The CAC was seven blocks from my law office. On the Saturday morning that the exhibit opened to the public, we heard that the Hamilton County prosecutor had empaneled a grand jury to get an indictment by noon, so we sent out scouts to determine when the police were going to arrest the CAC’s director, Dennis Barrie. But Cincinnati is a small town, and our scouts told us that the cops had stopped for lunch along the way.

Eventually Dennis was charged with obscenity for five photos of explicit gay S&M sex and one count of exhibiting two photos of nude children. If convicted, he could have spent two years in jail and paid $2,000 in fines. The CAC would have had to pay $10,000 in fines. The psychic cost for countless artists and museums as they self-censored to avoid obscenity charges also would have been high.

I spent the next six months working on Dennis’s defense; Ultimately a jury judged him not guilty that October. The trial demonstrated that the rights to freedom of expression designated in the Constitution must be fought for—and that they sometimes hinge on narrow legal distinctions.

I had been working on First Amendment cases since the 1970s. That was a decade of changes in attitudes towards art with sexual content. The Kinsey Report’s findings had been accepted by the culture by then, and magazines and filmmaking reflected the sexual revolution. Then, in the 1980s, VHS and Betamax players produced an explosion of pornographic films people could watch in the privacy of their homes instead of theaters. By the late 1980s, sexual content was a bigger part of our culture and our lives.

The controversy over Mapplethorpe’s work is often attributed to his explicit homosexual subject matter. But I wondered if the trouble in Cincinnati wasn’t more about race. There were photographs of black men and white women, after all. And our city is on the edge of the South (Kentucky is just across the river) and 46 percent African American. We had integrated during the ‘70s, but were backsliding into segregated neighborhoods by the ‘90s, with whites moving into small cities and villages in the suburbs.

To me, it was mind-boggling that prosecutors would go after the CAC, a vital and legitimate institution that had been hosting exhibitions since the 1940s. Before trial, we were optimistic that the case would be dismissed, despite the climate of hysteria around Mapplethorpe, because it should have been clear that an organization like the CAC would never do something without a serious artistic purpose. After all, the exhibit was a retrospective of years of work, and it had shown elsewhere in the country. A museum would be a protected institution from these charges, however, the judge said the CAC was not a museum but a gallery because it had no permanent collection. We were boggled by this.

So we had to go to a jury trial. Again, we were optimistic. I was familiar with Miller vs. California, a 1973 case that said that obscenity had to be proven by three so-called prongs. First prong: Would contemporary community standards say that the work as a whole had only prurient interest? Second prong: Did the work show sexual acts in a patently offensive manner? Third prong: Did the work, taken as a whole, lack serious artistic value? I had worked on cases for pornographic movies like The Devil and Mrs. Jones talking about the first and third prong—the movie had a plot and it might be patently offensive but it was not morbidly preoccupied with sex.

A big challenge was to make sure the jury understood the context of the photographs. It was equally important that I would comfortably talk about sexual practices with a more clinical vocabulary, so the jury understood them in a legal context. But we were handicapped because the jury couldn’t see the actual exhibit photos; only the photos and video taken by the police of the exhibit were shown. (The exhibit had gone to Boston by the time of the trial.) So we got all of our expert witnesses to see it at the CAC so they could describe exactly what they saw, and explain the context and the presentation of the photos as art.

In discussing whether the photos had artistic merit, we geared the defense to the idea that art didn’t have to be pretty. It can be challenging. I can see Who’s Afraid of Virginia Woolf? and leave depressed. But that’s not a problem with the performance—the artistic value doesn’t get determined by what you feel afterwards. For example, the importance for the world of images of the Holocaust is huge. We don’t like those images, but they are vital to telling the story.

That was a winning argument. The jury deliberated for two hours and acquitted Dennis Berrie and the CAC.

The trial created an important history of a jury validating this approach to art. It sent a message that artists and museums can tell us things that we often don’t or can’t talk about easily. The way times and norms change was part of the exhibit. You could see how Mapplethorpe evolved from seeking attention and photographing himself toward the more interior still lives and portraits. Art really reflects the period of time it’s made in. We don’t come to grips with what happened in that time until 20 to 30 years later. It’s good to see that Mapplethorpe’s work today is being recognized as the artistic accomplishment—and advancement—that it really is.

In retrospect we made another smart decision: The prosecutor had offered to drop charges on the five photos if Dennis would plead guilty to two misdemeanors of showing nude children. We said no. Looking back, the repercussions of taking a plea deal for disseminating photos of a minor in a state of nudity could have been a death blow for the CAC—and disastrous for Dennis. Now with all the consciousness over those labeled sexual offenders, such a crime would be a felony and could land him on a sexual offender registry.

