What is the Proper Way to Display a Flag?
“Found Art” is a term often used to describe a trend of incorporating everyday objects into works of art. Courts have upheld laws that prohibit artists from incorporating objects with inherently dangerous properties into their works. The First Amendment will not, however, tolerate laws that prohibit incorporating non-dangerous but venerated objects into works of art simply because the work casts the object in a negative light.
In February 1989, Dread Scott, then known as Scott Tyler and a student at the Chicago Institute of Art, displayed his work What is the Proper Way to Display a Flag? as part of a student exhibition at the Institute. The work included an American flag laid out on the floor. Mounted on the wall directly above the flag were a photograph of various images of American flags and a shelf holding a book in which visitors were invited to record their thoughts about the display. In order to do so, however, they had to step on the flag.
The work immediately provoked daily protests outside the Institute. The work immediately provoked daily protests outside the Institute and Chicago’s City Council soon passed a local ordinance banning flag desecration. The City filed a lawsuit in Circuit County Court, asking that the ordinance be declared constitutional.
Is this art protected? YES
In November, Judge Kenneth L. Gillis ruled that the ordinance could not be used to prosecute artists who incorporate American flags in their works because “when the flag is displayed in a way to convey ideas, such display is protected by the First Amendment.”
Holier Than Thou(bronze sculpture)
by Jerry Boyle
The Issue: Religious Freedom and Artistic Expression
In addition to prohibiting laws that abridge freedom of speech, the First Amendment to the United States Constitution bars laws “respecting an establishment of religion.” Referred to as the “establishment clause,” the U.S. Supreme Court has interpreted this provision as prohibiting the government from endorsing one religion over another, or even endorsing religion over no religion. Unfortunately, this mandate is easier to state than practice when it comes to artistic expression. For example, in a government sponsored art exhibit, does the establishment clause prohibit the entry of any and all works with a religious theme, or does the exclusion of such works violate the free speech rights of artists? Courts.
Washburn University is a public institution located in Topeka, Kansas. Each year the University sponsors an outdoor sculpture contest. Once selected, the winning entries are displayed around campus for several months. One of the 5 winning entries for the 2003 contest was a sculpture by artist Jerry Boyle. Entitled Holier Than Thou, the work shows the upper body of a clergyman wearing a miter, the tall hat commonly worn by Catholic popes. Controversy erupted soon after the sculpture was placed on the Washburn campus. Critics contended that the clergyman was portrayed with a grotesque facial expression and that the ceremonial hat he wore resembled a phallus. The statue so greatly offended a Washburn professor and student that they filed a lawsuit in federal court demanding the removal of the statue. The two plaintiffs alleged that the statue conveyed an impermissible state-sponsored message of disapproval of the Catholic faith and religion.
The Tenth Circuit Court of Appeals disagreed. The court concluded that neither the purpose nor the effect of displaying the sculpture was to spread an anti-Catholic sentiment. The court went on to say that, viewed in context with the other sculptures displayed on campus, “any reasonable observer… would understand the university had not endorsed that message.”