Growing up in Boston, my schoolmates and I were both embarrassed and amused when we'd hear a radio comic talk about a book or a play being banned in Boston.
We were never sure why the Old Howard burlesque theater -- which we sometimes skipped Boston Latin School to attend -- was not also closed down. My theory was that some of the city fathers couldn't bear doing without Georgia Southern and some of the other elegant ecdysiasts who starred there.
One thing that never happened during the purging years in Boston was a police invasion of a museum or an art gallery. We had a number of such places, and in several there were paintings or sculptures that might have scandalized some of the members of neighborhood whist clubs. But not even Boston's most earnest spiritual descendants of Anthony Comstock and the later Watch and Ward Society had -- as happened in Cincinnati last April -- removed visitors from an art center exhibition in order to examine it for evidence in a court case. At issue were works of Robert Mapplethorpe.
Even more of a historic event was the handing down of criminal indictments against the Contemporary Arts Center and its director, Dennis Barrie. They are charged with pandering obscenity and with the illegal use of minors -- although the photographs of both minors in the exhibition were commissioned by their parents.
That Cincinnati has now eclipsed even the Boston of legend as the nation's censorship shrine is due to such ceaselessly vigilant groups as the 16,000-strong Citizens for Community Values. It worked tirelessly, if unsuccessfully, to prevent the Mapplethorpe exhibition from even being mounted. Cincinnati's law-enforcement officials, moreover, have long been quick to detect and pursue material that would sully the city.
"You have to look very hard to find a place in Cincinnati that will even sell Penthouse," says Louis Sirkin, attorney for the Contemporary Arts Center. With the city having been scoured of "adult" bookstores and X-rated cable shows, what Sirkin calls "the spiral effect" of this purifying zeal has finally reached an arts center.
At the core of the case is the three-pronged standard of determining the insidious presence of obscenity. The test was created by the Supreme Court in Miller v. California (1973) and has been incorporated into Ohio law:
1. Would the average person, applying contemporary community standards, find that the work, taken as a whole, appeals to the prurient interest? (The average juror has to start by rigorously examining his or her own prurient interest.)
2. Does the work describe or depict, in a patently offensive way, sexual practices specifically defined by the applicable state law? For instance, patently offensive descriptions of "ultimate sexual acts."
3. Does the work, taken as a whole, lack serious literary, artistic, political or scientific value?
It is the third prong that may well undermine Cincinnati's plans for punishing the Contemporary Arts Center and its director. The prospect is of distinct interest to other museum directors around the country who worry that in some localities, law-enforcement officials may be seduced by the greater prestige of arresting museum directors rather than the slippery entrepreneurs in leisure suits who run adult movie theaters and peep shows in the back of stores that stock books that never show up on The New York Times list.
In 1987 the Supreme Court refined and clarified the third prong of the Miller test in Pope v. Illinois. While "community standards" apply to the first and second prongs of the test -- and Cincinnati's would be lauded by Cotton Mather -- the juror has to apply a different standard as to whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.
Instead of applying "community standards" to that third question, the juror must use an objective national standard. As Prof. Roland Rotunda points out in his "Modern Constitutional Law," Pope stresses that "the value of a work does not vary from community to community, based on the degree of local acceptance it has won."
So, expert defense witnesses during the trial beginning Sept. 24 in Cincinnati will try to convince the jury that Mapplethorpe's photographs, exhibited in a number of recognized museums across the nation, do indeed have objective serious, artistic value.
If Cincinnati's jurors can't make the leap from nurturing local community standards to becoming citizens of the nation, then appellate judges are likely to be able to.
But there are museum directors elsewhere -- reckoning the cost of an obscenity defense -- who may well be more cautious from now on, no matter what happens in Cincinnati. They are also aware that Dennis Barrie could spend a year in prison if he losses.