Obscenity and Art

Provoking a Response
In the 1971 case of Cohen v. California, United states Supreme Court Justice Marshall Harlan II summarized exactly how subjective “artistic merit” can be when he stated, “one man’s vulgarity is another’s lyric” and that statement remains true to this day.

Art is intended to be evocative, and given that works of art so often succeed in evoking such diverse and passionate responses it is not surprising at all that artistic expression is often the target of so many censorship efforts. Post-modern art, for example, derives its value from defying past standards and expanding the traditional boundaries of art, often by deliberately attempting to shock and offend the audience.

Even here at deviantART, a community founded on the concept of being a gathering place for all sorts of creative persons and artistic visions, there is a certain level of censorship. deviantART does restrict the submission of certain types of content – some for critical legal reasons and some for what could be called completely arbitrary reasons which we have made because of our concerns about the health and direction of the community.

Because the concept of being a community which is intended to welcome all sorts of creative endeavors while at the same time denying access to certain content and themes are so at odds with each other we make every attempt to keep our restrictions to the barest minimum. If it appears at times that we appear to make exceptions for certain types of works it is because we are trying to find more reasons to keep a work than to remove a work; a fact which results in probably too many of you in the community assuming in error that our staff is poorly trained, biased, or lazy.

We make every attempt to allow works which are evocative and this sometimes means that a work will be erotic and sexual enough, or political enough, or religious enough, to offend someone with more delicate sensibilities. This is the main reason our mature content tagging system exists and why we’ve made improvements to it over the years to help artists warn their audience that a certain work might be offensive to them.


The Good, the Bad, and the Ugly
The type of content which generates the most concern and the most complaints tends to be photographic nude works which are considered inartistic by the people doing the complaining, some even going as far as to quote the three standards for determining obscenity set by the United States Supreme Court in 1973, one of which states that an obscene work “taken as whole, lacks serious literary, political, or scientific value” as justification for asking for the removal of the deviations they find offensive.

Unfortunately the determination of “serious literary, political, or scientific value” is not as clear cut and easy as one could assume. As I’ve stated elsewhere, “artistic value” and “obscenity” varies greatly depending on your cultural and family upbringing as well as your personal viewpoints. The question of whose standards to use is difficult at best which is why official policy on the matter is written to address quantitative facts about a work rather than the qualities of the work.

There was a case which demonstrates exactly how hazy the term “value” can be when applied to art which I’d like to relate to the readers here for greater clarity.

In 1969, United States Customs agents in Baltimore Maryland seized ten paintings and drawings which had been shipped in from Europe for an exhibition in the United States. The works were a portion of a larger collection of erotic artworks which had been previously shown and displayed in museums in Scandinavia. Among the ten works seized were works by Hans Bellmer, George Grosz, Karel Appel, Melle, Cesare Peverelli, and five other works by artists whose identities were unknown.

The Customs agents seized the works under the authority of a federal law which prohibited the importation of obscene materials The ten works seized included themes which were explicit in their showing of male and female sex organs, sometimes in conjunction or approaching conjunction and the agents judged that the various themes were sexual and obscene enough to stop their entry into the United States.

The issue involving these works eventually received a legal ruling, and although the case was decided before Miller v. California (the ruling which determined the obscenity standards still used today) the court applied a similar three-part standard to determine whether or not the works were to be ruled as obscene. Despite the clearly sexual content of the works, both the trial court and the Fourth Circuit Court of Appeals found that the works all had artistic value and therefore did not meet the third legal criterion of obscenity.

Now I mention this particular case not because we use it to justify keeping certain works but because it demonstrates how individual judgments concerning “values” can reach completely different conclusions and it is because of  these differences in personal judgment that deviantART policies rely more upon empirical observations about a work rather than personal opinions concerning artistic value and intent – by relying more upon the former we are able to ensure greater consistency in the actions taken, or not taken, by our staff.

While members of our community are certainly free to call something obscene because, “I know it when I see it” (Supreme Court Justice Potter Stewart, 1964), our staff tries to avoid involving such personal and ultimately subjective observations in our policy decisions, even though they may completely agree with you on a personal level.

When you think about it in a broader sense when we talk about “artistic value” we must also consider that not all artistic works are intended to be aesthetic or even fully interpretable which in turn can spark an entirely different conversation about exactly what “art” is supposed to be in the first place – who gets to make that decision?