Censorship and Art

[dan2100]

An earlier version of this appeared on the Art list art@wetheliving.com on 2000/08/03. A reviewer in Reason magazine also saw some of the same things I did. See "Beyond Taste: The perils of defining art" by Charles Oliver at: http://reason.com/archives/2001/03/01/beyond-taste This does not mean I completely agree with Oliver.

Though I found What Art Is: The Esthetic Theory of Ayn Rand by Louis Torres and Michelle Marder Kamhi generally thought-provoking, the last chapter leaves a lot to be desired, especially the section dubbed "Art and the Law." Here they start out discussing copyright protection and move on to censorship. The bizarre thing is that their stance, while not openly supporting censorship, lays the intellectual groundwork for would be censors.

They appear to slip right into the, sad to say, typical Objectivist-as-a-conservative mode of thinking. Instead of questioning laws against pornography (p296) and other prohibitions of self-expression such as flag desecration laws (pp294-5) -- regardless of whether that expression is art, whether it is tasteful, or whether it follows alleged community standards -- they assume these laws are valid and show how their seemingly clear and reasonable view of art can bolster irrational and oppressive laws. What is even stranger is that Rand herself spoke out explicitly against censorship laws (see her "Censorship: Local and Express," for instance), including those against pornography, for both being vague and injurious to a free society and individual human life. (On the vagueness issue: What are "community standards?" Why should experts or a jury get to decide them for all of us? Certainly, the makers and would be consumers of censored materials are part of the community. Whenever one sees "community standards," one should immediately ask which part of the so called community is being ignored in arriving at such standards.) Nowhere in their book do they acknowledge her stance on this subject.

Though Torres and Kamhi are quick to call such things -- pornographic photos and flags stuffed in toilet bowls -- non-art, that such material is not art is not and should not be the standard for keeping any government's (or anyone else's) hands off. The standard, in fact, should be one that is well known in the Objectivist movement: Does it violate anyone's individual rights. If not, neither a government nor anyone else has a right to interfere, regardless of whether the work is art or even tasteful. (If a government or anyone else had a right to interfere, then it would not matter if it were art, it would still be something subject to the involvement of others.) The primary question in this setting then should not be "Is it art?" -- a question government should keep its hands off -- but "Should governments even be allowed to legislate or adjudicate these issues?"

While Torres and Kamhi distinguish between "art and other forms of 'expression'" (p294), they do not see that the same legal limits should apply to both. All human works (and actions) embody values in some way -- i.e., are forms of expression in some sense -- whether they be art, bridge building, or making breakfast. Freedom of expression -- not to be confused with narrow definitions which only acknowledge it in a political context -- covers all of these, from creating and experiencing art to running a business to style of dress (or undress) to everything else people can or might do. (If only art is granted full protection, then governments will have a free hand everywhere outside the gallery, concert hall, library, and cinema.) They repeatedly rely on very narrow, status quo definitions of law, never questioning whether these laws are right -- except in so far as the laws agree or disagree with their definitions and theory of art.

On the issue of child pornography (see pp296-7), they ignore that in the United States, any photograph or depiction of child nudity has time and again been considered by the courts to be child pornography. Nudists who videotape or photograph their families -- with no intention of calling such stuff art, much less broadcasting it on TV or hanging it in a gallery -- are often tried for child pornography -- tried and sometimes convicted. It's another discussion here of just what should be done about or what exactly constitutes child pornography, but a vague legal stance should not be tolerated -- especially not by people who understand the dangers of government run amok. After all, people can do do jail time over such vagaries.

Torres and Kamhi even go so far to admit elsewhere that standards of quality are basically subjective. (See page 467 note 35.) With this in mind, might not, say, the rape scene in The Fountainhead be considered purely pornographic? Is it a good candidate for banning? This does not mean the distinction between pornography and art is blurry, but illustrates that within the current cultural context, where remaining silent on these issues might lead. Books have been banned in the US and elsewhere for less titillating passages.

