“I firmly believe that any depiction of art featuring a nude child with exposed buttocks or genitalia is inherently exploitative and harmful to the child involved,” the filer of House Bill 3958, Rep. David Lowe, said to the Observer in an email. “The bill was introduced because the protection of children is paramount, and I am committed to doing everything within my power to safeguard them.”
The bill, filed on March 6, would create a civil penalty of up to $500,000 per artwork per day for "museums that display certain obscene or harmful material.” The bill also allows courts to order the immediate and indefinite removal of any artwork.
Tarrant County Judge Tim O’Hare ordered an investigation of the museum over the photographs, but a grand jury neglected to take action, and the photographs were reportedly returned to the Modern. The exhibit ended on Feb. 2.
The photographs, shot by renowned photographer Sally Mann, were part of a larger exhibit at the Modern and featured nude images of the artist’s own children, which were originally shot in the ‘90s. The candid images of the small children were captured on the Mann family’s farm in rural Virginia and were described by the Modern as “lush portraits that are intimate and compelling.”
The images depict her children naked and free on the isolated range in full-frontal nude shots, but Lowe said the images were a far cry from art.
“The situation involving actual nude photos of minors, not mere artistic depictions, displayed at the Modern Art Museum of Fort Worth spurred me into action,” said Lowe. “We must dedicate ourselves to protecting children from any institution that might seek to harm or exploit them under the pretense of art.”
How We Got Here: Conservative Christian Backlash
The uproar about Mann’s Fort Worth installation began in late December when the Dallas Express, a right-wing media outlet, published a salacious story covering the exhibit. Soon after, The Danbury Institute, a collection of churches “promoting Judeo-Christian values” with an office in Dallas, wrote an open letter to the Modern and started a petition calling for the photos' removal.“These images are presented under the guise of art, but in reality, they sexualize children and exploit their innocence,” The Danbury Institute wrote in an open letter to the Modern. “This exhibit should be called what it is: child pornography.”
The institute claims that because Mann’s children could not legally consent to being photographed, they were the subject of sexual abuse.
“There is no good to come from victimizing a minor child who cannot consent to having a nude photograph taken or shared or from presenting that private image in an intentionally public setting,” H. Sharayah Colter, chief communication officer for the Danbury Institute, wrote in an email to the Observer. “The Danbury Institute stands with the thousands who were appalled by the grotesque display of naked children in the Fort Worth museum exhibit and who were indignant to learn that anyone would classify such exploitative content as 'artwork.'”
In early January, the Fort Worth Police seized five of the 21 images of Mann’s in the exhibit entitled Diaries Of Home. The exhibit also featured the intimate works of a handful of female and nonbinary artists displaying “the multilayered concepts of family, community, and home,” as described by the Modern.
The five works—"Popsicle Drips," "The Perfect Tomato," "The Wet Bed," "Another Cracker," and "Cereus"—all featured Mann’s children fully nude. A sign at the start of the exhibit warned of potentially mature and sensitive themes “that can be raw and unsettling.” But still, critics linked the photographs to abuse and pedophilia.
“This characterization is morally unacceptable, and the exhibit as a whole effectively works to normalize pedophilia, child sexual abuse, the LGBTQ lifestyle, and the breakdown of the God-ordained definition of family,” wrote the Danbury Institute.
The First Amendment and Obscenity
The investigation into the Modern on the grounds of obscenity proved futile. Exceptions to obscenity charges are extended to artists and the museums that display their works by the First Amendment guarantee of freedom of speech and backed by a long history of Supreme Court decisions. The Texas Penal Code adopts the federal standard for obscenity exemptions granted to bodies of work with “serious literary, artistic, political, and scientific value.”“While some may find the images inappropriate, that does not strip them of the First Amendment protection afforded to artistic expression,” the Foundation for Individual Rights and Expression wrote in a letter obtained by the Observer and addressed to the Fort Worth Police Department about the seizure.
Amy Werbel, a professor of art history at the Fashion Institute of Technology, says that bills similar to Lowe’s are not infrequent.
