Ms. Monica Nolan, President
Ventura County Arts Council
646 County Square Drive, Suite 154
Ventura, California 93003-0436
By e-mail and fax
March 4, 2008
Re: A Night of Passion Art Exhibit/Ventura Music Festival
I am writing on behalf of the National Coalition Against Censorship, an alliance of over 50 national non-profit organizations united in defense of free expression, regarding the recent removal of artwork by Paul Zanotti and G. Ramon Byrne from the above-referenced exhibit, which was housed in a public space in a government building.
According to press accounts of the incident, the works were nudes depicting a woman’s buttocks in an Italian marble sculpture by Mr. Byrne and a Roman nymph’s breasts in a mosaic by Mr. Zanotti. Apparently, the works were pulled by the Council after complaints about the pieces were voiced by some viewers. The Ventura County Star reported a statement by you to the effect that, consistent with the public gallery’s purpose, art placed there must be “suitably appropriate.” However, the parameters for what is “suitably appropriate” remain undisclosed. The VCAC’s website does not provide any elaboration for either artists or the general public.
The Ventura County Star also noted your suggestion that this is not a case of censorship but of simply deciding what art is appropriate for the space. We disagree. According to your website and that of the California Arts Council, the VCAC is an official local partner of the CAC, a public agency, and obtains funding from CAC, as well as the National Endowment for the Arts. Being in part a publicly funded organization, VCAC is subject to First Amendment proscriptions on the suppression of free expression. While public arts
organizations may consider community standards of “decency” in their programming, the Supreme Court has made it clear that rules that are “calculated to drive ‘certain ideas or viewpoints from the marketplace” are Constitutionally suspect. National Endowment for the Arts v. Finley (1998).
Likewise, simple nudity is not a sufficient ground for excluding artwork from public exhibition. If it were, a vast amount of great art, including masterpieces like Michelangelo’s David, would be off limits. As the Supreme Court has noted multiple times, “nudity alone does not place otherwise protected material outside the mantle of the First Amendment.” Schad v. Mount Ephraim (1981), Jenkins v. Georgia (1974), Osborne v. Ohio (1990).
Finally, it appears that the city or county of Ventura intended to create a public forum for the display of artwork to be auctioned in a fundraiser for the Ventura Music Festival. While the Festival’s Executive Director, Cheryl Heitmann, may, as the Star has reported, take the view that the appropriateness of artwork is to be decided solely by whomever is in charge of the venue, our courts have time and again reaffirmed that the First Amendment transcends that concept where a public agency may be involved. The case of Hopper v. City of Pasco (9th Cir. 2001) is illustrative. There, the plaintiff artists were invited to display their work at the City Hall, and were then precluded from doing so because the work provoked controversy and public officials considered it “sexually suggestive.” The Court noted that the city, by opening its display space to expressive activity, evinced “an intent to create a designated public forum.” In such a forum, the Court concluded, the content-based removal of work would only be justifiable if there was a “compelling state interest and is narrowly drawn to achieve that end.” The Court held that the mere fact that the artwork caused controversy was insufficient to justify its suppression. Indeed, the Supreme Court has noted that “[i]f 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 (1989). VCAC, as the beneficiary of public funding, is not exempt from these principles.
What is most troubling here is the occurrence of an arbitrary, subjectively determined decision to preclude certain art from public view based on totally undefined standards of any kind. This fulfills no compelling (or even rational) state interest and crosses the line separating a legitimate exercise of curatorial discretion from censorship. No one is well served by this blatant violation of First Amendment expressive freedom – not the public, which is deprived of the opportunity to view and evaluate artistic work for itself, or the artists who seek a neutral forum for display.
We urge you to reconsider your decision in this matter and restore the pulled artworks to the exhibition. In addition, it should be made known to all artists who are invited to participate in open exhibitions what policies and practices will govern the selection of work for public display.
We look forward to your response.
National Coalition Against Censorship