Scott Forsyth, The Daily Record Newswire
This is a story about a story. Both stories are true.
The initial story began and continues in the city of Overland Park, the largest suburb of Kansas City. The city owns and operates an arboretum. Throughout the grounds are pieces of sculpture.
One piece depicts a fractured, topless woman taking a photograph of her missing head. The artist sought to show how social media and technology in general can make us view others as parts separated from the human whole.
Unfortunately, one mother focused on one part, the exposed breasts, and deemed the art inappropriate for her children. When her complaints to the city fathers fell on deaf ears, she turned to the American Family Association.
To the AFA the sculpture glorified sexting (even though the camera is clearly not pointed at any sexual organ) and was obscene. The promotion of obscenity to minors happens to be a crime in Kansas. So what did the AFA do? It circulated a petition to convene a grand jury for the purpose of determining whether the sculpture was obscene.
Kansas differs from New York. Here the district attorney acts as a gatekeeper to the criminal justice system. In Kansas, private citizens can force the empaneling of a grand jury for any purpose, bypassing the district attorney. The grand jury may even hire special counsel to lead its investigation.
The AFA amassed more than 4,000 signatures and the county had to empanel a grand jury. Wisely, the grand jury did not find the sculpture obscene. But the effort did cost the city $35,000. Worse, the AFA has not given up. It is circulating another petition.
The Free Speech Clause protects the sculpture. Something is obscene only if it (1) appeals to the prurient interest, (2) depicts in a patently offensive way sexual conduct, and (3) “lacks serious literary, artistic, political, or scientific value,” Miller v. California, 413 U.S. 15, 24-25 (1973). That is a high standard for the government to meet.
The AFA does not say whom the grand jury should indict, just that the “alleged violation” was the “sculpture” itself, a non sequitur. Was the artist to blame for sculpting a half-naked figure? If so, what does that mean about the many artists who paint or sculpt fully-naked figures? Or was the city the suspect for displaying the sculpture in a public place? If so and if found guilty, how does a court sentence a city?
The identity of the defendant aside, making art the subject of a criminal proceeding will chill future artistic expression and future patronage of that expression.
An ACLU attorney described all of the above in a blog, which leads to the second story. The blog contained a photo of the sculpture. The ACLU posted the blog to Facebook on a Friday. Guess what happened? On Sunday, Facebook deleted the post.
Then on Tuesday, Facebook blocked the ACLU from posting anything for 24 hours. It thought the ACLU had reposted the article, which it had not.
Facebook notified the ACLU that the article about the controversy in Overland Park and in particular the photo “violates our Community Standards.” The standards prohibit “the sharing of pornographic content and any explicitly sexual content where a minor is involved.” Excepted is “content of personal importance,” such as “photos of a sculpture like Michelangelo’s David.”
Whether the partially-nude sculpture in Overland Park rises to the level of the totally-nude David is a matter of personal taste. But the Overland Park sculpture is not obscene, is of personal and political importance, and is now newsworthy. What is newsworthy should go up and stay up on Facebook.
Getting a deletion reversed is tough. The notice from Facebook did not offer the ACLU a method for appealing the decision. Using the generic contact form resulted in a generic email that Facebook “can’t respond to individual feedback emails.”
Undaunted, the ACLU identified and wrote Facebook’s public policy manager. He immediately apologized for the “error” and restored the post.
The ACLU’s experience is disturbing. Social media has become a popular soapbox for the expression of ideas. As a result private entities, like Facebook, are gaining government-like power to impose societal norms on the content of social media. In the exercise of that power the entities have made and will continue to make mistakes.
The mission of Facebook is to “make the world more open and connected,” one of the policies behind the Free Speech Clause. Thus, Facebook initially should err on the side of leaving content up, even when the content may offend somebody. When Facebook does take down an item, it should provide the speaker with an easy-to-use appeal mechanism.
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Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.
