By Dave Kopel
National Review Online, February 25, 2002 9:15 a.m.
Attorney General Ashcroft got himself in trouble with the media recently when he asked for the expenditure of $8,000 for a drape to cover the exposed breast of a Lady Justice statue at the Department of Justice. Ashcroft, a very conservative Christian, didn't feel comfortable having to give press conferences in front of a partially unclad woman. But rather than being mocked for prudishness, Ashcroft could have been celebrated as a vanguard of sensitive p.c. feminism if he had merely explained that he was covering the statue in order to prevent sexual harassment. Over the last decade, statues and paintings all over America have been removed at the insistence of the p.c. police.
"Lady Justice" is the age-old representation of the spirit of Justice as a woman with the scales of justice in one hand, and a sword in the other. She is often wearing a blindfold, to show her impartiality. The image probably derives from the Greek goddess Themis and the Roman goddess Justia. Lady Justice paintings and statues are ubiquitous in the Western legal world. Often as in the state flag of Virginia and in the Department of Justice statue she is portrayed with one breast partly or completely exposed.
Unfortunately, because of twisted, unjust applications of federal law, great statues and paintings everywhere are coming under attack.
Back in 1964, when Congress passed the Civil Rights Act and outlawed workplace discrimination against women, nobody expected that the law would suppress statues or paintings. Similarly, the bill's sponsor Hubert H. Humphrey proclaimed that he would eat every page of the bill if anyone could point to a single sentence which would force employers to use racial quotas. But as it turned out, quotas have become pervasive, and great works of art are being chased out of public and private forums.
The Civil Rights Act of 1964 outlaws job-based sex discrimination such as paying a woman less just because she is a woman, or refusing to hire a woman because of her sex. Decades later, Catherine MacKinnon led a successful campaign to have courts declare that sexual harassment demanding sexual favors from an employee was a form of sex discrimination outlawed by the 1964 Act.
Then, in the case of Robinson v. Jacksonville Shipyards a federal district court forbade a company to allow employees to display "sexually suggestive, sexually demeaning, or pornographic" material in the workplace. "Sexually suggestive" was defined as any depiction of "a person of either sex who is not fully clothed . . . and who is posed for the obvious purpose of displaying or drawing attention to private portions of his or her body." Thus, employers who hired, paid, and promoted women on exactly the same standards as men, and who vigilant in ensuring that female employees were not pressured to have sex, were put on notice that just by allowing free speech on their premises, they could be guilty of "sexual harassment."
Attacks on art weren't unknown prior to the Robinson decision. For example, in 1986, Los Angeles County officials had complained that a nude male sculpture at the County Hall of Justice and Records "might interfere with programs on sexual harassment, and asked that the statue be covered.
That same year, prison managers in Massachusetts removed a copy of Renoir's "Bather" from an inmate's cell, for the stated purpose of protecting the feelings of female prison employees.
But after Robinson, when objections were raised about works of art, skittish lawyers had to tell their clients that there was indeed a legal risk that the nude human form could be considered sexual harassment.
At the Pennsylvania State University, a female professor complained that a copy of Francisco Goya's painting "Naked Maja" hanging in a classroom constituted sexual harassment. "Whether it was a Playboy centerfold or a Goya," whined the professor (who was herself later accused of sexual harassment), "what I am discussing is that it's a nude picture of a woman which encourages males to make remarks about body parts." Afraid of a lawsuit, the school removed the painting.
As the North Dakota Employment Law Letter explained in its November 1997 issue, "the Goya incident illustrates that workplace conduct and, yes, even paintings that once may have been considered acceptable may no longer be."
Lower Columbia College, in southwestern Washington state, celebrated the new anti-painting spirit with a memo from its Affirmative Action Officer (Sept. 25, 1995):
During the past few months, complaints have been filed with me regarding various forms of art posted on campus and the sexual harassment felt by members of the campus community when they view the art. In order to provide a work and learning atmosphere free from harassment and intimidation, and to protect the college and all employees from costly legal defense resulting from sexual harassment and discrimination claims, I remind you that it is college policy that employees and students shall be provided a place to work and study that is absent an intimidating, hostile, or offensive environment.... Staff members and students will be expected to comply with [the affirmative action officer's] request or with the president's decision regarding removal of bothersome pieces of art in the interest of protecting the college and the accused employee or student from claims of discrimination and harassment, and in the interest of providing a harassment-free working and learning environment.
Vermont tends to consider itself a quite progressive state but the state government was years ahead of John Ashcroft in covering up works of art. In 1993, female employees in a state office building complained that they were being sexually harassed by a mural of Christopher Columbus arriving in the New World, because the painting depicted native women without shirts. State officials hung bed sheets over the harassing mural.
The Central Intelligence Agency is supposed to be led by courageous people who defend American freedom. But in 1993, when the CIA planned a headquarter display of paintings by the artist Carmen Trujillo, and some employees objected that some of the paintings showed women's breasts, and were thus "verging on sexual harassment," the Agency's leadership meekly cancelled the exhibition.
The Montana Human Rights Commission, apparently unaware that the First Amendment is a human right, produced a document titled "Model Equal Employment Opportunity Policy: A Guide for Employers." The guide explained that "Examples of prohibited sexual harassment include, but are not limited to: .... Displays of magazines, books, or pictures with a sexual connotation." Thus, a mere "sexual connotation" was being transformed into "sexual harassment." Of course, the "connotation" could be purely in the antagonistic, mean-spirited minds of the readily offended.
