By Brent T. Yonehara
Modern art is Communistic because it is distorted and ugly, because it does not glorify our beautiful country, our cheering and smiling people, and our material progress. Modern art . . . has become the purveyor of a destructive, degenerate, ugly, pornographic, Marxist, anti-American ideology.
– Representative George Dondero[1]
A cleansing of our culture must extend to nearly all fields. Theater, art, literature, cinema, press, posters, and window displays must be cleansed of all manifestations of our rotting world and placed in the service of a moral, political, and cultural idea. Public life must be freed from the stifling perfume of our modern eroticism . . . .
– Adolf Hitler[2]
Introduction
Censorship and the arts have long been conjoined controversies, dating back to the Byzantine period, through the Inquisition and the Catholic Church’s attempts to make art subservient to the Church, to Soviet and Nazi attempts to make art conform to a specific political ideological dogma.[3] Censorship is not a foreign concept, existing in the McCarthy era and 1990s conservative efforts against perceived “communist” art.[4]
This article attempts to discuss the relevant aspects of censorship and First Amendment protections for free expression, and the captive audience doctrine, which allows even protectable art to be regulated if the observer had no choice but to see the art. The captive audience doctrine is a relatively new phenomenon in American constitutional jurisprudence. The burden has long been on the observer to look elsewhere if the artwork offends his “sensibilities” where the artwork may be protectable First Amendment speech.[5] The U.S. Supreme Court has also enunciated that observers must make the best of their situation by “simply averting their eyes.”[6] In addition, passing observation of offensive, or even obscene, artwork goes to the notion of censorship of free flow of information in a marketplace of ideas that is anathema to a democratic society.[7]
This article will examine the development of the captive audience doctrine and analyze the relatively little case law dealing with captive audiences. For purposes of brevity, this article will not contemplate ancillary issues concerning type of forum and speech content, and will focus exclusively on the general propositions of the captive audience doctrine. The article will then argue that the captive audience doctrine in its barest essential form an aspect of censorship which does not merit a place in a modern democratic society like twenty-first century America.[8]
Development of the Captive Audience Doctrine
The captive audience doctrine is really the confluence of two powerful policies clashing in today’s society: on one hand, free expression; on the other, the substantial privacy interests of the observer who desires not to see the artwork.[9]
The basis of the captive audience doctrine can be traced back to a famous article on privacy by Louis Brandeis and Samuel Warren in 1890.[10] In their article, Brandeis and Warren first espoused the oft-used phrase “right to be let alone.”[11] The argument goes that the observer has a right to not see offensive art, and hence a right to privacy.[12] The “right to be let alone” has never been sufficiently defined with clarity. As such, the captive audience doctrine lacks any precise definition. As a result, the captive audience doctrine has been described as being “dangerously encompassing.”[13] Nevertheless, the Supreme Court has required a “substantial privacy interest” to have been invaded in order for the Government to limit or restrict offensive expression.[14] A “substantial privacy interest” in the context of art is extremely vague. One’s acceptance of so-called “good” art is another’s rejection as “bad” art. As a result, the determination of whether a particular artwork offends someone to the point of invading that person’s privacy interests makes the captive audience doctrine lack application to the art world.
