Topic for Discussion

How do you personally feel regarding how your basic constitutional rights (such as free speech, right to privacy) are protected and allowed for when it comes to your personal online activities (such as e-mail, social networking, blogging, etc.)?


Untitled (tattoo)

Untitled (Tattoo)

Untitled (tattoo)
Ronald P. White

The Issues:

Art as “Speech”

The U.S. Supreme Court has held that non-verbal expression may sometimes be considered “speech” for the purpose of receiving First Amendment protection. As a result, symbols, works of visual and written art, and even physical acts may enjoy the protection of the First Amendment. For many people, tattoos have important commemorative or even religious significance. Yet despite this communicative purpose, courts have nonetheless upheld many state imposed restrictions on body art.

In 1999, Ronald White, a tattoo artist in Florence, South Carolina, drew a tattoo on a man for a local television news broadcast. The act was the first step by Mr. White in his challenge to a South Carolina law that prohibited tattooing except by a licensed physician for cosmetic or reconstructive purposes. Mr. White was arrested, fined $2,500 and put on five years’ probation for violating the state’s anti-tattoo law. Mr. White appealed his conviction to the South Carolina Supreme Court, arguing that the statute’s outright ban of tattooing violated his First Amendment right to freedom of speech.

Is it protected?

The state court affirmed the conviction, holding that the process of getting a tattoo, as opposed to the tattoo itself, was not sufficiently communicative to be considered “speech.” The court went on to hold that even if it had found that tattooing was “speech” for the purposes of the First Amendment, the public health risk associated with it justifies regulations to which other art forms may not be subjected.

Mirth and Girth

Mirth and Girth (painting)
David Nelson

The Issues:

Satire and Political Commentary
Civil Liability for Public Officials

The visual arts have long been a medium of political and social commentary. Included in this history is the satirical and often caustic depiction of public officials. The Supreme Court has held that  graphic depictions and satirical cartoons have played a prominent role in public and political debate and, as such, receive the full protection of the First Amendment.

Under federal law, when a public official acts using his official authority (“under color of law”) and violates an individual’s constitutional rights, that individual may sue the official for monetary damages.

In May 1998, David Nelson, a student at the School of Art Institute of Chicago, submitted one of his paintings in the school’s annual competition. Entitled “Mirth and Girth,” the painting depicted recently deceased Chicago Mayor Harold Washington wearing women’s lingerie. When word of the painting reached Chicago City Council, three of the Council’s aldermen went to the Art Institute, took the painting from where it was displayed, and attempted to remove it from the campus.

Upon receiving a phone call from a fourth alderman, Chicago’s police superintendent ordered that the painting be taken into custody. David Nelson filed suit against the aldermen alleging their actions violated his First Amendment rights.

Was his art protected?

Citing the long history of the visual arts as a medium for political and social commentary, the Court of Appeals for the Seventh Circuit held that the aldermen’s action of going onto private property to seize a painting simply because they found it offensive was a violation of the First Amendment. The City of Chicago settled the lawsuit by agreeing to pay $95,000 in attorney’s fees to Nelson’s lawyer.

The Holy Virgin Mary

The Holy Virgin Mary
Chris Ofili

The Issue:   Public Funding for the Arts

Nothing in the U.S. Constitution requires the government to spend taxpayer dollars to fund artistic expression. If the government chooses to fund the arts, however, it must do so in a manner consistent with the First Amendment, i.e. funding decisions cannot be based on whether the government agrees with the message being expressed in the art.

Yet government funds are not infinite; obviously, every request for arts funding cannot be granted. As such, government agencies must have some discretion in choosing where and how to allocate funds for the arts.

A signature feature of artist Chris Ofili’s work is the use of natural substances. In his portrait The Holy Virgin Mary, the natural substance was elephant dung. The painting was one piece in the Brooklyn Museum of Art’s display of Sensation, a multi-artist exhibition of works drawn from a private collection. New York City Mayor Rudolph Guilliani derided the exhibition as “sick stuff,” taking particular offense at Ofili’s The Holy Virgin Mary. Although no public monies were used to fund Sensation, Mayor Guilliani called for withholding funds designated for the museum’s operating expenses and maintenance, as well as evicting it from the city-owned building it leased unless the exhibition was cancelled.

Was the Holy Virgin Mary protected?

Indirectly, yes. In Brooklyn Institute of Arts and Sciences v. City of New York, the federal district court in New York issued a preliminary injunction temporarily preventing the City from taking any action against the museum. The Court believed that when the case was fully litigated, it was likely that that City’s proposed actions of withholding funds and evicting the museum would be seen as an unconstitutional attempt to control the content of the museum’s exhibitions. Six months of legal negotiations culminated in an agreement by the City to repay the withheld funds, as well as another $5.8 million for refurbishment to the museum.

