From Mapplethorpe to Iowa, through New Hampshire and California: US rules on obscenity and nudity in art

Posted on: May 29, 2019 by

Even though there is currently an ongoing lawsuit in Iowa to determine what materials containing nudity prisoners should be granted access to, this is a debate that actually began much earlier.

Protest in support of The Perfect Moment exhibition of Mapplethorpe’s works in Cincinnati. © John Stamstad Photography / Cincinnati Contemporary Arts Center

Our story begins in New Hampshire in 1942, when a ground-breaking precedent was set: the freedom of expression right granted by the constitution of the United States was not absolute. Judge Murphy, presiding on a case that actually centred on fighting words, meaning speech that is aimed at inciting violence or hatred, ruled that there were some exceptions to the 1st Amendment protection, of which fighting words were one and obscenity was another.

The clear-cut establishment of the latter exception, however, was not as clear-cut as one might have hoped, as determining what is obscene remained a thorny task. Fast forward to 1973 and it seemed that 31 years later the US Supreme Court had finally made up its mind, in the precedent-setting Miller v. California case. This case established an obscenity test in three stages, whereby something would only be obscene if it met all three requirements. These were:

  • Whether the average person, applying contemporary community standards, would find that the work as a whole appeals to the prurient interest’;
  • Whether the work depicts or describes sexual conduct or excretory functions, as defined by state law, in an offensive way’; and
  • Whether the work as a whole lacks serious literary, artistic, political, or scientific value’.


Almost 20 years later and this was put to the test in the 1990 Mapplethorpe obscenity case. The Mapplethorpe trial was particularly relevant since it wasn’t Mapplethorpe himself being charged, but the Cincinnati museum (Ohio) that had put up an exhibition of his works, titled The Perfect Moment. In the show were displayed abound 175 of Mapplethorpe’s works, including images of nude men and homosexual S&M. Up to that point, no museum in the US had ever been charged with obscenity. The verdict was not guilty, on all charges.

A statue of Cesare Beccaria, Pinacoteca Brera, Milan. © Chiswick Chap via Wikimedia Commons

As such, if even the very graphic images in that Mapplethorpe show were not considered obscene and were therefore protected under the 1st Amendment, it begs the question why, almost 30 years later, a new lawsuit is needed in order to allow prisoners in Iowa to access material containing any sort of nudity – the threshold here clearly being much lower than obscenity. The current Iowa ban includes not just the more obvious culprit of pornography but any nudity in art as well as publications such as the National Geographic, medical anatomy images, or even nude drawings made by the prisoners themselves, as reported by The Art Newspaper.

In 1764, Cesare Beccaria already understood the importance of distinguishing between different motivations for punishment, in what would become a seminal work for the theory of punishment in criminal law. He argued that retribution should definitely not be the main reason. In our day and age, the widely accepted justification for criminal punishment and especially incarceration is the rehabilitation of that individual for society. However, if this is the case why is Iowa promulgating and enforcing such extreme laws on what materials prisoners can access?

Code of Hammurabi (detail), Louvre Museum, Paris. © Cyrali via Wikimedia Commons

Art and the sciences have an undoubtable role in bettering any human being, perhaps even more so those individuals who we, as a society, have determined need rehabilitating. Moreover, it should not need stating that being a convicted criminal does not strip one of constitutional and basic human rights. As such, from a legal perspective, there simply can be no justification for constricting prisoners’ access to material which, through the freedom of expression protection enshrined in the 1st Amendment, they have every right to. On the contrary, doing so stems more from punishment for the sake of punishment and of a petty, if not vindictive, mentality of taking away from these prisoners things that can help them cope with the day-to-day of prison life, just because one is in a position to do so.

I would like to think that as a human society we have evolved past the age of Hammurabi’s Code, in which penal punishment was meted out in a purely retributive manner, to a more humane rehabilitative perspective. Pending the outcome of the Iowa trial, it remains to be seen whether this is indeed the case.