By Kyonzte Hughes, Contributing Writer and Rebecca DeVerter, Legal Intern
Updated March 2018
Nudity is prevalent in today’s art, whether it’s statues, plays, or dance performances. Public and school officials, organizations, and individuals alike have taken action to remove such arguably offensive art from public galleries, theaters, and other venues.
The law governing this topic is somewhat muddled. The U.S. Supreme Court has left the ultimate determination of what constitutes offensive material to juries. However, the Court is also cognizant of prior restraints, which are considered to be the quintessential violation of the First Amendment. Prior restraints is when the government intervenes to prevent speech (or another form of expression/communication) before it takes place. Courts are suspicious of prior restraints even in instances where courts would uphold post-publication (or performance) punishment. This is because prior restraints are seen as the government acting as a censor and preventing speech from entering the marketplace of ideas in the first place. However, courts, including the Supreme Court, have carved out exceptions to this concept, but such exceptions vary from court to court. First Amendment guarantees do not vary from community to community, but opinions regarding what constitutes obscenity do.
The Supreme Court declared in 1973, with the case Miller v. California, that the First Amendment does not protect obscene material, and further 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 were community standards that should be left to the jury system. However, the final prong of the Miller test is referred to as a national standard, and is a standard that is left to the courts to define. 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.
When discussing nudity in art, theater, and dance, it is also important to look at the location of the expression as well as whether regulations prohibiting nudity is content-based or content-neutral. The Supreme Court has established four different types of locations, including public, designated public, limited public, and non-public forums According to the Supreme Court, a designated public forum, is a forum set aside by government for expressive activities (the classic examples of a designated public forum are parks and sidewalks). The status of these forums are determined by (1) the tradition as a location for speech, (2) compatibility of speech with the function of the location, and (3) the primary purpose of the location. Additionally, it is important to know the difference between content-based and content-neutral regulations. Content-based regulations are based on the subject matter of the speech, and are presumptively invalid and subject to strict scrutiny review. Content-neutral restrictions are not based off of the subject matter of the speech, and are subject to intermediate review. Content-neutral are generally upheld if they are narrowly tailored to serve a legitimate government interest that could not be more effectively achieved without the regulation. However, if a law appears to be content-neutral but is triggered by the content of the speech, it must be analyzed as a content-based regulation. Content-neutral restrictions allow the government to impose time, place or manner regulations without violating the First Amendment. Time, place or manner regulations regulate speech, but not the content of the speech, and are permissible if they are designed to prevent disruption while still protecting speech. Further, time, place and manner restrictions are constitutional if they do not relate to the content of the speech, they serve a governmental interest, and leave open ample alternative channels for communication of the information.
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). While prior restraints have been considered to be presumptively invalid, they 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 Court held that the city’s argument that the play was not in the best interests of the community was not sufficient to overcome Southeastern’s First Amendment rights.
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 1991, the Supreme Court decided the case Barnes v. Glen Theatre, Inc., which centered around two Indiana establishments that sought to “provide totally nude dancing as entertainment.” However, at the time Indiana had a statute that regulated public nudity, and required that the “dancers wear ‘pasties’ and a ‘G-string’ when they dance.” The establishments claimed that the nude dancing that was being performed was both expressive and symbolic conduct that was protected by the First Amendment, attempting to invalidate the Indiana statute. The Court of Appeals had ruled that “nonobscene nude dancing performed for entertainment is protected expression[,]” but the Supreme Court held otherwise. In a 5-4 decision, the Supreme Court reversed the holding of the Court of Appeals, stating that nude dancing is only marginally “within the outer perimeters of the First Amendment.”