Also, they do not consider that such laws in themselves invite people to challenge them, thus setting us up for making this into a politically charged issue. This distracts attention away from the matter they should be concerned with -- that is, is it art? The policeman, the army, and the courts -- to use Rand's trinity -- have no legitimate role in this process, other than to uphold individual rights. I hope Torres and Kamhi see this and that, perhaps, somehow their intentions differ from what was actually printed in their book.

Finally, the argument that this is basically an esthetics book will not hold water here. One would not write a book on Objectivist metaphysics and conclude with a discussion supporting socialism, then argue that this is just a book on metaphysics so it's political conclusions should not be scrutinized. For the record, this one section should not damn the whole book, which offers a detailed examination of Rand's esthetics, Modern Art, and 20th century esthetics. It will, hopefully, be the source of much esthetics discussion in and out of the Objectivist movement for years to come. But let's hope its views on censorship don't cast as long a shadow.

[Christopher]

The example of children you bring up above I think represents not a law to censor art per se but rather a law to protect children. That is perhaps why the issue is so difficult to monitor. I think it is disgusting and abusive for a person to take such pictures with the intention of providing those pictures for a certain purpose. On the flip side, family video etc. that are innocent of such purpose and protect the privacy of the child (by not being displayed publicly) are of course ok.

So the courts are really deciding whether the process by which those pictures are taken were protective of the child or not. This is a sticky issue, and it's hard to have decisions black/white when it's so easy to lie or fib about what one's intentions were.

[dan2100]

The example of children you bring up above I think represents not a law to censor art per se but rather a law to protect children.

My discussion of this was in the context of the book by Torres and Kamhi where they assume a logic of "if it's not art, then it might be censored." I homed in on this part of their discussion because whether it's art is not relevant at all. Also, I question whether the legal definitions of child pornography aren't too loose, especially if naturists are being taken to court over it.

Regarding what such laws -- laws against child pornography are intended for -- is also questionable. I don't think most who propose or enforce censorship is going to argue that it's for censorship's sake. There's always going to be some sort of rationalization offered up.

That is perhaps why the issue is so difficult to monitor. I think it is disgusting and abusive for a person to take such pictures with the intention of providing those pictures for a certain purpose. On the flip side, family video etc. that are innocent of such purpose and protect the privacy of the child (by not being displayed publicly) are of course ok.

So the courts are really deciding whether the process by which those pictures are taken were protective of the child or not. This is a sticky issue, and it's hard to have decisions black/white when it's so easy to lie or fib about what one's intentions were.

A big problem here is, of course, how any court can objectively determine intentions. In most cases, this would be very hard to determine.

Imagine the following case. When you're seventeen, you photograph yourself in the nude in a sexually provocative pose and you also film yourself doing something sexual. Then you turn eighteen and decide to publish the photos and distribute the films. Should the law prevent this? Why?

Finally, whether you and I are repulsed by such is not the issue. It's whether there is an actual rights violation. (I think a case can be made here for child abuse, though this would have to proved -- not assumed -- and would be determined by how the object -- photograph, film, tape, etc. -- was made and not purely on its content -- such as that it contained someone under a certain age. Also, this case would not apply, don't you agree, to purely made up images and stories, such as cartoons, comics, anime, doctored photographs, and computer animation. Certainly, someone who writes a short story involving such would be completely out of the ambit of child abuse -- just as someone writing a short story in which a murder takes place is not actually guilty of murder, don't you agree?)

[Christopher]

Finally, whether you and I are repulsed by such is not the issue. It's whether there is an actual rights violation. (I think a case can be made here for child abuse, though this would have to proved -- not assumed -- and would be determined by how the object -- photograph, film, tape, etc. -- was made and not purely on its content -- such as that it contained someone under a certain age. Also, this case would not apply, don't you agree, to purely made up images and stories, such as cartoons, comics, anime, doctored photographs, and computer animation. Certainly, someone who writes a short story involving such would be completely out of the ambit of child abuse -- just as someone writing a short story in which a murder takes place is not actually guilty of murder, don't you agree?)