Two different theories under the captive audience doctrine began to emerge. First, there is the private captive audience, that which is within one’s own home.[15] The analysis here is limited. An offensive painting resting on a wall in a private residence would raise little controversy to the unsuspecting passerby. The second, and most relevant theory, is the captive audience in public. Because offensive artwork is mostly observed in a public forum, like a gallery or open space, any analysis will be limited to the captive audience in public. Currently, the Supreme Court has not been willing to extend the captive audience protections to unwanted speech in public.[16]
The U.S. Supreme Court placed its spin on the doctrine into the context of an obscenity analysis with its landmark case, Miller v. California.[17] Miller’s three-prong test for obscenity enunciated what speech is protectable under the First Amendment, and what speech is deemed obscene, and thus unprotected.[18] Because Miller determined what speech could be suppressed, the doctrinal scrutiny turned to speech that fell inside Miller’s scope. Thus, the captive audience doctrine focuses on the regulation of protected speech, and whether even protected speech should be regulated. However, just because people are in a situation where they are subjected to art that is offensive to them does not justify that the artwork is obscene enough to be removed. As a matter of fact, the U.S. Supreme Court has never held that mere presence of a captive audience scenario was enough to justify speech limitations.[19] Nevertheless, the Court has held that the First Amendment protects even offensive speech because it has some artistic, social, literary, or political value.[20]
Another Supreme Court case, Cohen v. California,[21] placed limits on the captive audience doctrine’s grip on free expression. Cohen was protesting the Vietnam War by wearing a jacket with the words “Fuck the Draft” emblazoned on the back of the jacket as he walked through a federal courthouse.[22] The Court found in favor of Cohen and overturned his conviction.[23] The concern was that people at the courthouse conducting judicial business were “captive” as a result of Cohen’s political speech. Although the Court did not specify the captive audience doctrine in its ruling, its rationale touched upon keywords of a captive audience analysis. The Court made note of California’s argument that Cohen’s expression was “thrust upon unwilling or unsuspecting viewers.”[24] The Court stated, “those in the courthouse could effectively avoid bombardment of their sensibilities simply by averting their eyes.”[25] By moving one’s eyes elsewhere, the onlookers would prevent aversion to Cohen’s statement. At the same time, such “averting one’s eyes” would represent minimal effort, in comparison to the government’s determination of what expression is acceptable, thus offering a “convenient guise for banning the expression of unpopular views.”[26] This “avert one’s eyes” test is a starting point for captive audience analyses.
Application of the Captive Audience Doctrine to Art Cases
The Trifecta of Captive Audience Cases
In Close v. Lederle,[27] a University of Massachusetts art instructor was given permission to display his artwork in a hallway in the student union, which was used occasionally for art displays.[28] As the court noted, the exhibition was quite controversial, consisting of male and female nudes in “clinical detail.”[29] The court of appeals dismissed instructor’s case, stating that the plaintiff’s constitutional interests were minimal, and the passerby’s privacy interests in the hallway were substantial enough to justify the removal of the display from the walls.[30]
In Claudio v. United States,[31] a larger-than-life size painting of a woman accompanied by a black wire hanger and a blood-streaked fetus was displayed on a wall in the lobby of a federal building.[32] The district court found that Claudio’s display of the painting was properly removed because the “offensive expression was physically attached to the courthouse itself, and it was so large and situated in such a location that anyone entering the building had to look at it.”[33] Claudio stands for the proposition that works can be removed because of the nature of the artwork’s subject, despite the “avert one’s eyes” doctrine created by Cohen. As a result, courts are readily carving out Swiss cheese-like exceptions out of free expression rights established under the First Amendment disguised under the captive audience doctrine.
In Piarowski v. Prairie State College,[34] three stain-glassed windows in the student union were painted in the likeness of characters inspired by Aristophanes’ Lysistrata.[35] The controversy stems from the women looking too racially African-American and thus, was offensive to many in the Prairie College community.[36] After complaints, the window paintings were ordered removed to another area of the building, a fourth floor exhibition room, which was not readily visible from outside of the building.[37] The court held that the paintings could be removed, because the student union was not technically open to the public for display of artwork, but rather was only occasionally available based on invitation extended to specific artists.[38] Additionally, the court noted, “relocation is not suppression, and if reasonable, is not forbidden.”[39] It should be noted that Hitler made similar remarks when Jews were relocated from the urban centers to concentration camps.[40] While the removal of three window paintings certainly does not rise to the level of the deaths of six million people, the tones are eerily similar. Piarowski essentially stands for the proposition that any works, even questionably offensive works, could be removed and relocated. Yet, in spite of this, relocation of the offending artworks under the captive audience doctrine would still not amount to suppression to offend First Amendment principles.
Taken collectively, Close, Claudio, and Piarowski advance the captive audience doctrine, and erode the encouragement of free expression established under Cohen and Miller. All three rulings claim to protect the sensibilities of passersby. However, these claims are ludicrous. A litany of cases has held that expression cannot be suppressed merely because certain viewers will be offended.[41] One court observed that it is a fine line between protecting against viewers’ revulsion and preventing retribution through removal or suppression.[42] The fine line which courts must employ is one of caution on the side of prevention of suppression of ideas and expression. Additionally, a disturbing side note consistent with all three cases is the fact that the judges all made their displeasures of the artworks at issue known in their rulings. Both the Close and Claudio courts factored into their rulings the questionable or controversial natures of the artworks[43] The Piarowski court approved of the college’s conduct based on the “sexually explicit and racially insulting” artwork.[44] Such blatant bias leaves open the question of how well judges can objectively adjudicate issues of art when they themselves so brashly opine their personal contempt for the artworks for which they adjudicate.[45] While not entirely uncommon that judges make known their personal biases in opinions, it does create an atmosphere where judges are now determining what is “good” art and what is “bad” art, creating a separate type of censorship based on the judge’s personal predilection.
