Free Speech and Property Rights: Censorship in the Arts
The essay below, Free Speech and Property Rights: Censorship in the Arts, was written by artist and educator Charles Gaines, in response to the recent events concerning artistic speech at the National Portrait Gallery, the Museum of Contemporary Art in Los Angeles, and the Gagosian Gallery in New York City. In this essay, Gaines explains how artists, art media sources, and art institutions should combat the silencing of artistic expression through means other than law. The reader will notice that we have included the short version on the front page of this website, and the longer version below.
Gaines has graciously agreed to publish his essay with Clancco.com, with the hope of using his essay as a petition statement from artists, writers and art viewers to be sent to museums and galleries. In this light, we hope you will sign-on to this petition. You may access the petition form and list here.
Free Speech and Property Rights: Censorship in the Arts (short version)
-Charles Gaines, January 2011
- Freedom of speech: an idea that government cannot censor or punish you because of your expressed opinion. The problem today is that it is not only government but also institutions such as corporations, museums, and galleries that are involved in censoring speech.
- When the National Portrait Gallery at the Smithsonian removed David Wojnarowicz’s work from its show Hide and Seek, and the Museum of Contemporary Art in Los Angeles painted out Blu’s anti-war mural, artists and others who have an interest in free speech protested. But in this protest we find two separate interests: one, art as a humanistic discipline, that when coupled with freedom of speech gives us the capacity to realize our full potential as human beings, and two, our interest in protecting property, which points to questions concerning the ownership of works of art. We understand that as artists we speak through the objects we produce and we believe we own that speech even if someone else owns the object.
- Artists and institutions are increasingly using law as a weapon to protect free speech. But they are beginning to realize that this action is actually contributing to the demise of art. As in the Mass MoCA v. Buchel case, these aggressive legal maneuvers and lawsuits are affirming more and more that art has to be considered property in matters of free speech, and this moves the idea of art away from philosophical or moral principles into one of property rights.This brings the realization that the law cannot resolve this alone.
- The alternative solution is to fight these patterns of censorship through political organizing. We will follow the example of the civil rights movement and come together to make our arguments to museums such as the Smithsonian and MOCA, and galleries such as Gagosian on moral and ethical grounds and not rely only on law. In this way we can fight for principles we deem important even if not protected by law..
- We understand the deeply troubling problems the recent events around free speech and censorship have raised. We ask that our institutions of art demonstrate their understanding of this and rethink their relationship to art and artists, and to consider the damage censorship and the silencing of speech does.
- We understand that the law negotiates the idea of art in terms of property rights, and if we only use the law as a tool to fight censorship or protect property rights, we will only intensify the present trend of art as commodity. This undermines what is important about art: that it expands our knowledge, deepens our understanding, and enriches our experiences. Art has a long history of contributing to our social, cultural, and political lives and this history should not be negated by actions that oppress the free exploration of ideas. We will use negotiation as the means to influence institutional practices around censorship in order to preserve these things that make art important to society. We ask our institutions to do the same, to look beyond their legal rights as autonomous agencies and help us protect the idea of art.
- We ask our institutions to make public declarations and include in their mission statements language that demonstrates their commitment to free speech and anti-censorship policies. We ask for this to preserve art and its legacy.
Free Speech and Property Rights: Censorship in the Arts (Long Version)
Charles Gaines, January 2011
Freedom of speech: an idea that government cannot censor or punish you because of your expressed opinion. The problem today is that not only government but also institutions such as corporations are involved in censoring speech. So when the Smithsonian decided to remove the Wojnarowicz work, and the Museum of Contemporary Art in Los Angeles decided to paint over Blu’s anti-war mural, artists and others who have an interest in free speech protested. But in this protest we find two quite separate interests scrambled together like an omelet confusing our understanding: our interest in protecting art as a humanistic discipline, that freedom of speech (action and expression) gives us the capacity to realize our full potential as human beings, and our interest in protecting property, which points to questions like who owns this work of art. We understand that often we speak through the objects we produce and we believe we own that speech even if someone else owns the object (property rights questions).
