In a bloody, disorganized morgue in Mexico City, Joel-Peter Witkin hovers above the mangled mess of legs and bodies to find the perfect body part to be photographed among an elaborate assortment of fruits and props. The resulting photograph places corpses and cornucopias in the same light. While understanding the artistic attractiveness of Witkin’s work, SFMOMA should first understand the various principles surrounding the First Amendment, obscenity, and social pressures that influence the display of art in such a public area.
Before discussing the potential displaying of Witkin’s photographs, we have to understand the principles that are enshrined in the First Amendment and how that protects art. The First Amendment and subsequent Supreme Court rulings have stated that the government has no power in restricting the speech of others depending on its content. However, there have been many different schools of thought on what the First Amendment was created to protect. The first of these is the expressionist view that the enabling of speech allows people to express what they feel is essential to their personal growth.
This position argues that the ability of the individual to express themselves is important for the mental growth of the person. Any restraint on that growth would then reduce the ability for that individual to participate in active discussion . According to this view of the First Amendment, the creation of laws prohibiting certain types of messages on the basis of their content impacts the mental development of individuals and society. This view would make art a protected medium on the basis of its use for the mental development of an individual.
Even with this, there are some limits that come with this view. Mill discusses what other have called the Harm principle as the limit for our expression. This principle states that the rights of our expression only end at the start of the rights of another person. In this understanding of the importance of the freedom of expression we have a sense that the same expression that allows us to expand our mind, if taken to an extreme can cause harm. This is also seen in the more instrumental approach to understanding the First Amendment as a tool that is required for the growth of a democracy.
The significance of this interpretation is that art must be given a certain level of protection that enables it to still be used as a tool for individuals to grow. If this expression is stifled, the price paid is “a sort of intellectual pacification” that sacrifices “the entire moral courage of the human mind. ” This and the following discussion on the viewpoint of Alexander Meiklejohn, make up most of the philosophical underpinnings of the First Amendment. Meiklejohn argues that the First Amendment is only concerned with the ability of the people to govern themselves.
This instrumentalist approach says that the ability of the First Amendment to be implemented relies on the power inherent in the people. He further elaborates on this by stating that the additional statements in the Bill of Rights and elsewhere show that the vast majority of powers are reserved by the people so that in such a certain situation they may be able to draw upon those powers to change their course of government. By this theory, the “freedom of speech” is not a protected item but it is the peoples warning to the government so it may not intrude on this public power.
In addition to this, Meiklejohn states that there are other forms of self-governance that include voting and oversight of the officials elected and the possibility of expanding powers to the government to fight a certain issue. While the ability of the people to self-govern is certainly a noble cause, there are certain tools that have to be protected. Education, public discussions, scientific discoveries, art, and literature have to be protected for each one provides information required for the people to make informed decisions.
But even the protection of these forms of expression and communication have their limits. The First Amendment does not give the individual the “unlimited right to talk” but rather it demands that governing speech be protected from speech that may usurp that demand. With regard to the arts, Meiklejohn says that the First Amendment gives art this protection as it helps individuals to come to a “governing decision” be it a painting or a book. When art or other methods of communication harm the ability of the people to come to a “governing decision,” then such works may be restricted.
This “governing interest” can be mishandled by people in power to ban things that they consider to be harmful for the public on the basis of their own morals. Even when this article was published and even today, many people are challenged and offended by ideas rather than being stimulated and engaged. This shows the potential bias that administrative and political officials may have in trying to determine what should be restricted or banned. Before we grapple with what is to be banned or protected, we have to establish if art and then photography should be given protected status.
These two points of view give art a distinct role in either being a communicative form of expression or it can be used as a tool for the public to have a discussion on policy and other important topics. Within each view, art has eventually come to be understood as a powerful tool for communication and self-expression. Artists have used this form of communication for a varied array of uses from depicting the horrors of war to simply what they feel.