Analysis
The Supreme Court has never held that mere presence of a captive audience scenario is sufficient to justify speech restrictions.[46] As noted by several commentators, the captive audience doctrine has become a “dangerous tool in hands of a court in search of a justification for speech restrictions.”[47]
Nazis and Dondero: An Unholy Marriage
In his book, Mein Kampf, Adolf Hitler attacked modern art, including its novel schools of thought — Dadaism, Futurism, and Cubism — as decadent products of twentieth-century society.[48] In the 1930s, Adolf Hitler pursued a policy of Nazi palingenesis, or creation of a new order of Nazi art and culture, based exclusively on German artistic values, or Volksgemeinschaft.[49] Anything falling outside of German cultural values was thus deemed “degenerate,” and was subject to sanitization.[50] In 1949, George Dondero, an obscure Republican representative from Michigan, read a speech before Congress on how modern art has changed the face of America and democracy.[51] In that speech, Dondero commented that modern art was “depraved” and “destructive” to America because it was inspired by Communist ideals.[52]
The comments of Representative Dondero and Hitler almost are a perfect match. The two rile against the same genre of art (modern art), as an affront to the society and destructive to the advancement of his particular country. In 1937, Hitler put together an art exhibit in Munich, showcasing artworks from Jewish, gypsy, socialist, German expressionist and abstract artists which were considered “degenerate” art.[53] Both Hitler and Dondero held positions of leadership in their governments, and both made sharp distinctions between artwork which glorified their respective national and political identities and those artwork which, in their views, did not. Hitler sought to eliminate “degenerate” art because it fostered aesthetic forms which were not “life-asserting” and contributed to the post-World War I German decline.[54] Dondero sought to denigrate modern art as a corollary of Soviet communist principles.[55] Through their advocacy, both Hitler and Dondero attempted to distinguish legitimate art and illegitimate art: modern art to Dondero, degenerate art to Hitler.[56] Both actively utilized media sources to vilify modern and degenerate arts.[57]
Captive Audience Doctrine and Censorship by the Courts
This mentality has translated over to the American courts and the flourishing of the captive audience doctrine. The Claudio court commented on the right of individuals to not listen to speech as a corollary of the freedom of speech. Individuals certainly have the right to avoid speech if it disgusts, or even offends, to the observer.
However, the Claudio rationale, rather than distinguishing itself, goes directly counter to Cohen.[58] Cohen requires that objectionable art pervade the onlooker’s privacy in an “essentially intolerable manner” that it creates a captive audience scenario.[59] The Claudio judge never specifically addressed whether a passerby’s privacy was violated in such an “essentially intolerable manner” so as to create a captive audience scenario, but nevertheless employed it as a basis for removal of the artwork from the court lobby.[60] The work was located in the entry hall of a federal building. The judge rationalized his decision on the fact that the sculpture was so large and physically attached to the building that no one had any choice but to see the it.[61] By doing so, the Claudio judge created a standard that geographic locations and the size of the artwork determined the piece as regulable under the captive audience doctrine or not. Claudio raised the distinction of the size of Cohen’s words on his jacket compared to the display at the federal building in Claudio.[62] Frankly, a person going to a courthouse is going there on some legitimate business, and would probably be more concerned with the carrying out of the business, be it going to a courtroom, or jury selection, or the court clerk’s office. The ability of one to “avert his eyes” could be ascertained without complication of viewing the artwork because that person was at the courthouse for some other reason than to see the artwork. In other words, a person traveling to the court would have no issue averting his eyes because that person would be more concerned about the conduct of whatever legal business that that person came to the court in the first place, rather than be forced to view an ornamental artpiece in the court’s lobby.
