where there is consistency in the applicable court decisions, regardless of the form or medium of expression.
But the constitutionality of the "indecency" prohibition is far less clear. The courts have varied in their holdings, depending on media, access, and the narrowness of the restriction. The "indecency" requirements are currently under consideration in the Supreme Court for public access channels on Cable Television. One of the several issues is whether the term "indecency" is unconstitutionally vague in the FCC prohibitions. (51) The outcomes of these decisions are likely to be influential in the Internet cases.
One critical factor in the FCC cases has been whether acceptable controls were available for restricting "indecent" material to adults who choose to perceive it. This approach was used to protect dial-a-porn in Sable, for example, but the ban on "indecency" on the radio during daytime hours was upheld because there was no adequate way to restrict children or unwitting adults. The adult bookstore owner and the owner of the movie theater can also take responsibility for keeping out minors. It is more difficult to keep minors away from television sets and radios. Thus, so this argument runs, the government is justified in more extensive regulation of the latter, without running afoul of the First Amendment. (52) Is screening of the age of users feasible for providers of material on the Internet? Checking the identity and age of subscribers to computer services, as some commercial on-line providers now require, might adequately respond to this problem. Yet this also hamstrings persons posting new Web sites who cannot afford to establish a password or payment system to screen out minors who somehow got access to the Internet.
This broader standard of "indecency" also has been justified on the grounds that, as the airwaves are public property in limited supply, the public has an appropriate interest in regulating their use. Is the Internet a limited public commodity? The telephone lines and computer connections seem almost boundless, limited only by technology and the number of users trying to access different sites at the same time. The channels of communication might be limited by the present cable size, but not a finite limit like the range of public airwaves. Regulation on the grounds of limited supply of a publicly owned commodity thus does not seem warranted on the Internet.
The voluntariness of one's perception of the images, words, and sounds on the Internet seems especially relevant. The Sable court noted that one voluntarily chooses to call dial-a-porn telephone numbers, while radio is often heard involuntarily. The decision to log onto the computer and then /p. 266 access the Internet through a provider is clearly voluntary. It might seem that the decision to call up a particular Web page is also voluntary. But one concern is that some pages include information or images that one might not suspect when first calling up the page. (53) Cautious Web authors might include precautionary notes on the hyperlinks to such material so the user could choose not to click it, but a requirement for such warnings would involve a cumbersome regulatory system and a "chilling effect." It would be less restrictive to trust that Web users could simply hit the "stop" or "back" button to get rid of something they did not wish to see.
We can also wonder what the "community standards" should be for on-line exhibits. Should the community standards be those of the Berkeley or East Village neighborhoods where images are posted? the community standards of the minor in rural Iowa looking at the Web site? the community standards of Senator Helms in his Senate office? The court in the Finley decision said that NEA could not determine "community standards" at a Federal agency using national review panels. The Sable court held that having to comply with varying community standards around the country did not defeat the applicability of the Miller test for "obscenity," despite the inconvenience. The puzzle with the Internet is identifying which community applies -- that of the provider or the actual receiver or the potential receivers. As the Internet can be accessed in any location with access to the phone lines, that could be almost anywhere on the planet.
The "culture war" that led to the repeated attempts to censor grants at NEA apparently fueled the effort to add prohibitions on "obscenity" and "indecency" in the Telecommunications Act. In subtle ways, however, Congress seems vaguely aware of differences in the expressive media of these "indecencies." As noted, the 1989 NEA restriction was limited to "depictions," not to "descriptions," even though the Miller test addressed both. Although one could plausibly be said to "depict" a scene in a literary narrative, the more likely meaning is that depiction pertains to visual expression. Historically, this country has endured numerous "book-burning" episodes and controversies involving literary works still abound. Congress seemed most inflamed in 1989 by the visual art of Robert Mapplethorpe (and others) and apparently wrote the 1989 restriction in response to that. Is it possible that Congress also thought that visual expressions were more blatant, more likely to be explicit indecency than verbal descriptions, as they leave less to the imagination or literary interpretation?
