SIGNIFICANCE: CONTEMPORARY ARTS CENTER V. NEY

Case Name: Contemporary Arts Center v. Ney; City of Cincinatti v. Contemporary Arts Center
Citation: 735 F.Supp. 743 (S.D. Ohio 1990); 57 Ohio Misc.2d 9 (1990); 57 Ohio Misc.2d 15 (1990)
Topics: Obscenity

City officials found the Contemporary Arts Center’s (CAC) photographic exhibit obscene and charged it with violating Ohio obscenity laws. In this case the CAC sought a court order to prevent city officials from interfering with its exhibit.

The court found that obscenity is not protected speech under the First Amendment. However, it acknowledged that what is “obscene” is determined by a community standards test. Until such a determination is made, there may not be a seizure of the alleged obscene items. Since there had not been a judicial finding that the photographs in the exhibit were obscene, they were therefore protected by the First Amendment. The court issued a preliminary injunction to prevent city officials from interfering with the exhibit.

In response to grand jury indictments against the CAC and its director, Dennis Barrie, the CAC filed several pre-trial motions in an attempt to have the case dismissed, arguing that the exhibit was not obscene as a matter of law and that Ohio obscenity laws were unconstitutionally vague and overbroad. The court dismissed the motions, holding that determinations of obscenity were factual issues that had to be measured by a jury, and the case was set for trial on September 24, 1990. 

At trial, the prosecution only called three witnesses, all police officers who confirmed that the photographs were part of the exhibition at the CAC. The defense immediately called for an acquittal, saying that the prosecution had not met its burden of showing that the photographs lacked serious artistic value or violated community standards for obscenity. Marc D. Meizbov, the defense attorney for the CAC, argued, "It would be inappropriate, it would be wrong, I submit, for lay people to guess and to speculate as to what constitutes artistic value." The prosecutor, Frank H. Prouty, disagreed. "The bottom line is the pictures," he said. "We’re not required to show community standards because the court becomes the community." Judge F. David J. Albanese denied the defense’s motion. "The court will not substitute its judgment for that of the jury," he said.

To prove the claim that the seven photographs had serious artistic value, the defense brought in several art experts who described Mapplethrope as "a brilliant artist" and his photographs as works of "symmetry" and "classic proportions." On October 5, 1990, after only two hours of deliberation, the CAC and Barrie were acquitted on all charges of obscenity. The case was a significant victory for artists and art institutions and one of the most important battles against censorship in the "culture wars."