Naturally the issue is about protection of rights, and whether the government should ban such pictures entirely or seek out evidence to determine motive is a difficult question. The black/white solution is really a means to preventing the motives, and in the process would hurt those innocent of such motives and not actually violating a person's rights, whereas the latter leaves gray areas that must be determined by courts. I prefer the latter in this case.

There is also the issue of societal protection. If there is evidence that writing stories or drawing cartoons potentially motivates a desire that can in some cases result in actual abuse, then it is a social decision whether the banning of such material be instigated or not. We can happily say that the individual who actually commits a real physical assault should be the one responsible for the behavior, but it is absolutely not healthy to have such behavior promoted culturally. An abused child would be fully justified in asking what the hell was our culture doing by feeding into the desire that led to the abuse. So the decision on how to enact a protective law becomes even more complex.

[dan2100]

Finally, whether you and I are repulsed by such is not the issue. It's whether there is an actual rights violation. (I think a case can be made here for child abuse, though this would have to proved -- not assumed -- and would be determined by how the object -- photograph, film, tape, etc. -- was made and not purely on its content -- such as that it contained someone under a certain age. Also, this case would not apply, don't you agree, to purely made up images and stories, such as cartoons, comics, anime, doctored photographs, and computer animation. Certainly, someone who writes a short story involving such would be completely out of the ambit of child abuse -- just as someone writing a short story in which a murder takes place is not actually guilty of murder, don't you agree?)

Naturally the issue is about protection of rights, and whether the government should ban such pictures entirely or seek out evidence to determine motive is a difficult question. The black/white solution is really a means to preventing the motives, and in the process would hurt those innocent of such motives and not actually violating a person's rights, whereas the latter leaves gray areas that must be determined by courts. I prefer the latter in this case.

There is also the issue of societal protection. If there is evidence that writing stories or drawing cartoons potentially motivates a desire that can in some cases result in actual abuse, then it is a social decision whether the banning of such material be instigated or not. We can happily say that the individual who actually commits a real physical assault should be the one responsible for the behavior, but it is absolutely not healthy to have such behavior promoted culturally. An abused child would be fully justified in asking what the hell was our culture doing by feeding into the desire that led to the abuse. So the decision on how to enact a protective law becomes even more complex.

I'm not sure the issue of "societal protection" trumps the rights issue. I would say this is a matter for moral suasion and not law enforcement. But the same logic could be applied to people who like to read novels or watch movies about serial killers, rapists, or with lots of graphic violence. It seems to me that next you'll be getting ready to ban Michael Haneke films and Stieg Larsson novels.

[Christopher]

I'm not sure the issue of "societal protection" trumps the rights issue. I would say this is a matter for moral suasion and not law enforcement. But the same logic could be applied to people who like to read novels or watch movies about serial killers, rapists, or with lots of graphic violence. It seems to me that next you'll be getting ready to ban Michael Haneke films and Stieg Larsson novels.

You're right to question such a position. I don't actually know whether cartoons and such abstract stuff are lawfully banned. But to the degree that culture controls law, we have laws that become as subjective as the culture. Imagine if it were illegal not to go to church on Sunday!

[dan2100]

I'm not sure the issue of "societal protection" trumps the rights issue. I would say this is a matter for moral suasion and not law enforcement. But the same logic could be applied to people who like to read novels or watch movies about serial killers, rapists, or with lots of graphic violence. It seems to me that next you'll be getting ready to ban Michael Haneke films and Stieg Larsson novels.

You're right to question such a position. I don't actually know whether cartoons and such abstract stuff are lawfully banned. But to the degree that culture controls law, we have laws that become as subjective as the culture. Imagine if it were illegal not to go to church on Sunday!

From what I've read on the subject -- and I freely admit to being no expert here -- yes such abstract stuff as cartoons and even some written works are legally banned in some places. In the US, the pornography laws allow the court to decide what is pornography -- according to "community standards" -- this leaves the door wide open.

But I'd like to move on from discussing this particular topic and back to discussing the Torres Kamhi book and its stance on censorship -- which is directly at odds with Rand's explicit pronouncements and her core principles.