In contrast, in the Telecommunications Act,
verbal communications (comments, requests, suggestions, proposals)
seem as important as the visual images. Congress, aware of foul
language over the telephone, as well as indecent pictures over
the Web, decided to attack both. Perhaps this /p. 267 was
mere even-handedness, not singling out visual images as Congress
had done in 1989. But Web-surfers also know that visual art is
dominant on the Web, perhaps because it is such a "natural"
for using graphics capabilities. Even if "indecent"
artists still manage to get grants from NEA, Congress wants to
keep them off the 'Net.
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C. A Case Study: Mapplethorpe
In the Telecommunications Act, it seems that Congress combined the prohibitions they wanted to use against Mapplethorpe, as well as prohibitions they would like to use against X-rated films on cable television. Congress felt that its Draconian measures against the NEA were justified because public tax money was involved. Even if Mapplethorpe's art was allowable under the First Amendment, so Congress seemed to reason, surely it was not entitled to the hard-earned money of the taxpayers through an NEA grant. Now Congress wants him (and his ilk) off-line.
To see how these new prohibitions on the Internet might be applied against Mapplethorpe, let us consider examples of his work available on the Internet. (54) Despite extensive searching, only a few Mapplethorpe images currently can be found on-line. (55) One is a photograph, "Self-Portrait with Whip" (1978), (56) included in an on-line exhibit called "Self," by a gallery at the University of California, Berkeley. (57) When one first "links" to the gallery site, four images by other artists are shown. The Mapplethorpe is listed verbally with fifteen other images, and one must make a further link to the Mapplethorpe to see it. The image one sees is approximately 1-1/2" x 1-1/2" on the screen and on the print-out. The screen with the image has no identification whatsoever. Because of the small size and blurriness of the image, it is difficult to recognize precise detail. Indeed, one's first impression could be that of a frazzled house-husband bending over a vacuum cleaner hose.
Another Mapplethorpe image is a photograph, "Untitled (Seated Nude)" displayed by the Dallas Museum of Art. (58) The image size is approximately 4-1/4" x 3" on-screen and on the print-out. It includes a small caption at the bottom with the name of the artist, the title, the copyright notice, and a notice that the material is for "educational use only and is not a public domain image." "Untitled" is a photograph of an African-American, muscular male seated on what appears to be a cloth-covered pedestal or small round table. The male has drawn his knees up to his bowed head, with his arms clasped around his legs. The photograph on screen is in shades of black, gray, and purple.
Another is the only one of the group that plausibly could be considered "X-rated," "Man in Polyester Suit," (59) which is included on a Web page called "Robert Mapplethorpe Traveling Exhibition." It is part of an /p. 268 on-line project called The File Room, an extensive on-line collection of art that has been censored, going back many centuries. It has been assembled by the Randolph Street Gallery in Chicago, with support from the School of Art and Design and the Electronic visualization Laboratory at the University of Illinois at Chicago.
Although the page includes factual information about the controversy at the Cincinnati Contemporary Arts Center when the work was shown, the name of the image is not included on the Web site. The image, in shades of black and gray, measures 2-3/4" x 3-1/2." It shows a black male in a three-piece suit, cropped just below the shoulders and just above the knees. The man's sex organ is clearly visible from the front opening of the trousers, but only the general shape, not the graphic detail of pornographic magazines. The image appears on the first of two pages of the site. Although there is no specific warning to the viewer of the material ahead, several affirmative decisions are required by the Web surfer before the image is seen. First is the decision to look at the File Room site, followed by the decision to look at the Mapplethorpe page, knowing the infamous work of Mapplethorpe.
Another image that some might find questionable is "Thomas," (60) a 1986 photograph in black-and-white included in an on-line exhibit by the University of California, Riverside, California Museum of Photography. (61) A muscular nude male poses in a square "frame" with "private parts" clearly visible in silhouette. Yet the silhouette is no more graphic than the shadow cast by William Hurt in the bedroom-closet scene in Broadcast News.
The process of viewing any of these photos on-line is quite different from viewing them in a traditional gallery or as reproductions in a book. As Web surfers know, images "load" onto a screen rather slowly. They also load differently, depending on which browser one is using. In some, one first gets a block of black space that slowly fills in with increasingly refined dots that finally crystallize into the image. In others, the block of black space appears first, followed by the appearance of the picture gradually from the top to the bottom of the space.
