October 3, 2007

"You would have to be a puritan out of the 16th Century with a magnifying glass in order to spot Eve’s nipples."

So says the ACLU lawyer for the artist Ed (Gonzo) Stross:
Stross is fighting a 30-day jail sentence for violating a city sign ordinance for exposing Eve’s breast and painting the word "Love" in his variation of Michelangelo’s "Creation of Man" on the outside wall of his art studio....

In 1997, Stross got permission from the city to paint the 1,100-square-foot mural on an outside wall of Gonzo Fine Arts Studio at Gratiot and Utica roads, but with conditions: no letters, no genitalia and regular maintenance of the artwork. The city contends that Eve’s bare breast was prohibited under the agreement.
So what do you think is the stronger argument: the First Amendment protects his free expression or he hasn't violated the condition? And what is the relevance of Michelangelo? Or the size of Eve's nipple?

Assuming the condition uses the word "genitalia," I think the strongest argument is that he hasn't violated the condition because breasts are not genitalia. Genitalia are the reproductive organs, and breasts don't contribute to reproduction. You could have your breasts completely removed surgically and still reproduce.

ADDED: He's obviously violated the "no letters" provision with the word "Love," so the only useful argument is that he has a free expression right to paint the giant mural in disregard of the conditions. Don't be distracted by Eve's nipples. I think he's got to lose this one, but what are 30 days in jail for an artist when you get publicity like this?

38 comments:

rhhardin said...

Breasts aren't genitalia. As John & Ken dismissively put it recently, breasts are only second-tier private parts.

Justin said...

If he agreed to the conditions, does he still have a first amendment claim? I would think he gave up the right to free speech in this context by agreeing to the limitations.

MadisonMan said...

What an unhelpful picture in the accompanying article. The artiste is blocking the view of the non-genitalia.

AllenS said...

I went to the article, to look for a picture of breasts, but Gonzo had his arm in the way. I'm thinkin' that it was your standard size nipple.

jane said...

Bet those nipples really stand out late fall to early spring on a fresco alfresco.

NSC said...

"Mmmmmm, nipples." - Homer Simpson

(Okay, he really said donuts, but that didn't work.)

jane said...

Maybe the painter can plead dyslexia and say he’s an artits.

David said...

Are those conditions conjunctive or disjunctive? And why choose between the ordinance interpretation and the first amendment claim? Why not interpret the ordinance narrowly so as not to give rise to the 1A issue?

Richard Fagin said...

Breasts are "genitalia" within the "penumbras" and "emanations" of that term as it is ordinarily used. You know, kinda like the right to privacy is in the penumbras and emanations of the fourth amendment limitation on unreasonable searches and seizures.

If the contract said "no genitalia" the artist should win on the merits. Then again, Griswold and Baird should have lost for the same reason.

Trooper York said...

I have a lovely pair of breasts
you can't help notice them here on my chest
I should paint eyes on them, under the lace
Co's all the men talk to them, never my face

Breasts, boobs, blouse bunnies too
What is a girl to do?

I know some ladies who gladly would swap
Oh to have something to fill out their top
But they just don't know all the perils that come
when that top most button finds itself undone

Jugs, knockers, sweater puppies too
What is a girl to do?

I have lost more things because of my breasts
Toast crumbs and icecream down that deep crevace
It's like the grand canyon, you'd lose things too
between those great mountains, if only you knew

Norks, hooters, and twin peaks too
What is a girl to do?

I can't go joggin' co's it hurts my eyes
this way and that way, in the air they fly
Forget strapless dresses, I need support
Oh how I'd love little ones tiny and taut

Tits, globes and coconuts too
What is a girl to do
Yeah , breasts, mammaries.....babaloo's
What is a girl to do?
(Tracy Lundgren 2006)

Peter Palladas said...

Marlinga said the sentence is absurd...

The sentence? The whole friging case is utter madness.

Wake up people, there are aliens out there about to end all life as we know it and you're spending valuable judicial time on this phooey?

jane said...

Instead of spending a whole month in jail, the guy ought to be Abel to ask for a quick Caining.

ricpic said...

