The First Amendment has been interpreted as protecting both verbal and nonverbal expression from censorship. This protection has been extended specifically to music, drama, film, and most forms of visual art.
In its 1968 decision U.S. v. O’Brien, the Supreme Court established a test to determine whether interference with expressive conduct is justified: namely, if there is a “substantial government interest,” if the interference would not amount “to the suppression of free expression,” and if the restriction is “no greater than is essential” to satisfy the government’s interest.
Miller v. California, the landmark 1973 case on obscenity, clarified that while art may be restricted where it violates the “contemporary community standards” for obscenity, “[t]he First Amendment protects works which, taken as a whole, have serious literary, artistic, political, or scientific value, regardless of whether the government or a majority of the people approve of the ideas these works represent.” In other words, art may be censored where it runs so far afoul of the community’s concept of decency that it is legally obscene, but may not be targeted because of any particular message that is found to be offensive.
While colleges and universities are engaged in disseminating knowledge and ideas, they also act as the cradle of new thoughts and fields of inquiry. This is true not only for the hard sciences, but also in the realm of drama, music, dance, and the visual arts. Controversy arises where works of art are so unconventional or challenging that they offend some people.
Recent years have brought confrontations over a mural of Malcolm X at San Francisco State University, art displays that were thought to be racist and/or sexist, dramatic productions of Terrence McNally’s play “Corpus Christi” (which some find to be a blasphemous depiction of Jesus), and screenings of pornographic movies at MIT.
Where offense is taken, educational institutions must weigh the concerns of those who oppose an artistic display against the artists’ right to have a forum for their expressive work. Schools have tried to address these situations in several different ways, including complete removal of the work; offering the artist a different venue in which to display the work; and providing explanations of the work in hopes of defusing the conflict.
Surprisingly, few of these cases have gone so far as a court battle, as the parties usually resolve matters themselves.
A few generalizations may be made concerning a public university’s ability to restrict artistic expression on its campus, though it must be kept in mind that the Supreme Court has never directly addressed the issue.
The deciding issue is often whether the art or performance is shown in a place that is generally considered a “public forum,” or if the school has placed certain content-based restrictions on what may be displayed. If the art is shown in a location in which the public has previously been invited to speak or present artwork, then anything that does not violate the local standards of obscenity will be protected under the First Amendment.
If the display area is not a public forum, however, some courts have held that the school may place reasonable restrictions on the subject matter of the exhibits, though not on the artist’s viewpoint. For example, they may ban art portraying athletics in general, but may not ban art that exalts only athletes of a particular race. In this way the institution retains a measure of control over its campus but is prevented from discriminating against pieces of art because of their viewpoint or, potentially, because they evoke a negative reaction from some observers.
Plays and movie showings are afforded some extra protections from censorship because they are not generally shown in broad view of passersby, but rather in closed settings for audiences that want to be there. Displays of visual art, which are sometimes in plain view of the public, are subject to different rules.
Political speech in any form is particularly protected by the First Amendment. As a result, unless a school has placed a prohibition on political expression in a certain location, art that contains any element that may be construed as a political message (such as an exhibit at the Art Institute of Chicago in which observers were encouraged to step on an American flag), will be all but immune from censorship.
Works that involve racial or sexual themes, however, may be subject to relocation or removal. In Lahme v. University of Southwestern Louisiana, a 1997 state case in which a sculpture bearing obscenities and racial epithets was placed on a college campus near an elementary school, the Louisiana Court of Appeals found that it was not a violation of the artist’s freedom of expression for the sculpture to be moved to a different, less-visible part of the campus, so long as the work was not completely removed. While not affording artistic expression the same protections as verbal speech, the court recognized that the right of an individual to communicate his or her point of view does not end with the spoken word.
Courts have generally decided in favor of university officials’ right to remove or relocate art exhibits. In Piarowski v. Illinois Community College (1985), the 7th U.S. Circuit Court of Appeals considered a state college's decision to relocate a controversial art exhibit from a prominent ground-floor gallery to a less prominent fourth-floor space. Given that the gallery was not generally open to the public, the court decided that the gallery was not a public forum for First Amendment purposes. Furthermore, the court concluded that "relocation is not suppression” and the college's decision did not violate the artist's First Amendment rights.
Similarly, in the 1970 case Close v. Lederle, the 1st U.S. Circuit Court of Appeals reversed a lower court's finding of a First Amendment violation when a state university removed a controversial art exhibit from a display corridor. The exhibit included nude paintings of men and women with very detailed genitalia. Though the corridor was regularly open to the public, unlike the gallery in Piarowski, the court weighed the interests of the artists against the interests of the public, which included children, who walked the corridor daily. The court reasoned that there was no suggestion that the artist sought to express any political or social views in his art, making his constitutional interests minimal.
The U.S. Supreme Court refused to hear either case.
Washburn University can display controversial sculpture