Additionally, Judge Fox in Claudio made certain to remove the artwork from the lobby because he felt many people going to the federal building would be of the mistaken belief that the government endorsed the display.[63] In Piarowski, Judge Posner placed weight on the fact that there was a likelihood that the “sexually explicit and racially offensive artwork” would be attributed to the college when rendering his decision.[64] However, the Supreme Court refused to prevent local officials from removing a Ku Klux Klan cross from a public plaza, rationalizing that just because some people may falsely assume government endorsement of the cross, it was not enough to restrict free expression.[65] The Court noted that just because the offensive display is erected “close to the symbols of government,” it is not enough to prevent free expression just because there may be a likelihood of confusing private speech as public speech.[66] In addition, the Court pointedly commented that if the government is concerned about any misperception on the part of people confusing private and government speech, the government can simply put a disclaimer noting that the display is private speech only.[67] This is what the Claudio court should have ordered, instead of removal of an admittedly non-obscene artwork.[68]
Based on the foregoing, the location or size of the artwork does not matter. Censorship is censorship. Removal and relocation amounts to different types of censorship. Close made overtures that the limited space of the hallway made observers a captive audience.[69] However, another circuit’s decision rationalized completely in the opposite direction. In Hopper v. City of Pasco,[70] two artists’ works were barred from public display in the hallways of the newly remodeled city hall.[71] The sculptures were deemed too “controversial.”[72] The Ninth Circuit panel found no merit in the argument that the location of the works, in a public hallway, would create a captive audience scenario in which children would be exposed to the artworks.[73] The court reasoned that because Pasco officials opened up the hallway for display of local art, the mere fact that a work fosters controversy was not sufficient to suppress the art’s display.[74] Hopper and Close represent a confusion in the arena of free expression of art. One the one hand, a court refused an art display in a hallway because of the captive nature the hall had on passersby. On the other hand, a court chastised the refusal of an art display in a similar hallway. The Close court observed that “freedom of speech must recognize, at least within limits, freedom not to listen.”[75] Yet, even the Supreme Court has held that the freedom not to listen is not absolute.[76] By not granting certiorari to determine the scope of the captive audience in these situations, the Supreme Court only perpetuates an air of confusion. Thus, based on this patchwork of circuit opinions, the circuits can continue to circumvent the Miller test for obscenity and the Cohen’s “avert one’s eyes” doctrine, suppressing what would otherwise be protectable First Amendment art.
The danger of the captive audience doctrine is that it could silence speech that under regular circumstances would be constitutional under the First Amendment. The captive audience would retain a “veto power” over the artwork. This veto would stand to “undermine the entire freedom of speech fabric.”[77]
People should have no right not to listen just because the speech they encounter is personally offensive, but may not be offensive to another, or even the majority of others.[78] Generally, people control what speech is allowed into the home.[79] Generally, policy has been to maintain broad free expression rights to those expressions which are in public areas.[80] The discussion should essentially end there. However, the captive audience doctrine complicates practical considerations of display of artworks in public spaces.[81] Rather than encouraging free expression, courts have invoked the captive audience doctrine to craft censorship of generally non-obscene expression. This is the exact type of censorship that was utilized by Hitler to create a New Order in Nazi Germany in the 1930s.
Other Problems Involving the Internet
The rise of the captive audience doctrine is especially problematic for other reasons, as well. In twenty-first century America, where technology is pushing the limits and application of existing laws, the captive audience doctrine remains out of place in an era of the Internet.[82] Who is the captive audience when viewing the Claudio art display from a web site? The person in the comforts and anonymity of the home? The web surfer who stumbles upon an offensive web site? The primary problem with regulation of speech on the Internet is that enforcement is a practical impossibility, because of the global and transnational nature of the Internet.[83] In effect, a captive audience scenario in cyberspace would force operators to censor out information which is admittedly legal, yet offensive, works.
The problem lies with the captive audience doctrine itself. While in theory it has been meant to protect unwilling viewers, the contours of the captive audience doctrine remain unsettled.[84] The only limitation enunciated by the Supreme Court as to the breadth of the captive audience doctrine is that it a person can “avert the eyes.” However, to what extent does the “avert one’s eyes” doctrine no longer a burden? Is it reasonable that a federal employee avert her eyes in order to prevent seeing Claudio’s display every time she enters the federal building? Is she captive if she happens to look up to see the display on the wall? A commentator raised a similar problem where a person shouts anti-Semitic epithets to a Jewish man walking down the street.[85] The man ignores the remarks, and proceeds to his destination.[86] Is the man captive? Or, is the mental “tuning out” equivalent to the “avert one’s eyes”?[87] The captive audience doctrine remains silent as to these types of scenarios. As a result, when art should be the highest protected form of expression under the First Amendment,[88] it is restricted by the confines of the captive audience doctrine.[89] This makes the doctrine an uneasy fit under a constitutional scheme designed to promote artistic freedom and free expression.