The "Self-Portrait" is so small and so grainy (or perhaps blurred), that it is difficult to be sure when the entire portrait has loaded. Thus, there is difficulty discerning when the picture is "finished," or, indeed, what the image is. "Untitled" is eerily beautiful as it slowly unfolds and the colors and shapes emerge. The process of down-loading is rather like watching time-lapse photography of flowers opening. The process creates what seems like an animation of the still photograph, rather a different experience from appreciating the work in a gallery or book of reproductions. Indeed, the visual experience is so different that we can ask serious questions about the identity of the work. Is it the "same" work, albeit a reproduction? Should the presentation of an image on-line be considered the "appropriation" (with or without permission) of a still image to create a new work?
We might consider whether watching the image download is analogous to watching a curator hang a picture on the gallery wall before the exhibit is ready to be seen by the public. Or perhaps it is like watching the lay-out editor of a book assemble the photographs on the page of a manuscript. Yet in these more "traditional" situations, the image is complete before the curator or the editors begin to assemble the work for display. (Admittedly, there is some contemporary art that is created before our eyes in the gallery, such as performance art, but this is the exception.) For the image loading on-line, the image seems to be created before our eyes, as shapes and colors gradually emerge. The artist might play a role in designing the on-line exhibit, of course, in which case we could ask whether the artist is creating a new work. But the artist need not participate. (Indeed, Mapplethorpe had died before his work was available on the Web.)
In the traditional gallery, observers vary in the knowledge they bring to the work, in their eyesight, in the corrective glasses they may or may not wear. All of those variable factors are present for on-line images, of course. But unique characteristics of on-line Web images also affect what we actually see and our sense of the identity of the work, including the modem speed of the server and of the receiving computer. Whether the image loads at 28.8 bps or 14.4 bps changes what you see as the image downloads. The speed with which the image downloads also depends on how busy the Internet access lines are. In the early evening, when Americans sit glued to their PC screens, images come in much more slowly than they do in non-prime time. The image is also affected by the resolution and size of the receiving screen. Some of these variable factors affect the way a film is seen on television, where the viewer has more control over the technological reception than the typical visitor to a gallery. But the on-line artist or exhibitor has even less control of the image than the artist on television or in a gallery.
Even from an old-fashioned "isolationist" aesthetic perspective (which considers only the perceivable properties of the work of art itself), it is difficult to determine what properties are part of the work. Should the on-line work be considered an approximation of the original? An approximation of a reproduction? (62) Or is it a new work entirely, including the translation to dots on the screen and the loading process? But an isolationist could readily argue that none of the Mapplethorpe images fits the Congressional definitions of "obscenity" or "indecency." The details are so blurred or abstracted on screen, especially in black and white, that it is difficult to reasonably construe them as sexual or improper. To the extent that "obscene" or "indecent" details are present, they are blurred so they cannot be discerned. Ironically, then, old-fashioned, much-maligned "isolationism" might be the best theoretical stance for defeating the Congressional attempt at censorship, should these provisions withstand constitutional challenge.
/p. 270 For the art theorist who believes the pristine eye is a myth, that every image is shaped by what the viewer brings to it, the case is not so simple. The cultural "baggage" that we bring to a viewing of Mapplethorpe is enormous. We recognize his name. We know about the Arts Endowment controversy. We know Senator Helms' critique. We know about Mapplethorpe's other work using whips in imaginative ways. When we first see the title, "Self-Portrait with Whip," we wonder if it is in the same X-rated genre. We know about his other photographs of muscular African-American men and wonder if the man in "Untitled" is the same model. If it is impossible not to "see" all of this in the on-line images, then perhaps they would indeed meet Congress' definitions of "obscenity" or "indecency." (63) If we take the theoretical stance that we cannot appreciate these works without knowing something about the author, his cultural context, and his intention, then we also seem to "see" things in the on-line images which might meet the Congressional definitions of "obscenity" or "indecency."