Because of our failure to understand the difference between these two interests, our protests over censorship have been inconsistent in their foundation. Examples ranging from Büchel, Finley to Blu demonstrate this lack of understanding: in the first instance Büchel‘s lawyers claimed he was censored because by showing an unfinished work without his permission, he was being forced by Mass MoCA to speak what he did not want to say; and in the second case, it was decided that Finley was not censored because the government has no responsibility to fund art works and by funding Finley, it was acting “as patron, not as sovereign.”  Many were outraged by both the federal court’s decision in the Büchel matter and the Supreme Court’s decision regarding Finley, not because free speech protection was not afforded, but because it did not resolve the conflict between the two interests of human and property rights. Artists felt the courts were wrong, just like it was wrong for the Wojnarowicz work to be removed. But they also know that the Smithsonian had the right to remove it. So they protested anyway knowing that with respect to art, something deeper than the rights of the Smithsonian has been violated. It seemed that the law was the sole way to resolve this conflict.
Artists and institutions are increasingly using law as a weapon to protect free speech. But they are beginning to realize that this action is actually contributing to the demise of art. As in the Büchel case, these suits are affirming more and more that art has to be considered property in matters of free speech, and this moves the idea of art away from philosophical or moral principles. (In both cases, the rulings were based on property rights). This brings the realization that the law cannot resolve this alone. So instead, artists should call for the art institution (museum, gallery, periodical) to rethink its relationship to the arts and to artists, and they should do this for philosophical/ethical reasons and not for what is permitted by law. They should pledge a commitment to the idea of art, and consider when censoring speech the damage this would do.
Although many people, artists included, think of free speech as a concept under the heading “person”, the constitution makes no such distinction. In fact the issue of personhood was not established until 1857 in the Dred Scott case where Chief Justice Roger Taney infamously ruled that black persons could never be citizens of the United States and therefore had no right to constitutional protection. In this decision, personhood helped establish the status of citizen, who had constitutional rights and who didn’t, rights such as free speech. But the constitution otherwise considers rights in terms of property. Accordingly, there is no difference between a person as a “real” human being, and a corporation, both have free speech protection. And this is where we find in the minds of many the mixing of philosophical and legal constructions. In fact, Property Rights has been the basis of the argument made by some that it was proper for the Smithsonian and MOCA to limit speech. They claim that these museums are not arms of the government, who in fact can punish speech by making it illegal. Thus the idea of property made it possible to give personhood status to both a human being and an institution without distinction. Regulation is expressed through property, not through being a person (Dred Scott notwithstanding). For example, discrimination laws were enacted through the Commerce Clause of the Constitution where we find a limit to free speech. The government can regulate private agencies in order to keep them from discriminating against blacks, women, etc. Thus a private agency can be regulated based on interstate commerce, not based on human rights alone. However, in the minds of artists, their free speech protection should be based on human rights and morality. Nevertheless, the difference between human rights and property rights remain muddled for many. And in spite of their commitment to the ideas of human rights, they seek redress through law and property rights.
Speech is linked to property rights law because speech and property are both protected by the Constitution in both the 1st and 5th amendment respectively. Speech and property fall under “persons” in the constitution probably because of the founding fathers’ experience with the British: they determined that one of our freedoms was the right to own property. About 150 years later we find that this idea of private property collides with the Universal Declaration of Human Rights (1948) which says that “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” 
In the American Constitution we find such frontiers (or limits) to speech, among those is property. Is this a case where a capitalist doctrine conflicts with a democratic one? There is no right to use one’s speech to prevent the speech of others. The only location that such a conflict can occur is between the right to free speech and the right to own property. We can see that the issue of free speech is actually determined by the public/private debate in the Constitution where the property wherein the individual acts can or cannot be regulated depending upon whether it’s public or private. Does a person have an inherent right to free speech? Actually, the Constitution gives this right to its citizens but finds it necessary to regulate it, not just to protect it. In general, a person’s right to free speech is not inherent but given in law. And since governments pass laws, it can protect or regulate speech as a right in situations over which it has jurisdiction. It appears that this regulation and protection can only happen in the public sphere, the government has no jurisdiction over the private sphere and can neither regulate or protect speech there. But jurisdiction is a matter under some debate, making the public/private distinction messier. (A good example of this is found in lawsuits to protect academic freedom) In most cases, the law tries to determine who the owner of that speech is and whether it is a public or private location (a company, club, institution, organization, etc.). An expression of an individual is not just speech but a matter of ownership; that expression may be the property of the expresser or an institution that, for example, she may work for. The law tries to determine whether this ownership is public or private in order to determine jurisdiction. In this way the public/private divide plays a major role in fuzzying the distinction between individual speech and property (the conflation of speech rights and property rights).