Hey, if the artist considered the city's demands to be puritanical he had the right not to agree to its conditions. Having agreed he acted in bad faith. Breasts are not genitalia but they do frolic within the penumbra of sexual organs, right Mister ACLU lawyer?

Trooper York said...

Narrator: No one would have believed in the early years of the 21st century that our world was being watched by intelligences greater than our own; that as men busied themselves about their various concerns, *they* observed and studied, the way a man with a microscope might scrutinize the creatures that swarm and multiply in a drop of water. With infinite complacency, men went to and fro about the globe, confident of our empire over this world. Yet across the gulf of space, intellects vast and cool and unsympathetic regarded our planet with envious eyes and slowly, and surely, drew their plans against us.
(War of the Worlds 2005)

jane said...

Udder madness, Peter.

I'm sympathetic to the artist and breasts but wish he weren't giving the ACLU exposure on this case.

halojones-fan said...

I can imagine the artist's thought process.

"They don't want genitalia, eh? Well, I'll show those PURITAN PRUDE REPRESSED UPTIGHT SQUARES WHO GET ALL UPSET OVER STUPID MEANINGLESS LITTLE THINGS!"

nick said...

:) Jane.

Obviously the Genesis of this case is that poorly written contract regarding what constitutes genitalia. However Love will be his undoing, since In the Beginning, there was the Word… clause.

Hoosier Daddy said...

I guess he couldn't take that picture on a Southwest flight.

But in all seriousness, this is a classic assault on free speech and I think it is important we keep abreast of the outcome.

jane said...

You got that right. If that innocent artist gets put into jail over this, I'm going to plaster "Free Mammary" stickers all over my old Volvo and Volkswagon van.

cheerful iconoclast said...

So why is this a criminal case in the first place? If you say that the city has the right to control what people paint on their buildings, well, fine. I don't agree, but OK.

Then order him to paint over it, or give Eve some pasties. But don't send the guy to jail.

More to the point, it's his damn building. He should be able to paint whatever he wants on the side, unless it's flat-out obscene.

Richard Dolan said...

Roseville, MI must be a pretty sleepy place -- almost a crime-free haven, really -- if this sort of "crime" merits a 12-person jury trial. Perhaps the town fathers thought of it as a backhanded form of advertising for their little bit of paradise.

It's also strange in that the artist is being prosecuted for violating a condition on a license permitting him to create the artwork, where the license is functionally a conditional waiver of the town's anti-sign ordinance. Anti-sign ordinances are usually about preventing the visual clutter that comes from advertising; in substance, they're a form of aesthetic regulation, intended to maintain a kind of (bland) visual uniformity. So a waiver of those regulations to permit a mural makes sense (sort of: the mural isn't commericial, but it cuts against the uniformity). The article doesn't make it clear (or if it did, I missed it) whether the mural was painted on private property. I assume it was, and that the property owner has no objection.

As others have noted, it's a silly case, but silly cases often lead courts to reach for a constitutional means to end the silliness. It's possible to mount a constitutional attack on a condition on a gov'tal license, even where the defendant accepted the condition to get the license. But that's a long shot, to be sure. Ann says that the use of letters in the mural, where the conditions on the license forbade any letters, sinks his chances. They sink an argument that he wasn't literally in violation of the terms of the license. But I doubt that it has any impact on the constitutional claim. It's not that the town ordinance is based on some rational conclusion that letters (as opposed to other shapes) are uniquely destructive of whatever visual harmony the town was seeking to achieve. A ban on letters serves to prevent the mural from being used as a way to get around the ban on commercial signs (ads). A court might restrict the ban on letters to its presumptive purpose (i.e.,n no commercial signs), to avoid having to reach the constitutional argument. It's a stretch for sure, but no more so than the entire argument that the ACLU is apparently making.

jeff said...

Good thing he didn't go nuts and open a art museum next to his building. You ever see the Louvre? My God, it's like the crack house of nudity. Wouldn't want the kids exposed to that.

nick said...

Titular city officials with nothing better to do than this are exposing themselves as the real boobs.

jane said...

Clearly, Nick, they're teatering on the brink of really sucking at their jobs.

Trooper York said...

