Update: TAC No Longer Practices No-Nudity Policy
July 12, 2007 In response to our concern we received a letter from the Tennessee State Attorney General’s office stating the nudity and “suggestiveness” of the piece was not the reason for the removal of the work. While the facts of the case are still under dispute and the artist is receiving help from the local affiliate of the ACLU in resolving the conflict, we were delighted to learn that there is no longer a no-nudity policy at the Tennessee Arts Commission gallery (a policy asserted in the past) and that, at least on principle, work is chosen solely on the basis of its aesthetic value.
Today, NCAC sent the following letter to Ms. Nicole Pietrantoni, Director of the Visual Arts, Craft and Media Program at the Tennessee Arts Commission protesting the rejection of several videos by Cindy Rehm because they contained partial nudity and Ms. Pietrantoni found them “too suggestive.” The work was supposed to be part of TAC’s Individual Artist Fellowship winner show.
Rejecting artwork because a public official finds it “too suggestive” raises serious First Amendment concerns and deprives Nashville residents and visitors from seeing work, which TAC itself has recognized as artistically valuable. We urge the TAC to reconsider their position and display the work. Take a moment and write your own letter or send an email to support Cindy Rehm and the First Amendment.
Ms. Nicole Pietrantoni, Director
Visual Arts, Craft and Media Program
Tennessee Arts Commission
401 Charlotte Avenue
Nashville, Tennessee 37243-0780
May 17, 2007
Dear Ms. Pietrantoni:
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 rejection of Cindy Rehm’s video works by the Tennessee Arts Commission.
As a winner of TAC’s Individual Artist Fellowship in Media award, Ms. Rehm was invited to have a show at the TAC gallery. Shortly after she delivered the works, however, you rejected the videos because one of them contained partial nudity and the others were, in your words, “too suggestive.” You gave Ms. Rehm the option to show some of her older videos. Suspecting that those, too, were likely to be judged “too suggestive,” she declined. Cindy Rehm’s work is plainly not obscene and is thus entitled to protection under Constitution. The Tennessee Arts Commission itself has recognized its artistic value. Nashville residents and visitors should not be deprived of their right to see the work of an artist who has been honored by TAC because of an arbitrary, subjective, and vague determination that it is “too suggestive.”
Nor is simple nudity 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). Nor is nudity in art “harmful to minors.” Even if it were, that would not provide a basis for refusing to exhibit Ms. Rehn’s work: “‘[R]egardless of the strength of the government’s interest’ in protecting children, ‘[t]he level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox.’” Ashcroft v. ACLU (2002), and cases cited therein.
Our courts have time and again reaffirmed that the First Amendment prohibits public officials from censoring art they find offensive or provocative. The case of Hopper v. City of Pasco (2001) in the Ninth Circuit Court of Appeals is a case in point. 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 Pasco, by opening its display space to expressive activity has evinced “an intent to create a designated public forum.” In such a forum, the court concluded, the contentbased removal of work would only be justifiable if there is a “compelling state interest and is narrowly drawn to achieve that end.”
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) A “no nudes” policy, in our view, is not a neutral policy, serves no compelling (or even rational) state interest, and therefore crosses a line separating the legitimate exercise of curatorial discretion from censorship.
The clause in your Loan Agreement which gives the executive director the discretion to remove artwork is inapplicable here. While the Constitution accords substantial leeway for exercise of artistic judgment, it prohibits government action designed solely to avoid controversy or suppress unpopular views. We urge you to reconsider your decision in this matter and in add Ms. Rehm’s videos to the exhibition. We look forward to your response.
» Read about NCAC’s previous efforts to oppose censorship and a wrongheaded "no nudes" policy at the TAC