The conflict between Human Rights and Property Rights that we see in comparing the American Constitution and the Declaration lies originally in Miltonian ethics where he argued that the government should not limit speech by licensing institutions of speech (not individuals). Such licensing would give the government the authority to punish speech. Milton was arguing against the licensing of printers (publishers), he was not offering a defense of property rights. However, this conflation found its way into the American Constitution. In part, the first amendment says, “Congress shall make no law […] prohibiting […] freedom of speech, or of the press; or the right of the people peaceably to assemble….” The unintended legacy of Milton may be the idea that the ownership of property constitutes expression.
This legacy allows, for example, the New York Times to censor speech through its editorial practices, or the Larry Gagosian Gallery to forcefully remove peaceful demonstrators. The right by the Times and the gallery to constrain speech cannot itself be constrained by the government because that would be tantamount to the constraint of speech through the takeover of private property. Even thought the driving principle in the case of the Times is property, the idea of the press in the 17th century was not the same as the idea of property. A fuzzying of the difference between speech and property perhaps began with Milton but, as we have argued, continued in the American Constitution under the banner of “persons.” Accordingly, The New York Times is a private institution that has the right to protect its property under property rights. Does it also have the right as a “person” to protect its speech under speech rights? And under which is the Times allowed to limit the speech of others? Is speech property? Are they separate rights? The idea here is that speech and property create an indissociable space that the idea of unprotected speech does not settle. The conflict between these two principles goes unnoticed by many who have written about art and free speech.
Mat Gleason is lost in the fog of this difference between speech and property as he tries to argue that the Smithsonian’s decision to remove the Wojnarowicz work cannot be compared with MOCA’s paint-over of Blu’s mural. Gleason argues that the Smithsonian, as a public institution can be defunded by the government for political expression, but MOCA cannot. MOCA is not a case of censorship because property rights law trumps the free expression of individuals. This should demonstrate the difference between the two. But Gleason argues that the Smithsonian is a case of constraints upon “curatorial freedom.” His argument seems to be based on the idea of “persons” and not property since government has authorized the Smithsonian through funding, this makes it a government agency, and the old Miltonian principle should be applied to constrain government because some people might see funding as a form of licensing of personal expression. He is possibly trying to make the Miltonian argument that government should be neutral in its funding, not partisan in the 1st amendment area of speech. (see Finley).
He misses the point by using the “persons” argument because although he used it to defend the supporters of Wojnarowicz, he couldn’t do it by defending the institution’s right to free expression, since the institution expressed itself freely in the removal of the work. He probably saw a complication in using the property rights argument since the Smithsonian is government property, not private. The question today is what can we do about the continued abuse of the Miltonian idea by those who believe that the property rights and human rights (as defined by the Declaration) are the same?
A case against this abuse can be made based on the effect that a new and unconsidered concept, the corporation, has on these ideas. This is a concept that the founding fathers could not have even imagined. Since, according to them, the corporation could not have been what they meant by person, this is enough to reconsider the saliency of the “persons” argument used to settle the difference between speech and property. The corporation can restrict expression in the same way that the government can, not by laws but by the removal of the agencies of expression, which it controls. In addition, we have the new partnership of government the corporation. Under these considerations it is difficult to make the argument that there is a separation between government and private property, which, if private property interests control government policy, aren’t we, as Chris Hedges argues, becoming an oligarchy? And in this case, the interests of government and the interests of corporate America are identical. And who is left out of this equation? The person.