The premise of the on-line exhibit including "Thomas" is quite the opposite. It suggests that by viewing the Mapplethorpe image juxtaposed with photographs of nudes by Edward Weston from earlier decades, we will see something different, something less tinged with controversy, in the Mapplethorpe. Curator Mark Johnstone says,
Mapplethorpe's work examined next to Weston's invites the viewer to look beyond the lingering NEA controversy and see the image for its formal complexities in the tradition of modernist photography. (64)
Using this approach, the images external to Mapplethorpe force us to see something not in the narrow confines of the art object, but what we see is not likely to be considered "obscene" or "indecent."
The interpretations of the observer, the
art theorist/philosopher, the art critic, and the art historian
assume special importance in determining what might be considered
a violation of the Communications Decency Act.
(65) Indeed, future
litigation might usefully explore several such perspectives in
considering images at issue on the Internet.
We can be confident that civil libertarians
will continue to mount an aggressive challenge to the new telecommunications
indecency provisions (probably on the grounds of "vagueness,"
"overbreadth," and non-existent "community standards").
Sadly, it seems unlikely that Congress will cease and desist in
its relentless efforts to censor the work of controversial artists,
regardless of the media. The challenge is to understand the unique
characteristics of images on-line and not to assume that our understanding
of /p. 271 traditional visual images will suffice to chart
the brave new world of the Internet.
(April 19, 1996)
Return to top
(1) For overviews of the
legislation and the controversies surrounding its passage, see
"ACLU Sues to Block Enforcement of Law Restricting On-Line
'Indecency,'" The Chronicle of Higher Education, February
8, 1996; "Computer-Industry Panel to Study How to Handle
On-Line Smut," The Chronicle of Higher Education,
July 7, 1995, p. A15; Thomas J. DeLoughry, "Colleges Oppose
Proposed Ban on 'Indecent' Material on Line," The Chronicle
of Higher Education, December 15, 1995, p. A24; Thomas J.
DeLoughry, "Colleges Weigh Impact of Proposed Ban on Internet
'Indecency,'" The Chronicle of Higher Education, January
5, 1996, p. A19; Thomas J. DeLoughry, "Upset With Internet
Law," The Chronicle of Higher Education, February
16, 1996, p. A21; David L. Wilson, "Congress Passes Bill
Banning On-Line 'Indecency,'" The Chronicle of Higher
Education, February 9, 1996, p. A23; David L. Wilson, "Senate
Approves Ban an On-Line Obscenity," The Chronicle of Higher
Education, June 23, 1995, p. A19. [All of these documents
are available on-line from Academe Today Documents. http://chronicle.com]
Return to text
Robert M. O'Neil, "Free Speech on the Electronic Frontier,"
The Chronicle of Higher Education, November 3, 1995, p.
A68, Fred W. Weingarten, "Uncle Sam as Internet Nanny,"
The Chronicle of Higher Education, March 1, 1996, p. A56.
(2) 413 U.S. 15 (1973).
Return to text
at 24. Return to text
(4) 492 U.S. 115 (1989).
Return to text
(5) 438 U.S. 726 (1978).
Return to text
(6) Both cases have been
discussed extensively in the literature. See,
e.g., Eileen M. Dempsey, "Recent
Decisions," Duquesne Law Review 28.4 (Summer 1990):
785-807; John L. Huffman and Denise M. Trauth, "Obscenity,
Indecency, and the Rehnquist Court," Communications and
the Law 13.1 (March 1991): 3-23. Return to text
at 731 n. 2. Return to text
at 750 n. 28. Return to text
at 750 n. 29. Return to text
(10) 492 U.S. at 104. Return to text
at 103-4. Return to text
at 105. Return to text
at 127-8. Return to text
(14) Department of the
Interior and Related Agencies Appropriation Act of 1990 (Pub.L.
101-121, Title III, Sec. 304(a), 103 Stat. 741). Return to text
(15) Bella Lewitsky Dance Foundation v. Frohnmayer,
754 F.Supp. 774, 776 (C.D.Cal. 1991). Return to text
(16) 754 F.Supp. at 774.
Return to text
(17) 754 F.Supp. at 782.