Thus, the captive audience doctrine’s lack of definition, inability to apply effectively with contemporary technology issues, and failure to prevent legitimate free expression from censorship necessitates the doctrine’s extinction.
Conclusion
The captive audience doctrine, borne out of the limitations on constitutional protection for free expression, is an overreaching attempt by the courts to overprotect unwilling observers from viewing that free expression. In light of the limited case law on the captive audience doctrine, and of the existing case law, the complete elimination of doctrine would not be entirely out of order. The captive audience doctrine hearkens back to a day when protection of unwilling viewers from commercial and offensive speech. However, its application today in an ever-changing and highly informational society makes the captive audience doctrine a legal anachronism.
Brent Yonehara, originally published at: http://yonaxis.blogspot.com/2013/05/the-captive-audience-doctrine-return-to.html (May 15, 2013).
[1] See John Henry Merryman & Albert E. Elsen, Law, Ethics and the Visual Arts 439 (3d ed. 1998).
[2] Mein Kampf, vol. I, ch. X (1925), available at http://www.stormfront.org/crusader/texts/mk/mkv1ch10.html.
[3] See generally, Merryman & Elsen, supra note 1, at 407-50 (chronicling various censorship movements throughout history from the Byzantine and Renaissance periods to the regimes of Hitler and Stalin of the last century).
[4] See, e.g., Pat Buchanan on the Issues: The Internet Brigade, The Culture War, available at http://www.buchanan.org/000-c-culture.html (“we Americans are locked in a cultural war for the soul of our country”).
[5] See Laurence Tribe, American Constitutional Law § 12-19, at 948 (2d ed. 1988); accord Rodney A. Smolla, 1 Smolla & Nimmer on Freedom of Speech § 5:1, at 5-2 (3d ed. 2001).
[6] See Ernoznik v. City of Jacksonville, 422 U.S. 205 (1975). The Court observed:
The plain, if at times disquieting, truth is that in our pluralistic society, constantly proliferating new and ingenious forms of expression, “we are inescapably captive audiences for many purposes.” Much that we encounter offends our esthetic, if not our political and moral, sensibilities. Nevertheless, the Constitution does not permit the government to decide which types of otherwise protected speech are sufficiently offensive to require protection for the unwilling listener or viewer. Rather, . . . the burden normally falls upon the viewer to “avoid further bombardment of [his] sensibilities simply by averting his eyes.”
Id. at 210-11.
See also United States v. Playboy Ent. Group, Inc., 529 U.S. 803 (2000), where the Court noted:
Our precedents teach these principles [w]here the designed benefit of a content-based speech restriction is to shield the sensibilities of listeners, the general rule is that the right of expression prevails, even where no less restrictive alternative exists. We are expected to protect our own sensibilities “simply by averting our eyes.”
Id. at 813.
[7] See Smolla, supra note 5, at 5-4.
[8] See Philip T.K. Daniel & Vesta A.H. Daniel, A Legal Portrait of the Artist and Art Educator in Free Expression and Cyberspace, 140 Ed. Law Rep. 431, 433 (arguing that strict liability and lack of constitutional protections on the Internet inhibit creative expression and art education in cyberspace).
[9] See Laura L. Stapleton & Matthew McMurphy, The First Amendment and Related Issues 13 (Dec. 2000), (visited Feb. 17, 2002) available at http://www.jw.com/articles/details.cfm?articlenum=119.
[10] See Marcy Strauss, Redefining the Captive Audience Doctrine, 19 Hastings Const. L.Q. 85, 86, n.6 (1991).
[11] See Louis D. Brandeis & Samuel D. Warren, The Right to Privacy, 4 Harv. L. Rev. 193, 195 (1890).
[12] See Strauss, supra note 10, at 86; Brandeis & Warren, supra note 11, at 210-11. Brandeis & Warren never specifically discuss a right not to see offensive art, but discuss the right of privacy as one which should be protected on very broad terms under the laws.
[13] See Strauss, supra note 10, at 86.
[14] Cohen v. California, 403 U.S. 15, 21 (1971).