In addition to being used as a tool for communication, art has often redefined itself and in each shift, there has been many divided sides on what kind of a course art should take. As a result of these shifts, some previous forms of expression and communication such as photography has become a part of the art world, but this change did not occur instantly but rather as a part of a gradual shift in recognizing its importance as a tool and later on as an expressive medium.
Photography early on was used as a mechanical device intended to record events and often times was used to show evidence of events such as crime scenes and ghost sightings. These types of uses for photography often put it in odds with other artists who wanted to use photography to distort reality and convert it into a new art form. Both of these differing uses of photography appeared in the case of Burrow-Giles Lithographic Co. v. Sarony in 1884. This case was focused on the authorship of two photographs taken of Oscar Wilde.
One was the original photograph that had a certain style and an amount of work dedicated to it while the second work was a lithograph that was done by another person using a different medium but the replicated the picture and the staging around Wilde. The Court dealt with authorship and mechanical issues that made it necessary to either consider photography as a method of recording or as a method of expression alongside its original intent. The first issue faced by the Court was its interpretation of the mechanical process involved.
Burrow-Giles argued that “a photograph being a reproduction, on paper, of the exact features of some natural object, or of some person, is not a writing of which the producer is the author. ” In addition, the Court saw that many of the statutes that were created in order to provide copyright protections failed to include photography simply because it did not exist at the time. Despite this, the Court found that be it a painting or a photographic print, the constitution is broad enough to protect the intellectual conception of the author but did not provide an answer on the nature of photography.
The Court lauded the ability for photography to accurately though a series of chemical and mechanical processes to show what was presented to and also stated that the process alone was available to anyone who wanted to make a photograph but not the right for the person to claim any photograph. In their decision to give copyright status to photography, the Court gave authorship to the person who oversaw the process to create the photograph.
The reasoning for this is that the Court found while the click of a camera is not the same as the brush stroke, there are things that the artist has complete control over such as “retouching, reworking, cropping, framing, redeveloping, coloring, etc. ” All of these things give more support for the statement that the artistic framing occurs beyond the mechanisms that take place in the camera. However the Court only looked at pre-shutter events with a more privileged status that made it possible for a difference in the labor of the artist versus what occurs between the setup of the photo and what occurs within the camera.
This separation between the work of the artist and the camera shows the authorship aspect of photography. The issue with authorship is that photography as originally understood was that the photograph captured a direct and unfiltered scene as it occurred in front of the camera. Scenes of crimes and representations of medical procedures predate the photograph but were at its creation, was to be used as a tool. The explicit nature of the photograph speaks to the viewer depending in which the viewing takes place.
They encourage the viewer to either take away something from what occurred in front of the camera or read into what they believe the image conveys to them. The duality of this problem creates the question of who is doing the talking to the viewer is it the mechanisms that drive the camera or is it the photographer who puts the camera in places and sets things in front of it to capture pictures of. In the Burrow-Giles decision, the Court sought not to answer the question of photography being an art form but rather if there is an author that works and provides support for the camera to produce the photograph and it concluded that there is.
Photography as mentioned in this case gave it a discursive property which is similar to the author in a book or the artist in a painting. Within the case there are still many unanswered questions that the Court did not seek to answer and many of those questions still plague photography today. The failure of the Court to explain photography as an art form still left open the possibility of photography being used as evidence in other situations.
Obscenity cases such as those involving child pornography and photography is one such example of were the objective view of photography goes at odds with trying to protect artists from being indistinguishable from child abusers. In New York v. Ferber, the Court argued for current child pornography laws be limited to other forms of media that visually represent live performances. This shows the still lingering belief that a photograph still provides unfiltered evidence and in this case, the abuse of a child. This gives photography a distinct category as being an art form in one case and damming evidence in another.
The ambiguity of how photography could be interpreted in the courts pose an unnecessary risk for photographers who simply want to portray childhood nudity or other topics that do not represent violence or sexual abuse to a minor. These issues have still not been fully solved but there are still some things to mention that support photography as an art form. Photography as mentioned above contains some range of creative qualities that occur beyond the camera also the assertion that photographs have an author as mentioned in Giles still provide some support of it being an art form.