[Christopher]

I read through the other article by Reason Magazine, but I'm still not fully clear on T&K's view. Can you perhaps provide an example of how they deal with a problem of art and under what circumstances their views conflict with Rand (i.e. what is an event that they take a clear position weighing art on public policy that would conflict with taking a position of human rights)?

[tjohnson]

What about when the kids grow up and reject naturalism - they may wish their parents hadn't made those home movies. Do they have a right to not be photographed this way? Are they old enough to to make this decision? Questions, questions...

[dan2100]

I read through the other article by Reason Magazine, but I'm still not fully clear on T&K's view. Can you perhaps provide an example of how they deal with a problem of art and under what circumstances their views conflict with Rand (i.e. what is an event that they take a clear position weighing art on public policy that would conflict with taking a position of human rights)?

Aside from pornography -- and they don't limit their discussion to child pornography, but include all works consider pornographic; so even stuff legal in the US now would qualify -- they also consider flag desecration. Their goal, it seems, is to declare certain supposed works of art to be non-art -- in paritcular, if my memory's correct, either an image or an installation with the US flag stuff in a toilet bowl -- and, thus, say it doesn't fall under the usual legal protections for freedom of expression in art. Now, we can, of course, debate whether such objects are art, but, regardless of what they are, I believe they should enjoy the same rights as all other forms of expression. In other words, art does not have any special legal category. Nor does it enjoy any special rights that non-art doesn't possess. (Or, more precisely, artists don't enjoy special legal rights that non-artists don't possess.)

[Jonathan]

But I'd like to move on from discussing this particular topic and back to discussing the Torres Kamhi book and its stance on censorship -- which is directly at odds with Rand's explicit pronouncements and her core principles.

Kamhi and Torres aren't that far off from Rand. Rand believed that people have the right to not be offended by things they regard as loathsome:

"Only one aspect of sex is a legitimate field for legislation: the protection of minors and of unconsenting adults. Apart from criminal actions (such as rape), this aspect includes the need to protect people from being confronted with sights they regard as loathsome. (A corollary of the freedom to see and hear, is the freedom not to look or listen.) Legal restraints on certain types of public displays, such as posters or window displays, are proper—but this is an issue of procedure, of etiquette, not of morality . . .

"The rights of those who seek pornography would not be infringed by rules protecting the rights of those who find pornography offensive—e.g., sexually explicit posters may properly be forbidden in public places; warning signs, such as “For Adults Only,” may properly be required of private places which are open to the public. This protects the unconsenting, and has nothing to do with censorship, i.e., with prohibiting thought or speech."

As Dan asked, in his initial post, in regard to Kamhi and Torres's subjective standards, "With this in mind, might not, say, the rape scene in The Fountainhead be considered purely pornographic? Is it a good candidate for banning?"

If it's not a good candidate for outright banning, how about for its being relegated to the "adults only" section next to a copy of Debbie Does Dallas? If a few states or counties in the Bible Belt decided that The Fountainhead was loathsome and offensive, on what grounds would Rand object to its being labeled pornography and treated as such?

And since sexual content isn't the only thing that people can find loathsome and offensive, shouldn't the prohibition of all public expression be acceptable to Rand? As long as people are allowed to express themselves in private, and as long as the stated purpose of prohibiting all public expression is to "protect the unconsenting," it's apparently not an issue of censorship or of prohibiting thought or speech according to Rand.

J

[dan2100]

But I'd like to move on from discussing this particular topic and back to discussing the Torres Kamhi book and its stance on censorship -- which is directly at odds with Rand's explicit pronouncements and her core principles.

Kamhi and Torres aren't that far off from Rand. Rand believed that people have the right to not be offended by things they regard as loathsome:

"Only one aspect of sex is a legitimate field for legislation: the protection of minors and of unconsenting adults. Apart from criminal actions (such as rape), this aspect includes the need to protect people from being confronted with sights they regard as loathsome. (A corollary of the freedom to see and hear, is the freedom not to look or listen.) Legal restraints on certain types of public displays, such as posters or window displays, are proper—but this is an issue of procedure, of etiquette, not of morality . . .