In 1992 in Spokane, Washington, a painting in the city-hall gallery, "Art of Birth," depicted Mother Earth giving birth to a child who was poisoned by industrial chemicals. The painting was denounced as "a form of sexual harassment."
At the University of Nebraska, a graduate student put on his desk a 5x7 photograph of his wife in a bikini. Some coworkers felt sexually harassed by the picture, and the school ordered the photo's removal.
Had the University of Nebraska stood up for the graduate student's rights, the University might have lost in court. In the 1997 case In re Grievance of Butler(697 A.2d 659 [Vt. 1997]), the Vermont supreme court ruled that "a poster ... of a woman in a skimpy bikini" could be harassment, because "the posting or display of any sexually oriented materials in common areas that tend to denigrate or depict women as sexual objects may serve as evidence of a hostile environment."
In Dayton, Titian's " Venus of Urbino" was vandalized and then removed when "employees felt they were being sexually harassed by the painting."
Following a female employee's complaint of sexual harassment, government officials Menlo Park, California, got rid of an art exhibit consisting of woodcuts showing scenes from "Romeo and Juliet" and from stories about Greek gods and goddesses.
Through the tool of a "sexual harassment" complaint, a single person can impose her narrow tastes on an entire community. In Murfreesboro, Tennessee, the city government placed a collection of paintings by artist Maxine Henderson in the city-hall rotunda. One painting, "Gwen," portrayed a seated nude woman with part of her breast visible.
Public-school employee Laurie Crowder didn't work at city hall, but when she passed through the rotunda one day on the way to meeting, she saw "Gwen." She promptly filed a lawsuit against the city. Her complaint stated she considers "'art' in any form whether it be a painting, a Greek statute, or a picture out of Playboy which displays genitals, buttocks and/or nipples of the human body to be pornographic."
As matter of law, Ms. Crowder was dead wrong. The Supreme Court's legal definition of obscenity states that the work in question must lack "serious literary, artistic, political, or scientific value" and must appeal "to prurient interest."
The city attorney recognized that "Gwen" was not legally obscene. Nevertheless, he concluded that the painting was contrary to the city's sexual-harassment policy. He personally took the painting down.
Notwithstanding the duty of every attorney to defend the Constitution of the United States, the city attorney explained: "I feel more comfortable siding with protecting the rights under the Title VI sexual harassment statutes than ...under the First Amendment." Since "Gwen" in the painting is apparently at home rather than at work, the painting constituted sexual harassment, according to the city attorney: "Historically, our society thought women should be in the home or in the bedroom, as opposed to in the workplace. So anything that sends that message is a violation" of the Civil Rights Act of 1964.
Fortunately, Ms. Henderson sued the city about the removal of her painting, and she won the case.
Yet the city attorney explained why, for most employers, knowingly violating the First Amendment presents a much smaller legal risk than acceding to any and every nitwit's complaint about being sexually harassed by a work of art: "This judgment was for $1 and costs. A sexual harassment judgment usually has six zeros behind it. Quite frankly, I'm an advocate of the First Amendment, but a very conservative lawyer when it comes to giving advice."
In the majority of cases, sadly, there is no-one like Ms. Henderson to stick up for the First Amendment. The artist may be dead (like Goya) or may not have the resources to take a case to trial.
The Civil Rights Act of 1964, of course, outlawed sexual discrimination, not works of art. But federal courts have twisted the law to apply not just to actual discrimination, but also to a "hostile or abusive work environment" which can be created though "severe or pervasive" speech regarding sex.
Because no-one can tell in advance what a jury or an EEOC enforcement officer will consider "severe or pervasive" or "hostile or abusive," employers are forced to censor broadly, as a protective maneuver. While a single work of art might not be "pervasive", it could be considered "severe," and if an employee sends a risquι joke to someone via the office e-mail, the painting plus the e-mail might considered "pervasive." So defensive employers respond by shutting down speech across the board.
This is precisely the problem identified by a 1964 U.S. Supreme Court case striking down a vague loyalty oath: people must " steer far wider of the unlawful zone' than if the boundaries of the forbidden areas were clearly marked. Those . . . sensitive to the perils posed by indefinite language, avoid the risk . . . only by restricting their conduct to that which is unquestionably safe." Yet it is the U.S. Supreme Court itself which created the art-destroying vague standards of "sexual harassment" law.
UCLA Law Professor Eugene Volokh, on his website Freedom of Speech vs. Workplace Harassment Law A Growing Conflict, explains how workplace harassment laws are being used to stifle not only artistic expression, but religious, political, and other speech at the core of the First Amendment.
As attorney general, Mr. Ashcroft has the legal authority to have Lady Justice re-clothed even though I hope his successor undrapes Lady Justice, and installs some outstanding nudes at the DOJ offices. The problem at the Department of Justice isn't Lady Justice; the problem is that the Department of Justice in recent administrations, both Republican and Democratic, has allowed and abetted the perversion of the Civil Rights Act of 1964 into a censorship law. Hubert Humphrey, Robert F. Kennedy, and the other great civil libertarians who fought for this law never intended such a grotesque result. Sworn to defend the Constitution from all enemies, Attorney General Ashcroft should reverse the misguided policies of his recent predecessors, and fight to enforce the Civil Right Act so that it stops discrimination, not paintings and statues.