Art and Obscenity

The Supreme Court defines obscenity as any material which “appeals to a prurient interest in sex, portrays sexual conduct in a patently offensive way,” and which “does not have any serious literary, artistic, political, or scientific value.” But can’t some work be both obscene and also have “serious artistic value”?

The topic of this week’s show is Art and Obscenity. Specifically, we’re thinking about where art and obscenity intersect.

So, what exactly do we mean by “obscene”? The Supreme Court defines it as any material which “appeals to a prurient interest in sex, portrays sexual conduct in a patently offensive way,” and which “does not have any serious literary, artistic, political, or scientific value.” Taken at face value, then, art—by definition—could never be obscene, and that would be the end of our discussion!

Given that the Supreme Court has also declared corporations to be people and money to be speech, we probably shouldn’t let their idiosyncratic interpretation of concepts dictate the way we talk about obscenity. So, instead of trying to define “obscene,” it might be more useful to start our discussion with an example of a work that is—or, at least, was—considered obscene.

One piece that comes to mind is Marcel Duchamp’s “Fountain,” a common variety porcelain urinal that Duchamp tried, unsuccessfully, to enter into an exhibition in New York in 1917 using the pseudonym “R. Mutt.”  In its day, Duchamp’s work caused a huge scandal, with people calling vulgar, immoral, and indecent. Some even claimed the piece had zero artistic merit.

Despite its initial reception, Duchamp is now credited as having changed modern art forever with this piece. By using a ready-made object instead of painstakingly creating the work with his own two hands, in one bold (albeit lazy!) move, Duchamp invented what we now call ‘conceptual art.’

While Duchamp’s “Fountain” might seem fairly tame to us denizens of the twenty-first century, we can understand why people were up in arms about that work back in 1917. Indeed, there’s probably still plenty who think it doesn’t deserve to be called ‘art’ at all, but those judgments may have less to do with it being obscene per se and more to do with it being conceptual.

Regardless of your feelings about Duchamp, the art world has been diligent in continuing to supply us with many new works to get upset about. Take someone like Damien Hirst, the artist who dissects huge animals and then displays them suspended in formaldehyde in glass cases. He’s the kind of figure, some would argue, that puts the ‘con’ in ‘contemporary art.’ Or there’s the controversial photographer Andres Serrano, whose most notorious work is a photo of a crucifix floating in the artist’s own urine. The name of it, “Piss Christ,” is considered too obscene to say on the radio, so John and Ken can’t even mention it by name on the air!

But consider—Impressionism was also once considered offensive for its portrayals of common people doing common activities. So, what people tend to find obscene or shocking changes over time. I bet someday the works of Hirst, Serrano, and their ilk will seem tame, maybe even quaint. But in contrast to what? What will artists of the future do to shock and offend us? Where do we go after “Piss Christ”? And how far is too far?

Perhaps that’s what the Supreme Court was groping at in its lame attempt to define what counts as “obscene.” There is a line that divides genuine art from (mere) obscenity and we need to get clear on where that is so that obscenity for its own sake is not protected by the First Amendment. However, I don’t think we can get very far without admitting a category of material that is obscene and also has serious artistic merit. It’s in this grey area that things get really interesting.  

Imagine, for example, that an artist takes very beautifully shot but graphic B&W photos of acts of bestiality. Would this cross the line from genuine art into mere obscenity? It certainly seems to fit the first two parts of the Supreme Court’s definition, though I get stuck when thinking about the third part, or whether the work has any “serious” artistic value. How would we go about deciding this question? And why would we think it is the job of lawyers and judges to decide what counts as genuine art? Who are they to decide what has serious artistic value?

Moreover, in this case I’m imagining, it seems like the law already has it covered. In most states in the U.S., for example, it’s a misdemeanor or even a felony to engage in acts of bestiality, so our fictional artist would simply be breaking laws that are already on the books without us needing any special laws just because the acts are done in the name of art.

So, let’s change the example slightly. Imagine our artist is a painter, not a photographer, and that the graphic images of bestiality were made without the use of any actual animals. Imagine further that the images are painted to look like B&W photos and they are perfectly rendered. It would be difficult to tell these images apart from images in our first example. Would you consider this art, obscenity, or a maybe bit of both? Would knowing these were paintings and not photos of actual animals make a difference in your assessment? While both examples are clear transgressions of some sort, the photorealistic paintings might only transgress our moral or cultural conventions, whereas the photos of actual animals also transgress the law. 

So, while artists don’t have any special rights that puts them above the laws that the rest of us have to follow, they do have the right, nay, some might even say, the duty to transgress conventions, to make us reconsider our values, beliefs and attitudes. In their role as subversives, iconoclasts, culture-jammers and agitators, surely artists are bound to produce work that offends, work that will be called “obscene” by their peers. If all art ever did was comfort and reassure us, it would fail in an essential task.