"The rights of those who seek pornography would not be infringed by rules protecting the rights of those who find pornography offensive—e.g., sexually explicit posters may properly be forbidden in public places; warning signs, such as "For Adults Only," may properly be required of private places which are open to the public. This protects the unconsenting, and has nothing to do with censorship, i.e., with prohibiting thought or speech."

As Dan asked, in his initial post, in regard to Kamhi and Torres's subjective standards, "With this in mind, might not, say, the rape scene in The Fountainhead be considered purely pornographic? Is it a good candidate for banning?"

If it's not a good candidate for outright banning, how about for its being relegated to the "adults only" section next to a copy of Debbie Does Dallas? If a few states or counties in the Bible Belt decided that The Fountainhead was loathsome and offensive, on what grounds would Rand object to its being labeled pornography and treated as such?

And since sexual content isn't the only thing that people can find loathsome and offensive, shouldn't the prohibition of all public expression be acceptable to Rand? As long as people are allowed to express themselves in private, and as long as the stated purpose of prohibiting all public expression is to "protect the unconsenting," it's apparently not an issue of censorship or of prohibiting thought or speech according to Rand.

J

Kamhi and Torres also do not make the distinction Rand does. Nor do they even mention her statements on this issue. They are silent here where one would expect them to cite and quote Rand at length to support their position or to critique hers. And Kamhi and Torres do not discuss the issue of public spaces here.

I think this problem -- of freedom of expression -- relates to the problem of defining a public space and would be resolved by rigorously applying property rights -- in other, eliminating such a thing as a public space and also the institution of the state. I mean here that all spaces would be either privately owned and thus subject to their owners' control and preferences or unowned in which case the only standard would be that the expression doesn't violate anyone's rights. (And, yes, in an unowned space, no one has a right to stifle anyone else's expression as long as it doesn't harm their property directly. Those in such spaces would be able to homestead, of course, but unless and until they did they couldn't demand, say, that others stifle expressing things they found offensive.)

[Christopher]

Aside from pornography -- and they don't limit their discussion to child pornography, but include all works consider pornographic; so even stuff legal in the US now would qualify -- they also consider flag desecration. Their goal, it seems, is to declare certain supposed works of art to be non-art -- in paritcular, if my memory's correct, either an image or an installation with the US flag stuff in a toilet bowl -- and, thus, say it doesn't fall under the usual legal protections for freedom of expression in art. Now, we can, of course, debate whether such objects are art, but, regardless of what they are, I believe they should enjoy the same rights as all other forms of expression. In other words, art does not have any special legal category. Nor does it enjoy any special rights that non-art doesn't possess. (Or, more precisely, artists don't enjoy special legal rights that non-artists don't possess.)

So is their position that anything not art can be regulated?

[dan2100]

Aside from pornography -- and they don't limit their discussion to child pornography, but include all works consider pornographic; so even stuff legal in the US now would qualify -- they also consider flag desecration. Their goal, it seems, is to declare certain supposed works of art to be non-art -- in paritcular, if my memory's correct, either an image or an installation with the US flag stuff in a toilet bowl -- and, thus, say it doesn't fall under the usual legal protections for freedom of expression in art. Now, we can, of course, debate whether such objects are art, but, regardless of what they are, I believe they should enjoy the same rights as all other forms of expression. In other words, art does not have any special legal category. Nor does it enjoy any special rights that non-art doesn't possess. (Or, more precisely, artists don't enjoy special legal rights that non-artists don't possess.)

So is their position that anything not art can be regulated?

They aren't terribly clear here, but it seems to me the view is implied in the section of their book on this. To wit, they seem to be presuming that art acquires special privileges that non-art does not have. They don't, if my memory's correct (and my copy of their book is not at hand to verify), explicit state this, but it seems implied in many of their comments.

To be blunt, I feel the book would've been much better if they simply left this whole section out.

Edited April 8, 2010 by Dan Ust