Return to text
(18) The omission of the
Miller exception from the Telecommunications Act has been the
source of much criticism. Thomas J. DeLoughry, "ACLU Sues
to Block Enforcement of Law Restricting On-Line 'Indecency,'"
Academe Today: Today's News,
on-line service, The Chronicle of Higher Education, February
8, 1996. Return to text
(19) 413 U.S. at 24. Return to text
note 4. Return to text
(21) It should be noted
that there is no discussion of such an intent in the legislative
history. The limitation to "depictions" could have been
inadvertent. Return to text
(22) Congress added a definition
for "obscene" in 1990: "with respect to a project,
production, /p. 272 workshop, or program that (1) the average
person, applying contemporary community standards, would find
that such project, production, workshop, or program, when taken
as a whole, appeals to the prurient interest; (2) such project,
production, workshop, or program depicts or describes sexual conduct
in a patently offensive way; and (3) such project, production,
workshop, or program, when taken as a whole, lacks serious literary,
artistic, political, or scientific value." Pub.L., Title
III, Sec. 318 [Title I, Sec.102], Nov. 5, 1990, 104 Stat. 1960.
Codified at 20 U.S.C. Sec. 952(l).
Return to text
(23) 754 F.Supp. at 782.
Return to text
(24) 1990 amendments. Pub.L.
101-512, Sec. 103(b), 104 Stat. 1963, codified at 20 U.S.C. Sec. 954(d).
Return to text
(25) 795 F.Supp. 1457
(C.D. Cal. 1992). Return to text
(26) 795 F.Supp. at 1471.
Return to text
(27) The court's discussion
of "decency" does not mention the telecommunications
cases at all. Id.
at 1471-2. At the end of the decision, in summarizing its conclusions
about "decency," the court cites two of the most discussed
and influential recent decisions of the Supreme Court on telecommunications,
that "indecent" (though not "obscene") speech
is protected by the First Amendment.
Sable Communications of California, Inc. v. FCC, 492 U.S.
115 (1989); FCC v. Pacifica Foundation,
438 U.S. 726 (1978). See 795 F.Supp.. at 1476. Return to text
(28) Telecommunications Act of 1996, passed by Congress on January 31, 1996. The Act includes the Communications Decency Act of 1996. [published Academe Today Documents, The Chronicle of Higher Education, February 8, 1996].
The new statute has received extensive news
coverage, e.g., Edmund L. Andrews, "Telecommunications
Bill Signed, And New Round of Battles Starts," The New
York Times, February 9, 1996, p. A1, C16; David L. Wilson,
"Congress Passes Bill Banning On-Line 'Indecency,'"
The Chronicle of Higher Education, February 9, 1996, p.
A23. Return to text
(29) The U.S. Supreme Court
protected the private possession of obscene material in Stanley
v. Georgia, 394 U.S. 557 (1969).
Return to text
(30) Section 502, "OBSCENE
OR HARASSING USE OF TELECOMMUNICATIONS FACILITIES UNDER THE COMMUNICATIONS
ACT OF 1934," is codified at 47 U.S.C. 223.
Section 507 is "CLARIFICATION OF CURRENT LAWS REGARDING COMMUNICATION
OF OBSCENE MATERIALS THROUGH THE USE OF COMPUTERS." Section
509 provides "ONLINE FAMILY EMPOWERMENT." Return to text
(31) American Civil Liberties Union v. Janet Reno (No. 96-963)
(E.D.Pa., February 15, 1996) [published Academe Today Documents,
The Chronicle of Higher Education, February 16, 1996]; Thomas
J. DeLoughry and David L. Wilson, "Judge Blocks Enforcement
of One Internet Restriction, but Not Another," Academe
Today: News Update, on-line service, The Chronicle of Higher
Education, February 16, 1996; Amy Harmon, "Judge Blocks
Government's Enforcement of Internet Ban," Los Angeles
Times, February 16, 1996, pp. D1, D5; Peter H. Lewis, "Judge
Temporarily Blocks Law that Bars Indecency on Internet,"
The New York Times, February 16, 1996, p. A1, C16; "U.S.
Says New Internet Law Should Be Upheld," Los Angeles Times,
February 15, 1996, p. D2. Return to text
(32) "Internet Regulations
on Hold," Los Angeles
Times, February 24, 1996, p.
