Free Speech and Property Rights: Censorship in the Arts

• 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.

-Charles Gaines

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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[1], 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.” [2] 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.

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