On the Friday in 1990 when the collection of 175 photographs by Robert Mapplethorpe called “The Perfect Moment,” previewed at the Contemporary Arts Center in Cincinnati, 8,000 people showed up to see them.
The CAC was seven blocks from my law office. On the Saturday morning that the exhibit opened to the public we heard that the Hamilton County prosecutor had empaneled a grand jury to get an indictment by noon, so we sent out scouts to determine when the police were going to arrest the CAC’s director, Dennis Barrie. But Cincinnati is a small town, and our scouts told us that the cops had stopped for lunch along the way.
Eventually Dennis was charged with obscenity for five explicit photos depicting gay S&M sex and one count of exhibiting two photos of nude children. If convicted, he could have spent two years in jail and paid $2,000 in fines. The CAC would have had to pay $10,000 in fines. The psychic cost for countless artists and museums as they self-censored to avoid obscenity charges also would have been high.
I spent the next six months working on Dennis’s defense; ultimately a jury judged him not guilty that October. The trial demonstrated that the rights to freedom of expression designated in the Constitution must be fought for — and that they sometimes hinge on narrow legal distinctions.
I had been working on First Amendment cases since the 1970s. That was a decade of changes in attitudes toward art with sexual content. The Kinsey report’s findings had been accepted by the culture by then, and magazines and filmmaking reflected the sexual revolution. Then, in the 1980s, VHS and Betamax players produced an explosion of pornographic films people could watch in the privacy of their homes instead of theaters. By the late ’80s, sexual content was a bigger part of our culture and our lives.
The controversy over Mapplethorpe’s work is often attributed to his homosexual subject matter, but I wondered if the trouble in Cincinnati wasn’t more about race. There were photographs of black men and white women, after all, and our city is on the edge of the South (Kentucky is just across the river) and over 4o percent of its citizens are African American. We had integrated during the ‘70s, but were backsliding into segregated neighborhoods by the 1990s, with whites moving into small towns and villages in the suburbs.
To me, it was mind-boggling that prosecutors would go after the CAC, a vital and legitimate institution that had been hosting exhibitions since the 1940s. Before trial, we were optimistic that the case would be dismissed, despite the climate of hysteria around Mapplethorpe, because it should have been clear that an organization like the CAC would never do something without a serious artistic purpose. After all, the exhibit was a retrospective of years of work, and it had shown elsewhere in the country. A museum, we thought, would be protected from these charges. However, the presiding judge said the CAC was not a museum but a gallery because it had no permanent collection. We were boggled by this.
So we had to go to a jury trial. Again, we were optimistic. I was familiar with Miller vs. California, a 1973 Supreme Court case that said that obscenity had to be proven by three so-called prongs. First prong: would contemporary community standards say that the work as a whole had only prurient interest? Second prong: did the work show sexual acts in a patently offensive manner? Third prong: did the work, taken as a whole, lack serious artistic value? I had worked on cases for pornographic movies like “The Devil in Miss Jones,” dealing with the first and third prong of the Court’s test — the movie had a plot, and while it might be considered offensive, it was not morbidly preoccupied with sex. When it comes to what is being depicted, context matters.
A big challenge in the Mapplethorpe case was making sure the jury understood the context of the photographs. It was equally important that I would comfortably talk about sexual practices with a more clinical vocabulary, so the jury understood them in a legal context. But we were at a disadvantage because the jury couldn’t see the actual exhibit photos; only the photos and video taken by the police of the exhibit were shown. The exhibit would move to Boston by the time of the trial, so we had our expert witnesses view it at the CAC. That way, they could describe exactly what they saw, and explain presentation of the photos as art.
Arguing at trial that the photos had artistic merit, we geared the defense to the idea that art didn’t have to be pretty. It can be challenging: you can see “Who’s Afraid of Virginia Woolf” and leave depressed. But that’s not a problem with the performance — the artistic value isn’t determined by what the audience feels. Images of the Holocaust are vital to our understanding of history. We don’t like those images, but they tell an important story.
It was a winning argument. The jury deliberated for two hours and acquitted Dennis Berrie and the CAC.
The jury validated this approach to art and their verdict sent a message that artists and museums can tell us things that we often don’t or can’t talk about easily. The way times and norms change was part of what Mapplethorpe’s exhibit explored. You could see how he evolved from seeking attention and photographing himself toward interior still lives and portraits. Art reflects the period in which it’s created and we don’t always come to grips with what happened in that time until decades later. It’s good to see that Mapplethorpe’s work is being recognized today as the artistic accomplishment — and advance — that it was and is.
In retrospect, we made another smart decision: The prosecutor had offered to drop charges on the five photos if Dennis would plead guilty to two misdemeanors of showing nude children. We said no. Looking back, the repercussions of taking a plea deal for disseminating photos of a minor in a state of nudity could have been a death blow for the CAC — and disastrous for Dennis. Today such a crime would be a felony and could land him on a sexual offender registry.
For me, winning the case was a great moment. But the Mapplethorpe exhibit divided the arts community in Cincinnati. Everybody was afraid. The CAC withdrew from the local arts association so they wouldn’t tarnish the symphony. By winning the case on grounds that the exhibit was art, that it was important for humanity, the CAC’s reputation was bolstered. In years since, the CAC has raised money for a beautiful new building and a collection.
But that case (and others from that time) has also scared museums and artists who don’t have the resources to fight. There’s a lot of self-censorship by museums, which are especially leery of showing work with children. The repercussions of offering work that could be labeled obscene remain serious. Museums’ ability to show what they think is important is still somewhat dependent upon who is running the Justice Department.
Artists who are considered on the edge are still targets. I recently defended a young photographer who was doing a series on birth and death. He got permission to take photos at the morgue, but foolishly sent them out for developing. He was reported to police and prosecuted for abuse of a corpse. At the end of his trial, the prosecutor told the jury, “Mr. Sirkin’s defense of art is bullshit. Art is only what we’d take home and hang on the wall.” The artist spent a year in prison.
This article was written in partnership with Zócalo Public Square.