D2; Thomas J. DeLoughry, "Agreement Brings Delay in Enforcement
of Internet-indecency Measures," Academe Today: Today's
News, on-line service, The Chronicle of Higher Education,
February 23, 1996; Thomas J. DeLoughry, "U.S. Will Not Prosecute
for 'Offensive' Internet Material," The Chronicle of Higher
Education, March 1, 1996, p. A29. Return to text
(33) Amy Harmon, "Online
Decency Hearing Begins in Federal Court," Los
Angeles Times, March 22, 1996;
"Federal Hearing on 'Indecency' Law Focuses on Educational
Merit," Academe Today: News Update, on-line service,
The Chronicle of Higher Education, April 2, 1996; "Lawyers
Cite 4 Student Web Sites as Examples of On-Line Indecency,"
op. cit., April 15, 1996; "Court Hears Rating Proposal
in Closing Testimony on 'Indecency' Law," op. cit.,
April 16, 1996. Return to text
(34) "New Coalition
Sues Over Law Barring Indecent Internet Material," The
Chronicle /p. 273 of Higher Education,
March 8, 1996, p. A15; Mary Geraghty, "Large Coalition Files
New Lawsuit Against Internet-Indecency Law," Academe Today:
Today's News, on-line service, The Chronicle of Higher
Education, February 27, 1996; Peter H. Lewis, "On-Line
Services Join Indecency-Law Suit," New York Times,
February 26, 1996, p. C3. Return to text
(35) Thomas J. DeLoughry,
"Upset With Internet Law," The
Chronicle of Higher Education,
February 16, 1996, pp. A21, A26; Jeff Young, "Law Students
Protest Internet-Indecency Law With Silent Fervor," Academe
Today: Today's News, on-line service, The Chronicle of
Higher Education, March 15, 1996; "Internet: In Protest,"
Newsweek, February 19, 1996, p. 12. Return to text
(36) "Fixing Communications
Law" (editorial), New
York Times, February 9, 1996,
p. A14; "It's Almost Indecent How Some Bills Are Written,"
(editorial), Los Angeles Times, February 20, 1996, p. B6.
Return to text
(37) Patrick Leahy
(D-Vt) introduced S. 1567 on February 9, 1996, to repeal the provisions
"Relating to obscene and harassing use of telecommunications
facilities made by the Communications Decency Act." Senator
Leahy has also introduced a bill (S. 714, April 7, 1995) "calling
for a study by the Department of Justice . . . on how we can empower
parents and users of interactive telecommunications systems, such
as the Internet, to control the material transmitted to them over
those systems. We must find ways to do this that do not invite
invasions of privacy, lead to censorship of private online communications,
and undercut important constitutional protections." Statement
of Senator Leahy On Introduction of the Child Protection, User
Empowerment, and Free Expression In Interactive Media Study Bill.
Return to text
Act of 1996, Title V, Subtitle A, Sec. 502, amending 47 U.S.C. 223. Return to text
(39) This image "shows
a plastic figuring of Michelangelo's statue of the Madonna and
Jesus submerged in cow's urine and blood." The photograph
was purchased with private funds in 1993 by the Visual Arts Gallery
at the University of Alabama despite an outcry by governmental
officials. The image can be seen on the World Wide Web: http://fileroom.aaup.uic.edu/FileRoom/documents/Cases/203serrano.html
Return to text
(40) When artist David
Wojnarowicz' work was used by conservative fund-raisers to lobby
against the NEA, the artist sued for copyright infringement, defamation,
and violations of the Lanham Act and the New York Artists' Authorship
Rights Act. He won only on the last claim, but demonstrated that
the law is about more than banning "obscenity." Wojnarowicz v. American Family Association,
745 F.Supp. 130 (S.D.N.Y. 1990). Return to text
(41) Sec. 223
(1)(a)(1)(B). Return to text
(42) Sec. 223
(d)(1)(B). Return to text
Sec. 509, "Online Family Empowerment," of the new Telecommunications
Act; James Bates, "Forming a TV Ratings System Presents Some
Huge Problems," Los Angeles Times, February 16, 1996,
pp. D1, D4; Mark Landler, "TV Turns to an Era of Self-control,"
The New York Times, March 17, 1996, pp. H1, H38. Return to text
Daniel Akst, "New Service Springs From Law Targeting the
