Joco Opinion

As I See It — Like it or not, statue is protected

Updated: 2013-10-08T18:44:26Z

By LEE ROWLAND

Special to The Star

Offended by a statue depicting a woman’s breasts, the American Family Association of Kansas and Missouri is once again stepping up its fight against a statue at the Overland Park arboretum.

“Accept or Reject” is a bronze sculpture donated to the arboretum by sculptor Yu Chang depicting a fractured woman taking a photograph of her exposed breasts. The artist intended for the statue to offer a cautionary warning that the virtual world removes control over one’s image. But in 2012, the American Family Association of Kansas and Missouri circulated a petition to convene a grand jury for the purpose of deciding whether the statue was illegal because it was “obscene.”

They got the necessary signatures, a grand jury of Kansas citizens gathered to criminally investigate the statue and ultimately determined that the “sculpture in question did not meet the legal definition of obscenity.” While the sculpture avoided a criminal record, the taxpayers didn’t avoid a $35,000 bill for this misguided attempt to criminalize art.

Undeterred, the the American Family Association is now leading a second attempt to bring the sculpture to criminal court.

How is this even possible? Kansas is among a handful of states that have a citizen-impaneled grand jury law where a group gathers petition signatures to seek a criminal indictment. If the organizers reach the required number of signatures, a grand jury is impaneled to investigate violations of Kansas law. But until this year, the citizens’ influence over the criminal justice process stopped there.

Angry after a string of grand juries failed to return indictments alleging illegal abortion and pornography, groups like the American Family Association and Kansans for Life successfully advocated to expand citizen involvement in the grand jury process. Now the law requires the grand jury to call the petition organizer as its first witness and permits the jury to pay for a special counsel or investigator of its choosing — even to replace the government prosecutor.

Empowered by the expanded role of citizens in the grand jury process, the American Family Association is taking a second swing at the bronze statue and has started another signature drive.

The First Amendment, and the opinions of the Supreme Court, hold this kind of art to be protected expression, not criminal obscenity. Under the law, “obscenity” has a specific meaning: it’s something that appeals to a “prurient” interest (that is, it is sexually exciting) and is devoid of any cultural, literary or artistic merit. That’s a tough bar for any sculpture to meet, since it’s incredibly difficult to prove that a piece of art is devoid of artistic value as a whole. And repeatedly bringing a piece of art into the criminal justice system not only violates the artist’s constitutional rights — it risks chilling future artistic work. If the people of Florence had threatened to haul Michelangelo’s David before a people’s tribunal, he might never have gone on to paint in the Sistine Chapel.

The American Family Association has every constitutional right to advocate against the statue and to rally its members behind a campaign to install better clothed public art. But our constitutional democracy does not allow a group of citizens to use the criminal justice system as a tool to censor constitutionally protected expression. The First Amendment in all its wisdom protects both the statue’s right to bare its breasts and the citizens’ right to object to them. Just not to warp the criminal justice system to achieve an unconstitutional outcome. So, this likely grand jury proceeding can only lead to one of two outcomes: An empty symbolic gesture, or an expensive and unconstitutional criminal prosecution.

Lee Rowland is a staff attorney with the ACLU Speech, Privacy & Technology Project. To submit an As I See It piece, email an essay of 700 words to Grace Hobson, ghobson@kcstar.com.

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