Ultimately, the Supreme Court in Barnes held that “Indiana’s public indecency statute is justified despite its incidental limitations on some expressive activity.” The Supreme Court declared that the Indiana statute not only fell within the constitutional power of the state, but that it also furthered a substantial governmental interest. In deciding this, the Supreme Court referred to the 1968 case of United States v. O’Brien, which set out a four-part test regarding the constitutionality of symbolic speech. To determine whether regulation of communicative conduct/symbolic speech is lawful, the court looks at whether (1) the law is within the constitutional power of the government, (2) the law furthers an important or substantial governmental interests, (3) that interest is unrelated to the suppression of free expression, and (4) “the incidental restriction is no greater than is essential to the furtherance of that interest.” Further, in Barnes, the Supreme Court stated that Indiana’s public indecency statute had the purpose of “protecting societal order and morality,” and that “statutes of this sort are of ancient origin.” Given this long history of banning public nudity, the Supreme Court held that the interest in these regulations were “unrelated to the suppression of free expression,” and therefore upheld the Indiana laws.
In 2000, the Supreme Court heard the case of City of Erie v. Pap’s A.M. In that case, “Kandyland,” which was operated by Pap’s A.M. filed suit because the city council of erie “enacted an ordinance making it an offense to knowingly or intentionally appear in public in a ‘state of nudity,’” and provided requirement on what dancers were to wear (at a minimum, pasties and a G-string) after Kandyland featured “totally nude female erotic dancing.” Just as with Barnes, the Supreme Court declared that this case should be “evaluated under the framework set forth in United States v. O’Brien.” Further, the Court in this case related the situation to that of Barnes and stated that the ordinance here “…is on its face a general prohibition on public nudity [and] …regulates conduct alone.” Because the Pennsylvania ordinance here banned all public nudity, it related to the governmental interest of “combating crime and other negative secondary effects caused by the presence of adult entertainment establishments like Kandyland, and not at suppressing the erotic message conveyed by this type of nude dancing.” Further, by requiring the dancers at Kandyland to wear pasties and G-strings, the court determined that “[a]ny effect on the overall expression is therefore de minimis.”
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.
The issue of nudity in art and sculptures is not just confined to art galleries. Rather, there have been arguments made by artists over the banning of nude art on online outlets such as Facebook and Instagram.
In 2011, a French school teacher attempted to post a picture of Gustave Courbet’s “L’Origine du Monde” to his facebook page, and Facebook removed the photo from his page. While the teacher filed suit in a French court, this still remains an important example over Facebook’s Community Standards regarding nudity in art because “…the case has big implications for American social media companies and their moderation policies.” Additionally, this instance also highlighted problems that exist within Facebook’s community standards framework. For instance, community guidelines “are enforced by thousands of individual moderators, which means that their strong suit is often not consistency.” However, in light of this criticism, Facebook attempted to clarify their community standards. Previously, the community standards included a general ban on pornography and “most other nudity,” but amended their standards to include more specific examples. Such examples included “photographs of people displaying genitals or focusing in or fully exposed buttocks…female breasts if the nipple shows.” However, the guidelines created some exceptions for images depicting breastfeeding, post-mastectomy scarring, as well as “photos of paintings, sculptures and other art that depicts nude figures.”
The Instagram Community Standards have somewhat been infamously known for their strong stance on banning nudity on their platform. According to their Community Standards, Instagram wants their users to “post photos and videos that are appropriate for a diverse audience.” Further, the Community Standards state: “[w]e know that there are times when people might want to share nude images that are artistic or creative in nature, but fo a variety of reasons, we don’t allow nudity on Instagram.” Included within this are photos, videos, and some “digitally-created content” that show “sexual intercourse, genitals, and close-ups of fully-nude buttocks.” In addition to these categories, the Instagram Community Standards also ban “some photos of female nipples,” but carve out an exception for “post-mastectomy scarring and women actively breastfeeding.” Additionally, Instagram created another exception for nudity in “photos of paintings and sculptures.” While one would think that this would create clear guidelines for what can and cannot be on the app. For instance, Instagram has been known to remove some pictures from their platform, while allowing “a litany of pronographic images found under the simple hashtag #girls.” Therefore, what is considered to be acceptable nude art and what is not still remains very unclear.
Researcher Bill Kenworthy contributed to this article.