Net's Seedier Side," Los Angeles Times, March 25,
1996, pp. D1, D10; Peter H. Lewis, "On-Line Service Ending
Its Ban of Sexual Materials on Internet," The New York
Times, February 14, 1996, p. A1; "Microsoft Backs Rating
System For the Internet," The New York Times, March
1, 1996, pp. C1, C2; Steve Lohr, "Plan to Block Censorship
On Internet: Pre-emptory Effort At Self-Policing," The
New York Times, March 13, 1996, p. C3; "Computer-Industry
Panel to Study How to Handle On-Line Smut," The Chronicle
of Higher Education, July 7, 1995, p. A15. Return to text
(45) Through the hypertext
links on Web sites, users can quickly access an extraordinary
number of sites. As only one of numerous examples, the World Wide
Arts Resources site (http://wwar.com/)
provides links to over 7000 resources in the arts, including museums,
galleries, exhibitions, and Web sites from 5,000 artists registered
at the WWAR. Return to text
lawyers for the ACLU are reported
to have said that Congress should have included /p. 274
this Miller exemption explicitly, if Congress genuinely
wanted to protect artistic and educational material. "Upset
With Internet Law," supra n. 35, p. A21. Return to text
"National Endowment for the Arts," supra. Return to text
(48) The issue of Internet
access as a government subsidy was raised in a controversy at
the University of Massachusetts. A graduate student had posted
neo-Nazi materials on his Web site which had been banned by a
German Internet provider. the Chair of the student's department
said, "While the ideals of guaranteed free speech are of
high value indeed, they do not always include using public funds
to promote political programs." Jeffrey R. Young, "U.S.
Campuses Debate German Censorship of Nazi Materials on Internet,"
The Chronicle of Higher Education,
February 16, 1996, p. A26. Return to text
American Civil Liberties Union v. Janet Reno (No. 96-963)
(E.D.Pa., February 15, 1996) (decision, temporary restraining
order); Complaint, American Civil Liberties Union v. Janet Reno
(February 8, 1996); Plaintiff's Brief (February 8, 1996); Defendant's
Brief (February 14, 1996). For on-line copies of documents related
to the case, see the ACLU Web site.
Return to text
(50) Several writers have
noted the unusual mix of media in the Internet. David S. Bennahum
urges that "we start treating these forms of communication
[e-mail, web, etc.] differently even though they all exist on
the Internet." "The Internet's Private Side," The
New York Times, March 2, 1996,
p. A19. Robert O'Neill has questioned whether courts should consider
first amendment issues using traditional principles developed
for print material. "Free Speech in the Electronic Frontier,"
Chronicle of Higher Education, November 3, 1995, p. A68.
Randolph Stuart Sergent has cautioned that much of the existing
telecommunications first amendment law developed in response to
commercial exploitation of the media, while much of the material
on the Internet is put on-line by people with no financial interest
or incentive. "Sex, Candor, and Computers: Obscenity and
Indecency on the Electronic Frontier," Journal of Law
& Politics, 10 (1994): 703-738. Noted constitutional scholar
Laurence H. Tribe urges that the central principle of the developing
law for cyberspace should be that the Constitution "protects
people, not places." "The Constitution in Cyberspace,"
Keynote Address at the First Conference on Computers, Freedom
and Privacy, 1991 (available on-line: http://www.eff.org/pub/Legal/cyber_constitution.paper)
Return to text
for Community Media v. FCC, 56
F.3d 105 (D.C.Cir. 1995) (argued February 21, 1996, before the
Supreme Court) and Denver Area Consortium v. Federal Communications
Commission (No. 95-124). Linda Greenhouse, "Court Wrestles
with TV Indecency Issue," New York Times, February
22, 1996, p. A10. Return to text
(52) The requirement of
the so-called "V-chip" to further regulate the access
of minors to the airwaves suggests that this restriction on access
has been difficult to maintain, at least in the opinion of Congress.