Who Killed My Dog

Who Killed My Dog
Sarah Boman

The Issues:

Violent and Threatening Imagery
Artistic Expression in Public Schools

In 1969, the U.S. Supreme Court determined that “true threats” of violence was among those categories of speech that are not protected by the First Amendment. What constitutes such a “true threat,” however, is often difficult to distinguish from constitutionally protected speech.

Expression that is reasonably understood to be an artistic statement is protected by the First Amendment even if it depicts disturbing acts of violence. On the other hand, expression that a speaker does not intend as a threat, but a listener reasonably interprets as such, may be punishable. In the context of public schools, the U.S. Supreme Court has determined that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Yet the Supreme Court has made it equally clear that school authorities have a strong and valid interest in maintaining discipline and carrying out their educational mission. The pursuit of these goals sometimes allows restrictions on speech within the public school context that would not be tolerated elsewhere.

In 2000, seventeen year-old high school senior Sarah Boman created a poster for her art class at Bluestem High School in Leon, Kansas. The poster contains a narrative, written in the first person, exploring the question, “Who killed my dog?” Included in the narrative were the statements, “I’ll kill you if you don’t tell me who killed my dog,” and “I’ll kill you all!”Boman, an accomplished art student, stated her piece was a work of art that reflected no personal experience with a dog.

Initially, Boman was permitted to hang the poster on a door in a school hallway. The school’s principal subsequently saw the poster, found it disturbing, seized it, and ordered an investigation. A few days later, Boman was suspended from school for the remainder of the year, approximately 81.5 days.

Is this protected?

Yes.  Boman sued the school district in federal court for an injunction to return to school. The U.S. District Court for the District of Kansas granted the injunction, finding that Boman’s work neither constituted a threat nor caused a substantial disruption at her school.

Malted Barbie

Malted Barbie
(8″ x 10″ photograph from the series Food Chain Barbie)
Tom Forsythe

The Issue:   Copyrights and Artistic Expression

By definition, a copyright is a specific restriction on who can say what. On the other hand, advances in science and art generally rely on works that came before them. Recognizing these issues, federal law allows several exceptions to copyright protection. The “fair use” exception excludes from copyright protection works that criticize and comment on another work. The U.S. Supreme Court has recognized that works of parody and satire, like works that comment and criticize, often sufficiently transform a work to qualify for the fair use exception.

In 1997, photographer Tom Forsythe developed a series of 78 photographs entitled “Food Chain Barbie.” The photos generally depicted one or more of the popular dolls juxtaposed with vintage kitchen appliances. Forsythe explains that his work is a critique of our culture’s objectification of women and he chose to parody Barbie because he believes the doll represents “the most enduring of those products.” Mattel, Inc., the manufacturer and owner of the Barbie copyright, was not amused. It sued Forsythe alleging, among other claims, that his work violated its copyright.

Is this art protected?

Yes.  The U.S. Court of Appeals for the Ninth Circuit disagreed. The Court found that Mattel had established Barbie as “ideal American woman” and a “symbol of American girlhood.” Forsythe’s work turned this image “on its head,” said the Court, finding the photographs a parody of everything the doll has come to signify. “Food Chain Barbie” qualified for the fair use exception.

Blizzard of Ozz

Album cover of Blizzard of Ozz
Ozzy Osbourne

The Issue:   Audience Reaction to Art: Who is Responsible?

Art is intended to be evocative. But if a work of art evokes a violent or otherwise illegal response, should the artist be held responsible for the actions of his or her audience? The U. S. Supreme Court held that expression advocating violent or otherwise illegal behavior only loses First Amendment protection if the expression is directed to inciting or producing imminent lawless behavior, and is likely to result in such action.

On the evening of October 26, 1984, nineteen year old John McCollum shot and killed himself while listening to the recorded music of rocker Ozzy Osbourne. John’s parents filed a lawsuit against Osbourne. The central premise of each cause of action was essentially the same: the lyrics, tones, and pounding rhythm of Osbourne’s music had the cumulative effect of encouraging self-destructive behavior. The McCollums asserted Osbourne knowingly cultivated an audience of young people struggling with the transition into adulthood and, therefore, should have known that Osbourne’s music would likely result in self-destructive behavior on the part of fans such as John.

Is it protected?


The trial court dismissed the McCollum’s complaint holding that the First Amendment was an absolute bar to the lawsuit.  “[M]usical lyrics and poetry,” said the court, “cannot be construed to contain the requisite ‘call to action’ for the elementary reason they simply are not intended to be and should not be read literally….”  The court went on to state that even if the lyrics were expressing the view that suicide is an acceptable alternative to life, Osbourne has the constitutional right to express that view.