in Interviews | 01 SEP 96
Featured in
Issue 26

Age of Innocence

An interview with Amy Adler, a New York lawyer specialising in issues of free speech

in Interviews | 01 SEP 96

For the past year Amy Adler has been a fellow at Columbia University's Freedom Forum, a media-oriented think-tank, where she has focused on obscenity law, child pornography, and art. Here she discusses the nuts and bolts of the legal relationship between the law and artistic expression.

Jim Lewis: Can you begin by explaining to me what obscenity laws exist in the US?

Amy Adler: Well, the modern constitutional definition of obscenity is from a 1973 case called Miller v. California, in which the Court, after many years of arguing back and forth, finally laid out a three part test. For something to be declared obscene, a jury has to answer yes to each of three questions: Does the material appeal to prurient interest? Does it depict sexual behaviour in a patently offensive way? And third: Does the work lack serious literary, artistic, political or scientific value? The Miller test replaced an older definition of obscenity, which said that in order to be unprotected something had to be utterly lacking in socially redeeming value. Now, the work in question has to lack serious literary, artistic, political or scientific value, a standard which has the effect of protecting less speech.

What do the courts, as it stands, use to decide what counts as serious artistic value and what doesn't?

The problem is that the Supreme Court has never defined serious artistic value. It wasn't really thought through. In practice all sorts of different tests end up being used.

You could look at it in one way as, did the artist sincerely intend to create art? And some courts seem to have suggested that interpretation. Of course, that's a problem in view of post-structuralist critiques of notions of sincerity and intentionality. Another way is to ask whether the art is serious in a way which reflects the solemnity and sanctity of high art. But again, that's something which might have made sense in 1973 to a court that was looking backwards towards high modernism, but which makes little sense nowadays.

Finally, in a 1987 case called Pope v. Illinois, the Court tried to clarify the criterion by saying that a jury should decide whether or not a reasonable person would think the work had serious artistic value. Of course, that's a problem, too, because you're going to get New York art critics, dressed in black, coming into some small town to say, 'Yes, I think this woman shitting on the stage is the most important artwork of the 20th Century.' And someone on the jury's going to sit there and say, 'Look, I'm a reasonable person. But this lunatic is clearly unreasonable, and I'm going to say this lacks serious artistic value.' So that test makes the judgement of the artistic community potentially irrelevant to the determination of what is art.

And then there's the idea that the word 'serious' means, not just solemn, but good. Which suggests that the First Amendment doesn't protect bad art.

Well, it only protects 'serious' art, but that does create a problem for art that is unrecognised as such, or art that's just bad. What do you do with an artist who really is considered kind of third rate by the artistic community? I suppose people would rally and try their best to testify on his behalf.

Then again, they might not. At the very least, the art world is ambivalent about Jock Sturges [the photographer whose studio was raided by the FBI, on the grounds that he was producing child pornography].

Right. I mean, regardless of his subject matter, Jock Sturges would be an embarrassment to the artistic community. And it would be really interesting to see what happened if he were ever prosecuted as, in fact, he very nearly was. So there's the problem of art that doesn't really live up to our contemporary critical standards. And then there's the problem of art which is really about its own second rate-ness, it's lack of originality, or whatever. This test was devised for first rate art, but what about artists like Sherrie Levine, Martin Kippenberger or Mike Kelley, who make work that in some sense challenges traditional notions of artistic worth? What about Richard Prince's Spiritual America (1983) [an appropriated picture of a nude, pre-pubescent Brooke Shields]? That would make an interesting test case.

What was the deciding factor in the Mapplethorpe case?

That's the thing about juries. We don't know. Juries are a black box. We have no idea. But it's worth pointing out that in a way Mapplethorpe was an easy case, because his work looks so artistic - highly formal and elegant, it resembles everybody's idea of what art photography should look like, until you get to his subject matter.

Another, more subtle sense in which the Supreme Court decision bolsters a sort of Kantian aesthetics is in the very implication that art is special, and should therefore be protected in cases in which ordinary speech might not. It's not clear to me that to say that something is art should imply that it occupies a privileged moral position, and that it should therefore be immune from the down and dirty business of the rest of our lives. I mean, so what if a work has serious artistic value?

This is precisely the point of the feminist anti-pornography movement, and the Supreme Court's rulings against child pornography. All of a sudden the question of whether or not it's art - the centrepiece of adult obscenity law - is seen as irrelevant. Catherine MacKinnon has said, if a woman is harmed, who cares if the work has serious artistic value? And now you have Justice O'Connor, in the Supreme Court child pornography cases, arguing that it doesn't really matter to the 12 year-old child who's masturbating in that picture whether we think it's art or not. Why does it matter that it's art? And the court hasn't come up with a good answer. As a result, there's never been an exception for serious artistic value in the child porn cases. And that pushes people to think, why do we protect art under the First Amendment? What makes art special? To a lot of people the First Amendment is just about speech which is political. It's about democracy: what does beauty matter? I think obscenity law is dangerous for artists, but child pornography is a disaster. The Supreme Court has never drawn an exception for serious artistic value in the child porn cases. But then, it's never been raised as a defence in the cases they've adjudicated. We don't really know for sure what they would say if it were.