For me, winning the case—in a trial that we made about art—was a great moment. The Mapplethorpe exhibit divided the city, and the art world there split against itself. Everybody was afraid. The CAC withdrew from the local arts association so they wouldn’t tarnish the symphony. By winning the case on grounds that this was art, that it was important for humanity, the CAC’s reputation was bolstered. In the years since then it’s raised money for a beautiful new building and a collection.

But that case (and others from that time) has also scared museums and artists who don’t have the resources to fight. There’s a lot of self-censorship by museums, which are especially leery of showing work with children. The repercussions of offering work that could be labeled “dirty” remain serious. Museums’ ability to show what they think is important is still somewhat dependent upon who is running the Justice Department.

Artists who are considered on the edge are still targets. I recently defended a young photographer who was doing a series on birth and death. He got permission to take photos at the morgue, but foolishly sent them out for developing. He was reported to the police and prosecuted for abuse of a corpse. At the end of the trial the prosecutor kicked the box of photographs and told the jury, “Mr. Sirkin’s defense of art is bullshit. Art is only what we’d take home and hang on the wall.”

The artist spent 12 months in prison.

The post I Defended Mapplethorpe in the Trial That Drew the Line Between Art and Obscenity appeared first on Zócalo Public Square.

In Los Angeles, at least at 9 o’clock on weekend mornings, it’s the Starbucks at Santa Monica and Westmount Drive. I’ve been going here at least two days a week since around 1998. The baristas know me by my order. “Short drip?” they chirp before I approach the counter. Short coffee, I want to correct them.

You could say all Starbucks are the same: the same smell of burnt beans, ostentatious drinks whose names require practicing, racks of mugs nobody buys, Norah Jones. But more than 90 percent of the customers at my Starbucks are gay – more regular-guy-and-his-dog gay than six-pack abs gay – and they’ve made it into a genuine social center, even more so than a bar. I’m among that 90 percent, but I don’t socialize there. For me, it’s a place for cheap(ish) adequate coffee and bland music that won’t distract me from The New York Times, inviting but not comfortable enough to stay longer than it takes to read the Arts section and the editorials. If I time it right, I can score an already-read Times from the discard bin at the front door.

I could brew my own coffee, but making a whole pot is wasteful. I prefer to get out of the house first thing, and Starbucks is the perfect distance for a morning walk. The Coffee Bean is several more blocks away, with only five tables, louder music, and no Times. The smaller Starbucks next to the Coffee Bean has even less seating, so there’s no point. I could drive to an independent coffeehouse, but I hate driving, and indies are too homey. They almost shout, “What’s your rush? Play Scrabble.” And call me crazy, but I like being known by my drink order rather than “Larry.” Maybe I’ve lived in a big city too long.

They remodeled the gay Starbucks last year and they doubled the seating area. But as with freeways that become clogged a week after they’re widened, almost every seat is usually occupied. There’s a communal bench where you’re almost forced to chat up whoever is across from you. I don’t have the time to do that. Like I said, I’m there for coffee and the Times.

The place has shifting moods. Afternoons mean writing partners enthusiastically hammering out story lines (“The hooker is also a hedge fund manager!”). Evenings bring awkward first dates with guys who met online with high hopes. Late evenings are filled with the more somber whisper clicking of scripts being created on laptops (FADE IN: A stiletto-heeled hooker, with the steely resolve of a hedge fund manager). I rarely visit during those times.

On weekend mornings, though, everyone seems to know each other and is interested in getting to know everyone else. Even the occasional family who’s just checked out of the pink Ramada next door, carrying suitcases and scolding their children in German accents, will chat up a group of guys.

The place has been, for me, the perfect place to be among people, yet anonymous. But lately I’ve begun feeling like a short drip hermit.

I blame my mother. Twice in the last month she has told me how she can’t wait to come back to visit Los Angeles so she can go to “that nice Starbucks” and meet some more of those “nice gay men.” I assume she is willing to spend upwards of $450 on a plane ticket to see me as well, but she hasn’t said that in so many words. With every visit she eschews the usual tourist attractions. For her, the gay Starbucks is Los Angeles, and she acts like it’s her own AARP cotillion. In 20 minutes she will talk to more people there than I have since the Clinton presidency–this from a woman who usually views strangers with fear and a little loathing and carries her purse in a plastic CVS bag to deter muggers.

“You could be friendlier,” she said after the last time I took her there. I was indoors reading the Times Book Review while she was on the patio discussing dog training with a guy who had two Chihuahuas. It’s not a matter of being friendly, I try to tell her. I socialize, just not there. It’s hard to explain that I actually go to a Starbucks for the coffee.

She has no interest in going to a Starbucks in Akron. The weather is lousy, so no patios. Presumably gay men there brew their own. If she doesn’t make it out here this year, I might just send her a few Norah Jones CDs.

Larry Buhl is a Los Angeles-based freelance reporter and writer who covers medicine, technology, entertainment and politics.

*Photo by Larry Buhl.

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