“In the past, when you look at efforts to police American culture, it's not incredibly unusual for this attempt to use civil penalties as a sort of regulatory scheme to get around the First Amendment, which is really pretty clear that something like nudity on its own would not be cause for a criminal prosecution,” said Werbel.
Aside from the censorship of art and the infringement of Constitutional rights, Werbel says laws like these are simply unenforceable even if they do pass.
“All these times where there are sort of moral panics, these obscenity bills sort of come to the fore, and it's like, “We're going to clean up America,” she said. “And they always end up facing the same kinds of challenges, which are that to enforce them really requires a level of overreach that most people in the past have felt is not really a good use of their taxpayer dollars and is not really what they expect the government to do.”
Werbel says that in an effort to improve our country, lawmakers like Lowe forget the founding principles of the United States and the integrity of the First Amendment.
“We shouldn't underestimate the exceptionalism of our First Amendment, not only in law, but also in culture and traditions and our civil liberties. Laws like this threaten our basic civil liberties as Americans. They should be rejected as un-American, fundamentally un-American, going back to the founding of this country and what it was supposed to mean.”
Artful Discomfort Is Valuable
Obscene materials, as defined by the Texas Penal Code, are any “offensive representations or descriptions of masturbation, excretory functions, sadism, masochism, lewd exhibition of the genitals, the male or female genitals in a state of sexual stimulation or arousal, covered male genitals in a discernibly turgid state or a device designed and marketed as useful primarily for stimulation of the human genital organs.”Nudity, beyond sex and intimacy as part of the human experience, has influenced art since pre-Biblical times. Nude stone figures, particularly erect ones, were a common theme in Greco-Roman art. There’s even a phrase for the engorged phallus commonly painted in Renaissance and Baroque depictions of the crucifixion of Jesus Christ, “ostentatio genitalium”.
“[Nudity in art goes] back thousands of years, [and then became] narrative frameworks for the development of Western literature and art,” said Werbel.
While Mann’s artwork does not fit within the qualification of obscene as decided by the courts, an unimaginable body of work certainly could. Particularly litigious judges could impose civil penalties against museums easily adding up to tens of millions of dollars.
It seems counterintuitive to charge a museum for displaying art. The argument stands that controlling the display of art to protect patrons from obscenity is negated by the freedom of choice to attend museums, says Jillian Wendel, an art education master's student at the University of North Texas and an arts professional in Dallas. Wendel also curates the Shed Show, a backyard art project that rotates the work of local artists.
"Guests, whether they know what they're coming to view or not, always have the individual power and decision to view the art or turn away and leave at any time,” said Wendel. “I don't believe that artistic works involving nudity, intimacy or sex are subjecting any museum attendees, whether they're adults, teens, or children, to obscenity; it's quite simply up to the individual viewers' discretion."
But even if they do, Werbel says a crux of art is discomfort.
“I really see the ability to look at art, even art we don't like, and maybe especially art that we don't like, as kind of fundamental to bringing together, to bridging the divide, to having a kind of civic discourse in which we can come together. That’s pluralism. That’s “We the people.”
An Impending Culture War
Throughout history, art has been an early and easy target for politicians to weaken the identity of a community. Less than a hundred years ago, thousands of pieces of art were destroyed for being “degenerate” under Adolf Hitler’s Nazi regime. While history may not be repeating itself, the censoring of artwork sends a clear message, says Werbel. The bill, which she described as a “performative display of moral outrage,” has nothing to do with tackling obscenity and everything to do with muting creation.“The aim is not necessarily to have successful litigation in these areas and get these fees. That's really not the point of this. The point of this is to perpetuate culture wars.”
The removal of Mann’s art is the latest chapter in an ongoing book on censorship in the state. Book ban lists get longer, university publications are stifled and drag performers are forced off campuses.
“Increasing censorship, not only of art but language and banned words, is rising at an increasing and frankly terrifying rate,” said Wendel. “The culture war on identity politics that the far right is promulgating is unnecessary and dangerous, and its end seems out of sight.”