When the 1st Amendment conflated press, persons and property, the Miltonian belief was that those who published information were persons whose interest was the free expression of ideas was expanded to include corporations whose interest was the maximization of profit. The 1st amendment was arguably developed from an Enlightenment principle nascent democracies had about what it meant to be a person (human). This is an idea that the free flow of information enhanced our humanness, it brought about knowledge and understanding. It was not intended to increase property value. Besides, it is not possible to make a corporation human; it does not have a mind in order to comprehend knowledge. But since the press is now corporate, the word “press” doesn’t mean what it meant to Milton, nor to the framers of the Constitution. It has morphed into an idea of person through the conflation that the government cannot take a person’s property nor constrain his speech. The unfortunate consequence of this is that the amorality of “laissez-fare” economics is argued to be the same as or part of the search for truth that the Enlightenment argued to be fundamental to being human.
The remarkable difference that actually exists between these two ideas is no better expressed than in the Julian Assange WikiLeaks story, where the cooperation of international corporations and governments have come together to silence his speech (by suggesting what he is doing is not protected speech). Also we have the events surrounding an Anselm Kiefer exhibition at the Gagosian gallery in New York. (See “Gagosian Gallery pulls a Smithsonian”, by Mira Schor). The article commented on the forceful removal of demonstrators from the gallery by the New York Police Department. Laurie Arbeiter, an anti-war activist who witnessed the event commented on the brutal way the demonstrators were removed. Arbeiter, outraged by the violence of the police, said to a gallery employee that she “…thought we were in the realm of ideas inside the gallery space to which [the gallery employee] replied that it was a private gallery in the business of selling art and that they wanted us to leave.” Running through these arguments is the same conflict between speech and private property that Milton saw between speech and government. And there is no better expression of their differences in spite of the arguments to the contrary.
In this muddled field it should be clear that the primary principle is that of Free Speech, the speech of individuals, not the corporation. And we should keep in mind the purpose of free speech; to give to the citizen the tools to self govern and achieve the full realization of their human powers. We should not confuse this right with the right to own property. To this end we should concern ourselves with the question, how can individual speech be protected even when not only the government but also the corporation seek to limit it? The Gagosian incident reflects the problematic history of the attempt to control peaceful protected and unprotected political speech. From the Alabama bus boycotts to the anti-war protests and beyond, violence and terror have been used to squelch dissent. The purpose was and still is to make us afraid. Shouldn’t at least non-violent unprotected speech be itself protected from violence? Also, Jeffrey Deitch at MOCA and the Smithsonian certainly have the responsibility to control and edit what a museum exhibits, but do they have the moral right to constrain opinion once asked for? Or better yet, we as artists and art fans can ask the museum not to say to an artist, you can show here as long as you show what I feel is morally and politically acceptable.
The alternative solution is to fight these patterns of censorship through political organizing. We will follow the example of the civil rights movement and come together to make our arguments to museums such as the Smithsonian and MOCA, and galleries such as Gagosian on moral and ethical grounds and not rely only on law. In this way we can fight for principles we deem important even if not protected by law. We understand the deeply troubling problems the recent events around free speech and censorship have raised. We ask that our institutions of art demonstrate their understanding of this and rethink their relationship to art and artists, and to consider the damage censorship and the silencing of speech does. We understand that the law negotiates the idea of art in terms of property rights, and if we only use the law as a tool to fight censorship or protect property rights, we will only intensify the present trend of art as commodity. This undermines what is important about art: that it expands our knowledge, deepens our understanding, and enriches our experiences. Art has a long history of contributing to our social, cultural, and political lives and this history should not be negated by actions that oppress the free exploration of ideas. We are using negotiation as the means to influence institutional practices around censorship in order to preserve these things that make art important to society. We ask our institutions to do the same, to look beyond their legal rights as autonomous agencies and help us protect the idea of art. We ask our institutions to make public declarations and include in their mission statements language that demonstrates their commitment to free speech and anti-censorship policies. We ask for this to preserve art and its legacy.
