Letter from NCAC & the First Amendment Project about Censored Political Art in Fairfield CA
Director of Community Services
Fairfield City Hall
1000 Webster Street
Fairfield, CA 94533
Dear Mr. DeLorenzo,
The National Coalition Against Censorship and the First Amendment Project are national organizations concerned with preserving and promoting the fundamental right to freedom of artistic expression. We were disturbed to learn that Jim Kimberly’s sculpture "The Super Imposer" has been removed from the Juried Art Show at the gallery of the Fairfield Center for Creative Arts because it was considered politically controversial.
It is our understanding that a jury of visual arts professionals selected "The Super Imposer" for inclusion in the Art Show. The piece was removed soon after being put on display, because you, in your official capacity as director of the Community Services Department, as well as other government officials, considered it too politically controversial in view of the war in Iraq and the military presence in the Fairfield community. Another reason given for the removal of the piece, that it was too big and violated fire regulations, appears clearly pretextual: other large pieces had been previously on display in the same space without any safety concerns and "The Super Imposer" was selected by a jury fully aware of its size. Clearly, the viewpoint expressed in "The Super Imposer" played a decisive role in the decision to remove it.
This incident raises serious questions regarding freedom of artistic expression, a fundamental liberty guaranteed under the First Amendment to the U.S. Constitution and the Liberty of Speech Clause of the California Constitution. These provisions undeniably protect the right of an artist to exhibit work that might disturb, annoy, or offend government officials. As the U.S. Supreme Court has affirmed, "If there is a bedrock principle of the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." (Texas v. Johnson, 491 U.S. 397, 414, 1989)
As the exhibition is placed in a public building, serious constitutional issues are also raised as to what extent unarticulated, content and viewpoint-based decisions, unrelated to artistic merit, may be used to justify the exclusion of works. The United States Court of Appeals for the Ninth Circuit, considering a policy that excluded "controversial" artwork from a public exhibition space, recently stated: "the potential for abuse of such unbounded discretion is heightened by the inherently subjective nature of the standard itself. A ban on ‘controversial art’ may all too easily lend itself to viewpoint discrimination." Hopper v. City of Pasco, 241 F .3d 1067 (9th Cir. 2001). The same court firmly rejected the City of Pasco’s argument that they were not censoring the artists as there were other places where the work could be shown.
The very functioning of a democratic society depends on the ability of a diverse public to voice a variety of opinions without fear of retaliation by the government. However, we understand that controversial speech may raise difficult issues for local governments that feel some tension between their constitutional obligations and their duties to serve their communities. In order to address such conflicts we encourage arts facilities to adopt freedom of artistic expression policies. A clearly articulated policy that acknowledges the vital role that freedom of artistic expression plays both in our democracy and in the historical context of the arts, and a clear procedure for addressing any complaints or disputes that may arise from publicly displayed artwork will typically stave off most of these conflicts. We would be happy to supply you with sample policies, as well as help you develop your own. In the meantime, we urge you to have Jim Kimberly’s work returned to the Art Show as soon as possible. Feel free to contact us if you have any questions of concerns.
Arts Advocacy Project
National Coalition Against Censorship
First Amendment Project