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By Kyonzte Hughes
Contributing writer

Nudity is prevalent in today’s art, whether it’s statues, plays or dance performances. Public officials, school officials, organizations and individuals have often taken action to have art they deem offensive removed from public galleries, theaters and other venues.

The law governing these actions is somewhat muddled. The U.S. Supreme Court has left the ultimate determination of what constitutes offensive material to juries. Although in general any prior restraint, in which a work or performance would be prevented from display, violates the First Amendment, courts, including the nation’s highest court, have carved out exceptions. But these vary from court to court. First Amendment guarantees do not vary from community to community, but opinions regarding what constitutes obscenity do.

In 1973, in Miller v. California, the Supreme Court declared that the First Amendment does not protect obscene material. The Court set the standard for judicial review of obscenity. Material is deemed obscene if it meets all three of the following tests: 1) the “average person, applying contemporary community standards,” finds that it “appeals to the prurient interest”; 2) the work portrays sexual conduct “in a patently offensive way”; and 3) the work “lacks serious literary, artistic, political, or scientific value.”

The Court said it was not dictating how states should regulate obscene material, but it did offer examples of how states could interpret and define for themselves the Court’s standard for obscenity. Chief Justice Warren Burger, writing for the majority, explained that the Court could not define “patently offensive” and “prurient interest” for the entire nation, but that such determinations should be left to the jury system. In his dissent, Justice William O. Douglas argued that the Court had no authority to rule on obscenity because the Constitution offered no guidance on the issue and the First Amendment guarantees freedom of speech with no mention of exceptions. Douglas declared that the issue could only be resolved by constitutional amendment “after a full debate by the people.” Furthermore, Douglas said that just as people have the right to say or publish what they choose, no one is compelled to look or to listen to any of it.

In addition to being able to determine whether certain material is obscene, state and local authorities have some leeway to decide whether an artistic production featuring nudity will be allowed to occur in a particular public gallery or other venue. Private galleries receiving no government money would not be affected unless obscenity were alleged or some sort of law was being broken. An example of this occurred in Provincetown, Mass., in 2001, where a production of the musical “Naked Boys Singing” was shut down because of a bylaw in the town’s zoning laws. The show is an all-male revue which, as the title implies, features full frontal nudity. Town Building Commissioner Warren Alexander issued multiple cease-and-desist orders stating that the bylaw prohibited “adult entertainment” within 500 feet of schools, churches or other municipal buildings.

According to Provincetown Banner, Judge Gordon Piper found that the town could not prohibit the owners of the Crown & Anchor Inn, a privately owned hotel and “entertainment center,” from staging live nude performances. The judge noted a footnote in the bylaw that attaches adult entertainment to the category of retail use and ruled that the inn did not fall under the town’s definition of a retail establishment.

”Naked Boys Singing” has run into trouble in a number of venues, including Atlanta and Milwaukee. The show was raided and closed down in both cities because there were questions about whether the venues had the proper permits to stage “adult entertainment.” The Milwaukee Gay Arts Center filed a federal lawsuit in 2005 against the city alleging constitutional violations of free speech and due process. The suit was dismissed by the U.S. District Court because the center had failed to identify any connection between its allegations and an express policy enforced by the city. In all three cities the show was, eventually, allowed to go on.

In 1975 the U.S. Supreme Court heard a case very similar to these cases in which they applied the doctrine of the designated public forum. A designated public forum, according to the Supreme Court, is a forum set aside by government for expressive activities. Though content-based speech restrictions are subject to strict scrutiny, content-neutral restrictions are generally upheld if they are narrowly tailored to serve a legitimate government interest that could not be more effectively achieved without the regulation. Content-neutral restrictions allow the government to impose time, place or manner regulations without violating the First Amendment.

The Court’s first application of the designated public-forum doctrine within an artistic context came in 1975 in Southeastern Promotions v. Conrad. Southeastern Promotions had sought permission to use the Chattanooga, Tenn., municipal auditorium for a performance of the musical Hair. Chattanooga city officials refused Southeastern’s request, citing the play’s nudity, sexual themes, promotion of drug use and profanity. The Court found the municipal auditorium to be a designated public forum, though it focused more on the city officials’ action being an example of a prior restraint (suppressing speech before it occurs). Prior restraints have sometimes been held acceptable when certain procedural safeguards, such as judicial review, are in place. In this case, the directors of the auditorium had sole authority to determine what speech occurred in the auditorium. The city’s opinion that the play was not in the best interests of the community was not sufficient to overcome Southeastern’s First Amendment rights, the Court held.

Courts seem more willing to abridge First Amendment rights when children may be exposed to adult material. In Close v. Lederle, the 1st U.S. Circuit Court of Appeals in 1970 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 (and thus was a public forum), 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 Supreme Court denied certiorari in (declined to hear) the case.

In March 2002, the New York-based National Coalition Against Censorship urged the Tennessee Arts Commission to reconsider a ban on nude art at its gallery. The executive director of the Nashville, Tenn.-based arts commission, Rich Boyd, defended the policy, saying, “this is a public gallery, and we are a state agency that has schoolchildren coming through here.” Boyd said the state attorney general’s office had advised him that the ban appeared legally sound. If the policy were challenged in court, a judge would probably consider the complex public-forum analysis.

In 2006, Loveland, Colo., was embroiled in controversy over a seven-foot bronze sculpture titled the “Triangle.” The sculpture, which features three nude figures, was installed in a busy traffic roundabout near, among other things, a new charter school. The sculpture triggered months of protests from parents and religious leaders. It was eventually moved to a different, less public location.

Researcher Bill Kenworthy contributed to this article.

Updated November 2008


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Ed Stross had been sentenced to 30 days for violating Roseville sign ordinance with mural featuring bare-breasted Eve, word 'love.' 02.25.08

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Gay arts group claims Milwaukee ordinance is unconstitutional because it gives officials 'unbridled discretion' over permit process. 11.12.08

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