Charles Gaines received his BA from Jersey City State University and his MFA from the Rochester Institute of Technology. He has had over 60 one-person shows and several hundred group exhibitions in the US and Europe. Upcoming exhibitions include; All Of This And Nothing, Hammer Museum Invitational, curated by Anne Ellegood and Douglas Fogle, Los Angesles, (Jan. 2011); Now Dig This! Art and Black Los Angeles 1960 – 1980, Curator: Prof. Kellie Jones, Hammer Museum, 12011; State of Mind/Art from California Circa 1970, Berkeley Art Museum and Orange County Museum of Art, co-curated by Constance Lewallen and Karen Moss, October 2011; CALIFORNIA über alles / ART in the Age of Pluralism: 1974-1981, Paul Schimmel, curator, 2010, Museum of Contemporary Art, Los Angeles; Other exhibitions include: ”The Artist Museum”, Museum of Contemporary Art (MOCA), Los Angeles, October 2010; Collection: MOCA”S First Thirty Years, Museum of Contemporary Art, Los Angeles, CA November 15-May 3, 2011; Man Son 1969, Vom Shrecken der Situation, Galerien Der Stadt, Esslingen, Villa Merikel/Bahwärterhaus, Esslingen Am Neckar, Germany, March 2010; Noir Complex, curated by Maik Schleuter, Magazin 4, Bregenzer kunstverein, Bregenz, Austria, 2010. He was included in the Venice Biennale (2007), the Triennale der Photographie, Hamburg (1999) and Esslingen (2004), and the Whitney Biennial (1975). He is represented by Susanne Veilmetter Los Angeles Projects; Kent Gallery, New York; Brigitte March Gallery, Stuttgart. He is in the collection of the Museum of Contemporary Art, Los Angeles; Museum of Modern Art in New York; Whitney Museum, New York; Los Angeles County Museum (LACMA), Studio Museum, New York; San Diego Museum of Art, San Diego & La Jolla, Calif.; Museum of Contemporary Art, Chicago; San Franciso Museum of Modern Art, San Francisco; Oakland Museum, Oakland, CA., Lentos Museum, Linz, Austria; Galerie der Stadt Esslingen, Esslingen, Germany; Villa Merkel, Esslingen, Germany, Lenbachhaus, Munich, Germany. Awards include American Academy of the Arts Purchase Award (2009); United States Artist (2007); Norton Family Foundation grant (2007); the Adoline Kent Award (2001), National Endowment for the Arts (1975). Charles Gaines monograph published by Charta, ed., Horace Brockington, will be released in 2011.
He has published “Theater of Refusal: Black Art and Mainstream Criticism” (Univ of Cal, Irvine, 1993); “Art, Post History and the Paradox of Black Pluralism.” Merge, vol.12, 2004, p. 52; “The New Cosmopolitanism: Preeminence of Place,” California State University, Fullerton, March, 2008; “Reconsidering Metaphor/Metonymy: Art and the Suppression of Thought,” Art Lies, Issue 64, Winter/2009, “Ben Patterson: The History of Gray Matter From the Avant-Garde to the Postmodern,” catalog essay, Contemporary Arts Museum Houston, November, 2010.
He is currently a faculty member at the California Institute of the Arts School of Art.
 http://www.artquest.org.uk/artlaw/copyright/basics-of-moral-rights/christoph-buchel-v-mass-moca.htm, January, 2011,
 www.cklawreview.com/wp-content/uploads/vol82no1/Chambers.pdf, January, 2011
 www.huffingtonpost.com/…gleason/moca-blu-street-art-white_b_796315. html, January, 2011