Cell Block

Dear Prisoner 035178

You will have wondered why you failed to receive your April copy of Art Monthly (#235), which was posted to you as usual last month. It was received at the prison on April 20, but was impounded by the authorities.

Art Monthly has just received a copy of a letter to you dated April 20, 2000 from MH Gallemore, Assistant Warden, advising that there is a right of appeal to the Department of Corrections, Tallahassee, Florida. It says that the magazine was impounded because of alleged violation of requirements set forth in Department of Corrections Rule Chapter 33-501.401. In particular, because Pages 7,8 and 9:

  • contain visual material which is dangerously inflammatory in that it advocates or encourages riot, insurrection, disruption of the institution, violation of department or institution rules, the violation of which would present a serious threat to the security, order or rehabilitative objectives of the institution or safety of any person;
  • pictorially depict sexual conduct: (1) actual or simulated sexual intercourse (2) sexual bestiality (3) masturbation (4) sadomasochistic abuse (5) actual contact with a persons clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast (6) any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed;
  • present nudity or a lewd display of the genitals in such a way as to create the appearance that sexual conduct is imminent.

We would be very interested to hear from you about whether you have appealed against this decision, what the outcome was, and whether we can be of any assistance.

Art Monthly would also be interested to hear from any other prisoners, whether they are detained in the US, UK or elsewhere, who experienced similar difficulties in receiving their April copy of Art Monthly.

This is an unfortunate, but true, incident and gave the proprietors, editor and myself serious cause for concern. After all, Art Monthly is not a pornographic magazine, but a long-established publication specialising in modern and contemporary visual art journalism and criticism. However, the incident does raise important issues about where the boundaries lie between, on the one hand, the elevation of the spirit and, on the other, the gratification of the dark side of the soul: do we have any guides, signposts, litmus tests, benchmarks or rules of thumb to help us to decide?

Boundaries are blurred by history, changing sensibilities, religions, education, cultures and even prison regimes. It has often been said that the pornographer's work is at least as old as the earliest manifestations of what we now call visual art and is often one of its objectives: ancient Greek vases carried images of sexual acts and works of the Italian Renaissance often contained explicit nudity and implied sexual relations of a none-too conventional kind (albeit in the context of Biblical or mythological stories). Historians are best qualified to say whether such imagery was viewed at the time with prurience, or was intended to offer gratification. In any event, intervening centuries of scholarship have placed such works in high cultural contexts.

The advent of photography during the 19th Century saw that medium become the popular vehicle for the pornographer, but photography has also developed over the past century and a half into a respected fine art medium. So much so, that it is nowadays for the viewer to decide whether a photographic image crosses the boundary from spiritual elevation into baser territory.

In 1996, Bill Viola's The Messenger became the subject of censorship: the work was a video installation commissioned for Durham Cathedral as part of the North East of England's 'Year of Visual Arts', and showed a naked man rising to the surface of a tank of water, taking air and re-submerging; sight of the man's penis gave the local Police cause for concern. A criminal prosecution was averted by the placement of large screens around the offending work. It is reported that Viola himself commented: “Should such censorship be extended to cover the nakedness of the cherubs, and near nakedness of the crucifixes?” Good question.

In the same year, the Robert Mapplethorpe retrospective at the Hayward Gallery raised similar issues when the curators of the show themselves excised two works from public viewing: Rosie, shot in 1976 and showing a three year old girl in a dress, without underwear, sitting legs astride a bench, with part of her genitalia in view; and Marty and Hank showing two men having oral sex. For some reason, the Hayward had taken advice from the Metropolitan Police Vice Squad about these and one other work (Helmut and Brooks, which showed fist-fucking and was not the subject of exclusion). Inevitably, the tabloid press had a paedophilia field day over the exclusion of Rosie, despite the fact that the work had never been excised from the show elsewhere during its world tour up to that date and that Rosie herself (a 23 year-old at the time of the Hayward exhibition) loved the picture and displayed it in the restaurant she managed in Notting Hill.

At the time, the most constructive public comment was given by Luke Rittner, former Secretary-General of the Arts Council of Great Britain, who was concerned about the British media frenzy and a possible backlash against publicly subsidised art. He is reported as saying 'The Hayward must be convinced of their own beliefs in the artistic qualify of the work they are showing. If they are convinced, they should go ahead with the show.' Rittner's balanced approach in fact reflects that of UK law, but it is not always the approach taken by the Police or other law enforcement agencies.

In 1998, Mapplethorpe's Certain People: A Book of Portraits (published in 1985 and including Rosie, Marty and Hank and Helmut and Brooks) was seized by the West Midlands Police Service – or rather a copy owned by the Library of the University of Central England. A criminal prosecution was again averted (for possession of an 'obscene' publication) when the Crown Prosecution Service decided it was not in the public interest' to pursue a case against the UCE's Principal, who had steadfastly refused to accept that the book be withdrawn from the Library.

Every State or other governing body (including a penal institution) has a duty to protect its citizens, children or inmates against depravity, corruption, insults, abuses or offence, whilst at the same time not infringing anyone's rights of access to education and forms of cultural expression. This is a tricky, but essential, balancing act which sometimes tilts the wrong way. A constructive step in the right, direction was taken by the UK Parliament in 1991 which, to its great credit, enacted The Indecent Displays (Control) Act. This law allows art galleries and museums to show 'indecent' work (within their buildings) for which other organisations could be prosecuted. This sensible approach rightly places great responsibility and public trust on curators of galleries and museums; for it is they (and not the Government, Police, other law enforcement agencies, or the courts) who should carry the initial responsibility of deciding whether (and if so, how) to expose to public view artistic works they believe to be significant despite the sometimes unpalatable nature of the subject-matter.

It is under this balanced legal framework that Nicholas Serota and his colleagues exposed some such works for public viewing at Tate Modern last month when it was opened by the Queen. Sadly, Prisoner 035178 in the Florida Department of Corrections will have to wait some time for that experience.

© Henry Lydiate 2000

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This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.