[15] The Court rejected a captive audience theory inside one’s private residence. See FCC v. Pacifica Foundation, 438 U.S. 726, 748-49 (1978). In Pacifica, a person listening to a radio broadcast of comedian George Carlin’s “Seven Dirty Words” performance was not deemed a captive listener because the listener could have simply turned off or changed the radio station. Compare Frisby v. Schultz, 487 U.S. 474, 485 (1988) (“There is simply no right to force speech into the home of an unwilling listener”); Rowan v. United States Post Office Dep’t, 397 U.S. 728, 736 (1970) (“In today’s complex society we are inescapably captive audiences for many purposes, but a sufficient measure of individual autonomy must survive to permit every householder to exercise control over unwanted mail”).
[16] Schenk v. Pro-Choice Network, 519 U.S. 357, 383 (1997) (“There is no right to be free of unwelcome speech on the public streets . . . .”) (Scalia, J., concurring in part and dissenting in part).
[18] The Miller test is: (a) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value, (a) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. Id. at 24-25.
[19] See Eugene Volokh, Freedom of Speech and Appellate Review in Workplace Harassment Cases, 90 Nw. U. L. Rev. 1009, 1023 (1996).
[20] See Dawn Johnson, It’s 1996: Do You Know Where Your Cyberkids Are? Captive Audiences and Content Regulation on the Internet, 15 J. Marshall J. Computer & Info. L. 51, 62 (1996).
[27] 424 F.2d 988 (1st Cir. 1970), cert. denied, 400 U.S. 903 (1970).
[29] Id. at 989-90. The court remarked in closing, “With all due respect, this is a case that should never have been brought.” Id at 991.
[31] 836 F. Supp. 1230 (E.D.N.C. 1993), aff’d, 28 F.3d 1208 (4th Cir. 1994).
[32] Id. at 1232-33. The Claudio judge made little effort to hide his apparent disgust for the painting with comments like “visual horror” and “inarticulable inappropriateness” to describe the painting littered throughout the ruling. Id. at 1232, 1235.
[34] 759 F.2d 625 (7th Cir. 1985), cert. denied, 474 U.S. 1007 (1985).
[35] Id. at 627. Aristophanes was an ancient Greek playwright. Lysistrata is a comedy in which Spartan and Athenian women go on a sex strike to end the Peloponnesian War. See Merryman & Elsen, supra note 1, at 494.
[40] See Holocaust Info.net, Hitler’s Role in the Persecution of the Jews By the Nazi Regime, (visited Apr. 26, 2002), available at http://www.holocaust-info.net/long1.html. Hitler used terms such as “removal,” “resettlement,” “evacuation,” and “extirpation” to camouflage the genocide of the Jews. Id.
[41] See, e.g., United States ex rel. v. Radich, 385 F. Supp. 165, 179 (S.D.N.Y. 1974); Papish v. Univ. of Mo., 410 U.S. 667, 670 (1973); Gooding v. Wilson, 405 U.S. 518 (1972); Cohen v. California, 403 U.S. at 15; Street v. United States, 394 U.S. 576, 592 (1969).
[43] See 424 F.2d at 989; 836 F. Supp. at 1235.
[45] See Marcus C. Johnson, Let Freedom Reign, 53 Rutgers L. Rev. 485, 493-94 (2001) (commenting on how judges often find against artists if the artwork tends to lack political speech, which many jurists and commentators consider vital for First Amendment protections); Daniel Mach, The Bold and the Beautiful: Art, Public Spaces, and the First Amendment, 72 N.Y.U. L. Rev. 383, 411-12 (1997) (commenting that because political speech is necessary to the First Amendment mission, judges will often deny protection to the artwork if its viewpoint lacks a political message).
[46] See Volokh, supra note 19, at 1023.
[47] See Mach, supra note 21, at 410.
[48] See Hector Feliciano, The Lost Museum (Dec. 1998), (visited Mar. 10, 2002) available at http://www.bparis.com/newsletter1464/newsletter_show.htm?doc_id=6472&attrib_id=1947.
[49] See Roger Griffin, Nazi Art: Romantic Twilight or Post-modernist Dawn?, (visited Mar. 10, 2002) available at http://www.brookes.ac.uk/schools/humanities/Roger/NAZIART.htm, (reviewing Keith Hartley, The Romantic Spirit in German Art 1790-1990, 18 Oxford Art J. 103-7 (1995)).
[50] Id. The rejuvenation of Volksgemeinschaft coincided with the elimination of “degenerate” art, and included works which either depicted or were created by Jews, gays, communists/socialists, physically or mentally handicapped, and various “asocial” categories, including swing-music fans. Id.
