Subject: Cincinnati Sends a Warning to Censors Date: Published: 10/8/90 (186 lines) Source: Wall Street Journal. Copyright Dow Jones & Co. Inc. Law: Cincinnati Sends a Warning to Censors ---- By Milo Geyelin Staff Reporter of The Wall Street Journal CINCINNATI -- Jurors in the first obscenity trial against an art museum were no fans of Robert Mapplethorpe, but they emerged from deliberations as his champions nonetheless. After just two hours behind closed doors Friday, the jury found the city's Contemporary Arts Center and its director, Dennis Barrie, not guilty of obscenity in connection with a display of Mr. Mapplethorpe's controversial photographs. The eight members of the panel, mostly working-class parents who had never been to a contemporary art gallery, were unanimous in deciding that the photos appealed to a prurient interest in sex and that they were patently offensive, the first two elements of the U. S. Supreme Court's obscenity test. But they were unable to go along with the third requirement for a conviction: that the photos lacked artistic or educational merit. Said Jennifer Loesing, an X-ray technician at a local hospital here who sat on the jury panel: "Personally, none of us really liked the pictures at all. But it all came back to art not having to be pleasing to the eye in order to learn something from it at the same time." The verdict was widely viewed by lawyers as a warning to prosecutors about the difficulty of winning obscenity cases when a strong argument can be made for a work's artistic merit. A community poll conducted by the defense also gave surprisingly strong backing to the view that the public, at least in Cincinnati, is extremely uncomfortable with censorship. But the outcome in Cincinnati, representing the views of one jury in one community, hardly sounds the death knell for obscenity prosecutions. Last week, the owner of a record store in Fort Lauderdale, Fla., was convicted of pandering obscenity for selling a record by the Miami rap group 2 Live Crew, "As Nasty As They Wanna Be." And the band is set to stand trial for obscenity this week for a performance it gave in Hollywood, Fla., last June to an audience over age 21. "I'm glad the struggle is over here in Cincinnati," Mr. Barrie said after the verdict Friday, "but it's not over in the rest of our country." The Cincinnati exhibit, entitled "Robert Mapplethorpe: The Perfect Moment," was a retrospective of the late photographer's work and included 175 photographs, mostly a sampling of his painstakingly composed still lifes, celebrity portraits and studio photos of calla lillies. Organized with the help of federal arts funds in 1987, when Mr. Mapplethorpe was dying of AIDS, the exhibit touched off the national debate over public funding of the arts. With the indictment of Mr. Barrie and the Contemporary Arts Center, the fight crystallized here into a legal question over what museums can and cannot show. The charges could have landed Mr. Barrie in jail for up to a year and cost the center $10,000 in fines. Senior assistant city prosecutor Frank Prouty Jr. focused the trial on the content of the seven pictures at issue -- five depicting vivid homoerotic and sadomasochistic images and two of children with their genitals exposed. He argued that a local community had a right to determine its own standards for acceptable art. But the defense knew something about the community the prosecutors apparently didn't. Two weeks before the trial, the arts center had commissioned a telephone survey of 424 area residents that showed strong local resentment against the prosecution among the 90% who were aware of the case. In the survey, 63% said they opposed prosecuting the arts center, 59% said they would acquit the center of obscenity charges based on what they knew, and 71% said they thought the prosecution was a waste of taxpayer dollars. The result enabled the defense to feel comfortable with the four-man, four-woman jury made up of a cross section of Hamilton County, which includes Cincinnati. "We were very confident, having reviewed the results of the poll," said Roger Auch, president of the Chicago West Pullman Corp. and chairman of the Contemporary Arts Center. Despite the survey, the two Cincinnati defense lawyers, H. Louis Sirkin and Marc D. Mezibov, appeared to face an uphill fight in a city famous for its well-organized and well-financed anti-pornography efforts. The city allows no adult bookstores or nude bars, and local law enforcement has battled