Who's Watching Big Brother?
by Liz Highleyman
In this issue:
On June 25, the Supreme Court ruled that the government may deny funding for work that is considered "indecent," and that such content-based restrictions do not violate artists' First Amendment free speech rights. Specifically, the justices ruled that the National Endowment for the Arts (NEA) may consider "decency" along with artistic merit in deciding what art to fund. The Court's ruling was advisory only.
In 1990 Congress enacted a "decency" standard following controversy over works by artists including Robert Mapplethorpe and Andres Serrano. The case against the law was originally brought by "the NEA Four" -- Karen Finley, John Fleck, Holly Hughes, and Tim Miller, artists who were denied NEA funding. Fleck, Hughes, and Miller are gay, lesbian, or bisexual; all four incorporate queer or feminist themes in their work.
In 1992, a federal judge struck down the law as unconstitutional. Northern California's Ninth Circuit Court of Appeals upheld the ruling, finding the standard overly vague and a violation free speech. The U.S. Department of Justice then appealed the ruling to the Supreme Court.
The Supreme Court justices voted 8-1 in favor of the content restrictions. Writing for the majority, Justice Sandra Day O'Connor stated that Congress may "selectively fund a program to encourage certain activities it believes to be in the public interest." According to Justice Antonin Scalia, who favored a stronger pro-decency stance, "Congress did not abridge the speech of those who disdain the beliefs and values of the American public." He added that artists may "exercise their right to express themselves by urinating on stages and smearing themselves with chocolate. They just cannot expect the public to pay for such affronts to its sensibilities."
The ruling was opposed only by Justice David Souter, who said that the law is "substantially overbroad and carries with it a significant power to chill artistic production and display."
On the same day the Supreme Court delivered its ruling, the House of Representatives Appropriations Committee restored funding for the NEA. The House had previously voted in June to deny funding for the agency, but the decision was reversed after five moderate Republicans switched sides and voted with the committee's Democratic majority.
On July 21, the full House upheld the committee's decision by a decisive 253-173 vote. Several previous opponents supported NEA funding this time around, acknowledging that the NEA had undergone substantial reform. The House agreed to provide $98 million for the NEA for fiscal year 1999, equal to the funding for the current year.
In May, South Africa struck down laws against sodomy, unnatural sexual offenses, and acts stimulating sexual passion or giving sexual gratification between "two men at a party." Judge Jonathan Heher of the Johannesburg High Court, who handed down his ruling on the second anniversary of the new South African constitution, said that the laws were unconstitutional.
National and international gay rights groups hailed the decision, and the African National Congress declared that the judgment "represents a significant milestone in the alignment of South Africa's laws with the basic human rights contained in the constitution's Bill of Rights."
Meanwhile, in June, Romania's Chamber of Deputies rejected a proposed amendment to the penal code that would have decriminalized homosexual sex. Although the amendments were favored by the party in power, the measure failed by five votes because some members of the ruling coalition were not present for the vote. Justice Minister Valeriu Stoica said that the amendment would be resubmitted this fall.
Back in the United States, the Rhode Island legislature voted to overturn that state's law against "abominable and detestable crimes against nature," while an Arkansas judge ruled in June that a lawsuit against the state's sodomy law can go forward. The Arkansas law applies to oral and anal activity among members of the same sex. Proponents of the law had argued that the law imposes no real injury on those who engage in homosexual sex.
The Lambda Legal Defense and Education Fund, which is representing the plaintiffs, has also recently helped to overturn sodomy laws in Kentucky, Montana, and Tennessee.
Finally, in Puerto Rico, the ACLU filed a lawsuit challenging the constitutionality of the commonwealth's sodomy law that criminalizes "crimes against nature" committed by members of the same sex.
Terrence McNally's most recent play-in-progress, Corpus Christi, is on the boards again after New York City police promised to provide increased security for those involved in staging the production.
The Manhattan Theater Club announced in May that it would cancel the show after protests spearheaded by the Catholic League for Religious and Civil Rights. The play presents an alternative interpretation of the life of Jesus Christ, in which a Christ-like character named Joshua has sex with his disciples. McNally is best known for his play Love! Valour! Compassion!
Opponents claimed that the show is religiously offensive. The Catholic League warned that if another theater attempted to stage the canceled play it would "wage a war that no one will forget." Manhattan Theater Club artistic director Lynne Meadow said that the play would be closed for safety reasons after threats that the theater would be burned down and the staff and McNally would be killed.
The theater's decision was decried by several well-known playwrights including Tony Kushner and Athol Fugard, who threatened to withdraw his work from the theater in protest. Kushner has seen his own play, Angels in America, canceled by homophobic forces. According to Kushner, "This is a medieval notion that the arts in the U.S. need to follow the Roman Catholic theological line."
In San Francisco, the queer press differ over the appropriateness of the San Francisco Examiner's decision to run an ad by religious conservatives claiming that homosexuals can change their sexual orientation. The "ex-gay" ad ran in several papers throughout the United States. The paper accompanied the ad with an editorial opposing the ad's claims.
Openly gay city supervisor Tom Ammiano has asked the paper to donate the money it received from the ad to a gay organization.
SF publications The Bay Area Reporter and the new Spectrum newspaper claim the Examiner was within its rights to run the ad, and said that a policy of refusing ads based on content could be detrimental to queers. The Bay Times stood firmly against the ads, asserting that no paper would run an ad by the Ku Klux Klan attacking African Americans, and that freedom of speech does not necessarily equal the obligation to accept paid advertisements.
SF Frontiers did not take a firm stance, noting that the issue is complex and bears careful consideration. Editor Lauren Hauptman encouraged readers to consider whether the queer community should favor censorship measures the community would oppose if they were used against us... even if "we are right and they are wrong."
The American Civil Liberties Union (ACLU) is backing a group of Alabama women in their federal lawsuit against a state law that bans the sale of sex toys. The law, which took effect in July, makes it a crime to sell or distribute "any device designed or marketed as useful primarily for the stimulation of human genital organs." The misdemeanor can bring violators a maximum penalty of a $10,000 fine and a year in jail. Simple possession of such devices remains legal.
Plaintiffs include Sherri Williams, who owns two stores that sell such toys, and B.J. Bailey, who sells sex toys at home-based parties. The two are joined by several women who claim that they require sex toys in order to achieve orgasm.
According to the ACLU, the ban is an invasion of privacy and "a misguided attempt to impose a moral viewpoint on adults."
Liz Highleyman is a freelance journalist and health educator. She is associate editor of the anthology Bisexual Politics: Theories, Queries and Visions (Haworth Press, 1995).
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