[Dr. Cassandra uses her alvino ray gun on Batman, Robin and Batgirl]
Batgirl: I feel like I'm getting flat!
Cabala: What a pity...
(Batman TV Show)

paul a'barge said...

Tripping over common arithmetic, Oliver Willis counted 3 breasts.

P. D. "Bo" Steele said...

Let the man dazzle us with mammilla. Our Constitution withstood the Civil War and Korematzu v. US. I am sure it can withstand these challenges.

jane said...

Showing Eve with barely a bare nipple is pretty wholesome. Had the artist depicted it pierced— it’d be really holesome.

But writing L-O-V-E is what will put the artist in jail, which is beyond parody and into the realm of Dada 2, or anti/ anti anti-art.

jane said...

I once tried to donate an exquisite art book to a Waldorf fourth grade class, but several of the classical art images out of a couple hundred had women’s breasts somewhat showing, and the teach couldn’t accept it. Bah. Forget National Geographic, too.

My kid was raised on good art, and male and female nudes were always included in learning the greats. Even as a Republican, it’s difficult to understand the uptightness and censoring over fine art and celebrated images of the body. Why should women’s breasts be considered offensive or pornographic, no matter the context? Why would they be thought of as sexual, or "genitalia," in images which clearly aren't intended to be tit-illating?

Hoosier Daddy said...

Dr. Frederick Frankenstein: What knockers!!
Inga: Oh...thank you Herr Doktor.
(Young Frankenstein, 1974)

P. D. "Bo" Steele said...

Hoosier Daddy: I am afraid I must reraise you:

"I must confess no Object ever disgusted me so much as the sight of her monstrous Breast, which I cannot tell what to compare with, so as to give the curious Reader an Idea of its Bulk, Shape, and Colour."

Swift, Gulliver's Travels

Joe said...

Seems to me this is a simple contractual dispute concerning work for hire, nothing more. To elevate this to a constitutional issue is absurd and a waste of tax dollars.

Michael said...

Hey, I'm as conservative as they come, and I think this puritanism on display over an inoffensively artistic-nude nipple is an outrage.

Perhaps he should re-paint Eve wearing a burka.

Trooper York said...

I call and raise:
Creamsicle sky while the sun sets up in the west
Where are the queers on the piers, heard they gave it their best
Now they got jobs at a local fast food chain
Flippin' tricks for the burger, since Lady M jacked their fame
Flippin' tricks for the burger, since Lady M jacked their fame

You can't see tits on the radio
I'll give you five fingers for a one man show
Fasten those pants for the lap dance
Take a shot now this may be your last chance

There ain't no tits on the radio (Oh no)
There ain't no tits on the radio (Oh no)
There ain't no tits on the radio (Oh no)
There ain't no tits on the radio (No no)

Dark room Danny can't see with the lights turned out
Black haired tranny counts sheep with her bed turned down
But the bed's in Jersey and the sheep's on a farm
Dark room Danny hears police alarm
Dark room Danny can't see with the lights turned out
Dark room Danny can't see with the lights turned out

You can't see tits on the radio
I'll give you five fingers for a one man show
Fasten those pants for the lap dance
Take a shot now this may be your last chance

There ain't no tits on the radio (Oh no)
There ain't no tits on the radio (Oh no)
There ain't no tits on the radio (Oh no)
There ain't no tits on the radio (No no)

(Scissor Sisters 2004)

Richard Fagin said...

I've been called all sorts of bad things in my lifetime, but I don't know that I've ever been given such an insult as being called an ACLU lawyer. Damn that hurts!

MadisonMan said...

Perhaps he should re-paint Eve wearing a burka.

This would be perfect.

Hoosier Daddy, I've seen that scene probably 25 times at least --Great Movie -- and I'm pretty sure Teri Garr just says "Oh...thank you Doctor".

Put....the candle....back

Trooper York said...

Madison Man, Mel Brooks is bringing it to Broadway starring Sutton Foster in the Teri Garr role with Megan Mullaney from Will and Grace in the Madeline Kahn role. The role of the monster seems to very hard to fill as both Peter Boyle and John Kerry are unavailable.

norm said...

I just got around to reading Justice Thomas's book after all these years and found it very interesting.