[51] See Merryman & Elsen, supra note 1, at 439.
[52] See id. Representative Dondero was trained as a lawyer, and had no training as an art critic or in art theory or history. Id.
[53] See Hellmut Lehman-Haupt, Art Under a Dictatorship 78 (1954), in Merryman & Elsen, supra note 1, at 433. There was no specific definition for “degenerate” art, but obviously anything that did not propagandize the Nazi political and cultural machines fell into this category.
[54] See Griffin, supra note 49.
[55] See Merryman & Elsen, supra note 1, at 439-40.
[56] Compare William Hauptmann, The Suppression of Art in the McCarthy Decade, Artforum (Oct. 1973), at 48-52, in Merryman & Elsen, supra note 1, at 440 (Dondero said, “modern art is a term that nauseates me. No one is attempting to stifle self-expression, but we are attempting to protect and preserve legitimate art as we have always known it in the U.S.”), and Lehman-Haupt, supra note 54, at 433 (Hitler argued that modern art attacked the culture and national art treasures of Germany).
[57] See Merryman & Elsen, supra note 1, at 442. Hitler’s propaganda chief, Joseph Goebbels, systematically attacked the Bauhaus art form as anti-German. See Oskar Schlemmer, Letter to Minister Goebbels (1933), in Merryman & Elsen, supra note 1, at 438. William Randolph Hearst, closely aligned with Dondero, used his empire of newspapers and magazines to attack modern art as communist influenced artwork. See Merryman & Elsen, supra note 1, at 442.
[58] The Claudio court claims to rely upon United States v. Kokinda, 497 U.S. 720, 725 (1990), as the basis for its decision, but that case was decided by a plurality of the Court.
[59] See Stapleton & McCarthy, supra note 9, at 14.
[62] Id. at 1235 (“[The display] was so large and situated in such a location that anyone entering the building had to look at it”).
[65] See Capitol Square Review Advisory Board v. Pinette, 115 S. Ct. 2440, 2448 (1995).
[66] Id. (Scalia, J., concurring).
[68] Claudio v. United States, 836 F. Supp. 1219, 1222, aff’d, 28 F.3d 1208 (4th Cir. 1994).
[70] 241 F.3d 1067 (9th Cir. 2001), cert. denied, 122 S. Ct. 346 (2001).
[72] Id. at 1070. One of the banned works was a sculpture depicted a large, nude woman lying on a flat surface; her backside is to the observer. Id. at 1072. Another banned work was a series of linoleum prints which depicted a nude couple in silhouette and outline form against a variety of backdrops from post-war Germany, and in a variety of poses and embraces. Id.
[73] Id. at 1082, n.16 (“Given the location . . . of the banned works, we find no merit in the city’s theory that children and/or city employees were a captive audience”).
[77] See Strauss, supra note 10, at 104 (quoting Melville Nimmer, The Freedom of Speech, 1-33 (1984)).
[78] See Leslie Gielow Jacobs, Is There an Obligation to Listen?, 32 U. Mich. J.L. Ref. 489, 503-4 (1999).
[79] Id. at 539-40 (arguing that there is an obligation to listen to speech, even if that speech is offensive).
[81] See Strauss, supra note 10, at 101-3 (arguing that because there are no limitations on the captive audience doctrine, there are practical problems with determining the context of the doctrine).
[82] See Lawrence Lessig, Cyberspace Prosecutor, Feb. 21, 2000, (visited Mar. 19, 2002), available at http://lessig.org/content/standard/0,1902,10885,00.html. The Internet was designed to allow a free flow of information. Id.
[83] See D. Johnson, supra note 20, at 90-93 (arguing that the Internet cannot be regulated because it is a global computer network).
[84] See Mach, supra note 45, at 409-10.
[85] See Strauss, supra note 10, at 103.
[87] Id. But see Richard Delgado, Words That Wound: A Tort Action for Racial Insults, Epithets and Name Calling, 17 Harv.-C.R.-C.L. L. Rev. 133, 175 (1982) (arguing that racial insults make an audience captive, whereas one cannot avert their ears).
[88] See Marci A. Hamilton, Art Speech, 49 Vand. L. Rev. 73, 109-10 (1996) (“No less than any other mode of expression encompassed by the Speech Clause, art is the lifespring of liberty in the face of representative democracy”).