See Sec. 509, "Online Family
Empowerment," of the new Telecommunications Act. Return to text
(53) David S. Bennahum
noted that explicitly sexual material is "just an accidental
mouse click away" for a Web browser who clicks a vague hyperlink
without knowing where it will take him. "The Internet's Private
Side," The New York Times,
March 2, 1996, p. A19. Return to text
(54) I have been able to
find only one on-line exhibit of the infamous "NEA Four"
(Karen Finley, John Fleck, Holly Hughes, and Tim Miller), images
that are rather tame, considering their notoriety in the press.
This site includes two photographs of clothed women. See
http://fileroom.aaup.uic.edu/FileRoom/documents/Cases/338neafour.html Return to text
(55) This was located through
the Web site for World Wide Arts Resources (http://wwar.com/).
After connecting with the site, link to "Artist index"
and look up the listings for "M," where the two Mapplethorpe
images are listed. Return to text
(56) The original is a
Gelatin silver print, 16" x 20", lent by the Estate
of Robert Mapplethorpe; courtesy of the Robert Miller Gallery.
Return to text
(57) The gallery can be
reached through the WWAR site via Artists Listings. Alternatively,
it can be reached directly through the Web page for the "Self"
The Web address for the Mapplethorpe image alone is: http://www.uampfa.berkeley.edu/exhibits/idl/29.gif Return to text
(58) The image can be reached through the WWAR site, via Artists Listings. The image itself is a graphics Web page with a gopher address: gopher://gopher.unt.edu:70/g9/dfw/dma/galleries/contemporary/1287_004
Although this image was on-line in February
1996, attempts to reach it in April 1996 produced a message that
the image is not currently available. No explanation was given
as to whether this was due to removal of the image or temporary
technical problems with the server. Return to text
(59) The Web address for the Mapplethorpe page is: http://fileroom.aaup.uic.edu/FileRoom/documents/Cases/337mapplethorpe.html
To reach the home page of the File Room:
Return to text
(60) The Web address for the image is:
http://www.cmp.ucr.edu/exhibitions/w_m/wm2.html Return to text
(61) The introduction to the exhibit, "The Garden of Earthly Delights" can be found at:
http://www.cmp.ucr.edu/exhibitions/w_m/wm1.html Return to text
(62) Some have suggested that the images we see electronically in CD-ROM art galleries are not even like reproductions in a book, let alone the original art. In reviewing the CD-ROM of the collection of the National Gallery of London, art critic Jed Perl notes the distance of the on-screen images from the originals:
When a painting is reproduced in a book the painter's pigment has been traded for the printer's ink. On the computer screen there's no pigment, only light, so you might say that the CD-ROM is one step further removed from the museum; it's an abstraction of a reduction. This is not inherently a bad thing, and in many respects it amounts to a new way of doing an old thing, which is thinking about paintings while not in the presence of paintings. . . . A reproduction is an interpretation, and the most technologically savvy interpretation is not necessarily the best. Jed Perl, "Pieces of the Frame," New York Times Book Review, February 11, 1996, p. 16.
His comments about the on-screen image produced
by a CD-ROM seem equally applicable to the on-line image at a
Web site. Return to text
(63) News reports claim
that opponents of Steve Forbes attacked him for owning a painting
by Mapplethorpe, even though it was reportedly a landscape. Could
these politically conservative observers be constructing a narrative
of the landscape from their own personal knowledge of Mapplethorpe,
which changes what they think they would "see" in the
painting? Howard Fineman, "The GOP's Sour Season," Newsweek,
February 19, 1996, pp. 32-33. Return to text
(64) "The Garden of Earthly Delights," on-line exhibit, University of California, Riverside California Museum of Photography, http://www.cmp.ucr.edu/exhibitions/w_m/wm2.html Return to text
(65) For an excellent example
of how a skilled art educator and art critic can use controversial
art for worthwhile educational purposes, see
Terry Barrett and Sharon Rab, "Twelve High School Students,
a Teacher, a Professor and Robert Mapplethorpe's Photographs:
Exploring Cultural Difference through Controversial Art,"
Journal of Multicultural and Cross-cultural Research in Art
Education 8:1 (Fall 1990): 4-17. Return to text
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