I'd argue from the same premise as MacKinnon and O'Connor, but to the opposite conclusion. They're right in thinking that art isn't special, that artists aren't special, but wrong in thinking that the answer then is to be free to censor art. One should conclude, instead, that all expression should be protected.

I think that's perhaps the only way we could offer blanket protection. But then we have to figure out how to prohibit child pornography.

We should probably make it clear here that we both firmly believe that child pornography is a bad thing. We don't have any problem with prohibiting it.


Now, explain to me what, according to the courts, child pornography is. For example, does the work have to be intended to arouse, or is it the mere representation of children in what could be taken to be an erotic context?

Well, that's the thing. The courts have extremely vague definitions of what constitutes sexual conduct. The most dangerous case is a case called Knox v. United States, which was decided not by the Supreme Court but by the 3rd Circuit Court of Appeals. That court said that something can be child pornography even if the child is clothed, so long as there's a graphic focus on the genitals, or a lewd exhibition of the genitals. It's not just the case where the child's masturbating, or two children are having sex. The Supreme Court has said that its OK to ban something if it involves a lascivious display of the genitalia. And who knows what that means? It's unclear whether lascivious refers to the intent of the viewer or the intent of the photographer, or the intent of the distributor. I've seen Sears children's underwear ads posted on the Internet in the paedophilia discussion groups: Is that child pornography? I've also seen a Sally Mann picture in that group.

Bear in mind also that most laws make no distinction between 16 year-olds and 6 year-olds. So the threatened prosecution of, for example, Calvin Klein, ends up looking a little ridiculous to many people. Much the same, I think, is true of Larry Clark. When most people think of kiddie porn, they think of pre-pubescents, not 16 year-old boys.

Is there a distinction made between pictures of boys and pictures of girls?

Well, certainly there's no de jure distinction. As far as I know, there's no de facto distinction either.

And is a distinction made between photos and drawings or novels?

Absolutely. What's really interesting about the child pornography laws is that they're premised solely on the notion of harm to the child depicted. If the work in question is fictional, then it would be judged under obscenity law standards. It's only when a real child is involved that this area of the law becomes the rubric under which you judge the work.

So it's basically a child abuse problem, and not an obscenity problem at all.

Right. It's important to remember that there are other laws against the sexual abuse, exploitation, and solicitation of minors that already criminalise a lot of the acts depicted in child pornography. Going after the images themselves is a secondary issue. And the Court has evaded the question of whether representation is harmful beyond the damage it might do to the child who's used in the picture. The closest they've got to claiming that it's inherently dangerous is to say that child molesters use these pictures to break down their victims' inhibitions.

It's interesting, too, that while in most states you can have sex when you're 16, or in some cases younger, federal law prohibits you from being photographed having sex until you're 18. So the abuse isn't necessarily straightforward sexual abuse; it's something more complicated. It's the image that's forbidden; and as far as I can tell, it's the only one. Child pornography is the one photographic representation in our society which is completely beyond the pale, morally, legally and aesthetically.

It's true. I mean, all images are subject to obscenity law, but child pornography is subject to much stricter laws. And that's what makes child pornography so important to consider. Because it is so taboo, and people are so worked up about it, it's really an inroad against First Amendment protection that can be extended beyond children. We're seeing this now with the attempts to censor the Internet, for example, where all politicians need to do is raise the spectre of child porn, or children's access to porn, and everyone's ready to endorse an unconstitutional law.

The question is, how do you steer between people's right to look at what they want to look at, and their right to make whatever image they want, and a perfectly correct and reasonable need to protect children from sexual exploitation?

I agree with you, and again that's what makes this area so compelling. In the area of adult obscenity, we've become inured to the notion of harm. I think most people on the left, other than some feminists, just sort of snicker at the very idea of obscenity. But I think in child pornography we suddenly say, 'There is a competing value. Free speech is not the be-all and end-all. It's very clear why we need to protect children.' And the question of where to draw the line becomes very difficult. Child pornography gets people upset. And it ought to.

All our examples, whether of child pornography or mere obscenity, seem to be photographic. Has there ever been a prosecution of a painting?

Not since the Miller test, and I don't think ever.

So why is photography especially vulnerable to prosecution?

Well, first of all, it's become an unwritten maxim of obscenity law in the last 10 or 20 years that generally only visual stuff is prosecuted, and, for example, literary works aren't. You won't find this distinction made in any of the case law; it just happens to be what prosecutors go after. I think the reason that photography in particular is so vulnerable derives from a few aspects of the medium. One is the way that people often confuse photography with reality. It looks real. In fact, it gets much of its power from looking real. But that doesn't always mean it is real. Sally Mann's work often exploits this quality. For example, there's a photograph of her daughter, called Damaged Child, where it looks as if the girl's been beaten, but in fact she's only got insect bites.

Another sense in which photography is vulnerable comes from the perception that it's a lesser art form. Anyone can do it. So a photographer might not immediately seem to be as serious an artist as a painter. But more than any of this, I think the focus on photography is the result of our basic anxieties about the image, anxieties that seem to be quite deep-rooted. Maybe it just has to do with the proliferation of the image; but I think there might also be an elitist explanation of this - traditionally images are the books of the illiterate, you know, just as stained glass windows told the stories of the Bible.