entertainment perceived as pornographic, including "Hair," "Oh! Calcutta" and "Equus." Moreover, the municipal judge who tried the case, David J. Albanese, is a law-and-order Republican, a former prosecutor and close friend of the Hamilton County sheriff who tried to shut down the Mapplethorpe exhibit when it opened last April. The judge ruled against Messrs. Sirkin and Mezibov on critical evidentiary matters and sharply limited the scope of their defense. Because of one key ruling, the jury was instructed that it could convict Mr. Barrie and the arts center if it found any one photograph obscene. That ruling effectively deprived the defense of its central contention: that the show's artistic power came from the sequencing of Mr. Mapplethorpe's photographs -- the display of his still lifes, flowers, and celebrity portraits in the same exhibit with his more brutal sadomasochistic images. Messrs. Sirkin and Mezibov moved quickly in the trial to dispose of the charges involving the illegal display of child nudity. Testimony made clear that the mothers of both children were friends of Mr. Mapplethorpe who consented to his taking the pictures and their display. The jury agreed. "That didn't take that long," said Mrs. Loesing. "We could not see where they had done anything wrong." The tougher challenge for the defense was explaining the five photographs named in the obscenity count. Mr. Prouty, a career city prosecutor trying his first obscenity case, relied on the shock effect of the photos, which he referred to repeatedly as the "S&M pictures." To defend them, Mr. Sirkin said he looked for expert witnesses with training and backgrounds in the Midwest who could explain Mr. Mapplethorpe's work without alienating the Cincinnati jury. "My big concern is that they don't equate us with the `wacky' art world," Mr. Sirkin said during jury deliberations. The six art experts who testified for the defense included four of the nation's leading museum directors and the art critics for both local newspapers in Cincinnati, both of whom lavished praise on the show in their reviews. "I think we would have been missing something if we hadn't had an opportunity to see his work," said the Cincinnnati Enquirer's art critic, Owen K. Findsen. Robert Sobieszek, senior curator of the International Museum of Photography at the George Eastman House in Rochester, N. Y., was asked in video-taped testimony about his undergraduate years at the University of Illinois, and then went on to compare Mr. Mapplethorpe's tortured pictures to "a search for understanding, not unlike Vincent van Gogh painting himself with his ear torn off." Mr. Prouty sought to depict the museum directors as outsiders and challenged their right to set local artistic standards. "Who actually determines what is art? " he asked Mr. Sobieszek. "Culture is far too complex that no one person can say what it is," Mr. Sobieszek answered. "But it's something that's more than personal, more than local. It's culture in society." Mr. Prouty's only rebuttal witness was Judith Reisman, a communications consultant with evangelical Christian ties who offered no expertise on art but denounced the photographs for their content. Mrs. Reisman called the pictures immoral because of their "anonymous images" and lack of human feeling, but conceded under cross examination that she had not seen any of them on display. Her testimony carried little weight with the jurors, said Mrs. Loesing and fellow juror James Jones, a warehouse manager in suburban Blue Ash. Instead, the panel withheld their personal judgments and relied on the word of the defense experts, both said. "I'm not an expert," said Mr. Jones. "I don't understand Picasso's art, but I assume the people who call it art know what they're talking about." --- Voices of a Community Following are results from a telephone survey of 424 adults in Hamilton County, Ohio, which includes Cincinnati, Sept. 12-15. The survey was commissioned by the Cincinnati Contemporary Arts Center. DON'T YES NO KNOW Is it important for Cincinnati's 84% 11% 5% national image to offer a variety of arts, including contemporary arts? Are you aware of the Mapplethorpe 93 6 1 exhibit at the Contemporary Arts Center? Among those aware: Are you in favor 26 63 11 of prosecuting the Contemporary Arts Center? Would the image of Cincinnati be 59 20 21 hurt if the Contemporary Arts Center was found guilty? Source: Assistance in Marketing Inc. 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