OBJ: Art and the Law

From: Technotranscendence (neptune@mars.superlink.net)
Date: Sat Aug 05 2000 - 10:47:54 MDT

Though I found _What Art Is_ by Louis Torres and Michelle Marder Kamhi
generally agreeable and, where it was not agreeable, thought provoking, the
last chapter leaves a lot to be desired, especially the section dubbed "Art
and the Law." Here they start out discussing copyright protection and move
on to censorship. So far, so good. The bizarre thing is that their stance,
while not openly supporting censorship, lays the groundwork for would be

As for the coverage itself, Torres and Kamhi appear to slip right into the,
sad to say, typical Objectivist-as-a-conservative mode of thinking. (This,
unfortunately, shows us that there's a lot of truth to the notion that if
you scratch an Objectivist, underneath you'll find a conservative.) Instead
of questioning laws against pornography (p296) and other prohibitions of
self-expression such as laws against desecration of the American flag
(pp294-5) -- regardless of whether that expression is art or whether it is
tasteful or whether it follows alleged community standards -- they assume
these laws are valid and show how their otherwise clear and rational view of
art can bolster irrational and oppressive laws.

What is even stranger here is that Rand herself explicitly was against
censorship laws, including those against pornography, for both being vague
and injurious to a free society and individual human life. (On the
vagueness issue: What, after all, are community standards? Why should
experts or a jury get to decide them for all of us? Certainly, the makers
and would be consumers of censored materials are part of the community.)
Nowhere do they acknowledge her stance on this subject.

Though Torres and Kamhi are quick to call such things -- pornographic photos
and flags stuffed in toilet bowls -- non-art (and rightfully so in these two
cases) that such material is not art is not and should not be the standard
for keeping any government's hands off. The standard, in fact, should be
one that is well known in the Objectivist movement: Does it violate anyone's
individual rights. If not, the government has no right to interfere,
regardless of whether the work is art or even tasteful. If it does, then it
would not matter if it were art, it would still be something subject to
government involvement.

The primary question in this setting then should not be "Is it art?" - a
question governments should keep their hands off - but "Should governments
even be allowed to legislate or adjudicate these issues?"

Though Torres and Kamhi distinguish between "art and other forms of
'expression'" (p294), they do not see that basically the same legal limits
should apply to both. All human works (and actions) embody values in some
way -- i.e., are forms of expression in some sense -- whether they be art,
bridge building, or making breakfast. Freedom of expression -- not to be
confused with narrow legal definitions which only acknowledge it in a legal
context -- covers all of these, from creating and experiencing art to
running a business to style of dress (or undress) and the like. (If only
art is granted full protection, then the government will have a free hand
everywhere outside the gallery, concert hall, library, and cinema.) They
repeated rely on very narrow, status quo definitions of law, never
questioning whether these laws are right -- except in so far as the laws
agree or disagree with their definitions and theory of art.

On the issue of child pornography (see pp296-7), they ignore that in the
United States, any photograph or depiction of child nudity has time and
again been considered by the courts to be child pornography. E.g., nudists
who videotape or photograph their families -- with no intention of calling
such stuff art, much less broadcasting it on TV hanging it in a gallery --
are often tried for child pornography. It's another discussion here of just
what should be done about child pornography, but such a vague legal stance
should not be tolerated.

Torres and Kamhi even go so far to admit elsewhere that standards of quality
are basically subjective. (p467 n35) With this in mind, might not, say, the
rape scene in _The Fountainhead_ be considered purely pornographic. Is it
thus a good candidate for banning? This does not mean the distinction
between pornography and art is blurry, but illustrates that within the
current cultural context, where their remaining silent on these issues might
lead. Books have been banned in the US and elsewhere for less titillating

Also, they do not consider that such laws in themselves invite people to
challenge them, thus setting us up for making this into a politically
charged issue. (One writer, several years ago, even suggested banning the
works of the Founding Fathers, so that these works would be more widely
read.) This distracts attention away from the matter they should be
concerned with -- i.e., Is it art?

The policeman, the army, and the courts -- to use Rand's trinity -- have no
role in this process -- other than to uphold individual rights. I hope
Torres and Kamhi see this and that, perhaps, somehow their intentions differ
from what was actually printed in their book. (Also, the argument that this
is basically an esthetics book will not hold water here. One would not
write a book on Objectivist metaphysics and conclude with a discussion
supporting socialism, then argue that this is just a book on metaphysics so
it's political conclusions should not be scrutinized.)

For the record, this one section should not damn the whole book, which is a
wonderful and detailed examination of both Rand's esthetics, Modern Art, and
20th century esthetics. It will, no doubt, be the source of much esthetics
discussion in and (hopefully) out of the Objectivist movement for years to


Daniel Ust

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