So people don't prosecute books these days because books are only read by well-educated, upper-class people who are considered capable of taking care of themselves. And God knows the poor don't buy paintings, or even look at them much. But photographs are available to the masses, who can be set off by them.

There is a history of suppressing and controlling what people see, based on elitist fears of mass access. Censorship is often motivated by class anxiety, and the fear that the lower classes will be out of control if they have access to the same things as the upper classes. This is an argument that I think the Left could use to counter the Right's accusations of cultural elitism. I think this is a real problem; I think elitism is the unanswered charge in the culture war. The terrible thing about this war is that a good portion of the arts community is just shouting 'Free speech! Free speech!' and not really looking at what the issues are. The debate has been conducted on an incredibly juvenile level, without much intellectual sophistication, and with a great deal of indignation and self-righteousness, which I just think does a disservice to the issue.

Yeah, the art world has been very self-congratulatory and smug, and naive. Any more subtle or complex discussion about what exactly images mean within the context of a society has gone out the window.

In the meantime, the Right has managed to implant this notion of the cultural elite in people's minds.

I think one reason for this is that the art and intellectual communities in the States are almost completely insensitive to issues of class. It's not surprising that they've been labelled the cultural elite. They are one.

It's true. But one argument that I haven't seen is that sure, there may be elitism in the arts, but there's also a long-standing tradition of elitism in censorship. First of all, anyone who censors is putting himself in a position of condescension. He's saying, oh, I can look at this image in a cool dispassionate way, but I've got to protect those people who are weaker than me, because it might drive them crazy, or incite them to rape or violence.

You've been around the country and you've given talks in which you've showed these pictures to various audiences. What kind of reaction did you get?

The most startling response I had was at a talk that I gave at the University of Pennsylvania last spring, in a forum on Sexual Images of the Child. I showed a lot of pictures of sexualised children, from advertising, from Sally Mann, and so on. And I truly felt at one point that the audience was going to stand up and stone me to death. And what was odd was that I didn't really feel that my points were that radical: I was just raising a lot of questions about interpretation. I certainly wasn't saying that child porn should all be legal. But people just wanted to kill me. One woman stood up after I'd spoken and said, 'Well, enough about theory, let me tell you about reality. I'm fighting a war every day and I'm up to my neck in blood helping abused children. So fuck you and your theory.' And the only thing I can say to that is, this is not just theory, this is also reality, because as a result of these laws, parents are being taken away from their children. That's what happened in the New Jersey case, for example, with a man who was a student at the International Center for Photography. He took pictures of his five year-old daughter, naked on a glass table, and as a result was taken away from his family for two months. Ultimately a psychiatrist testified that the worst harm done to the child was having her father taken away from her, and being subjected to endless inquisition by the state. And people are being put in jail. Jock Sturges' studio was ransacked. And so this is reality, too. When you want to censor things you better know exactly what the harm of censorship is. The child issue is really the most volatile issue, as perhaps it ought to be. But it's become one that a lot of people don't want to touch, including the ACLU, which is keeping very quiet on it. And that's one reason why I want to get involved. It's so painful that no one wants to deal with it, and as a result it might lead to serious compromises in other areas of free speech.

So what is to be done?

Well, in order for law to function we do have to make decisions about what we'll allow and what we won't, and why. What's interesting, though, is that often judges present the law, and people conceive of the law as if it were a majestic self-evident truth. There's a debate in the law, just as there is in art or other disciplines. Some people would argue that everything is political, but most people still think that there are such things as neutral principles; they think legal debate is objective and unaffected by culture. And most people active in the child pornography debate deny the complicity of the law in our cultural fetishisation of the child. We say we're horrified by child pornography, but we're also obsessed with child sexuality. So I think you have to read the child pornography cases in the context of our adulation of Courtney Love and her kinderwhore look, and Kate Moss, and all these high-profile child sexual abuse cases, and the recovered memory movement, and our weird attitude towards sex education, and all those things.

You have to look at those all together and understand that the Court is just another cultural institution: it's not just policing, but also producing desire; by drawing up these extremely harsh laws, they're adding a taboo thrill, and escalating the problem. We pay for our guilty pleasure with an increasingly oppressive legal scheme. We want it and hate it all at once. And so in a sense it might be that our increasingly oppressive legal scheme is actually making the sexualised child even more attractive. It's hard to say. The question is, does taboo incite desire?

It's as if, beyond a certain point, the more you try to protect children by insisting on their innocence, the more you endanger them by tempting some people to despoil and defile them. So do you think there's a better legal solution to all of this than the one we have?

I think as long as we have obscenity laws there's inevitably going to be some artistic expression that's suppressed. Because a lot of art is certainly transgressive, and it's just fundamentally incompatible with a rule-bound system like law. As soon as we draw a line, an artist is going to violate it. Because that's what artists do. So there will always be some pocket of artistic speech that's going to be vulnerable as long as we try to outlaw pornography.