Whether in ancient Rome or in the modern United States, censorship has existed in every society at every age. Art that challenges the strongly held beliefs of any society - whether those be political, ideological, religious, or otherwise - causes offense and creates pressure for censorship. At the same time, almost every society has found value in the existence of visual art. What limitations on censorship should be made for the sake of artist value, or more broadly freedom of expression? "Artistic merit" and "offensiveness" are nebulous concepts lacking in objectivity, shifting with the tastes of society at any given time. Yet the value of art to society, both positive and negative, cannot be doubted. In modern American society, with its heterogeneous tastes, the tension between the two concepts becomes especially vivid. Given the divergent and unpredictable tastes of society, the fact that destroying a work permanently removes it from future generations, and considering censorship's dreadful history, the decision to censor is one appropriately made with caution. But neither can it be said that a work should never be censored, for art can and does cause offense, and even a society as diverse as ours will find consensus at the extremes. Rather, striking the appropriate balance calls ultimately for good judgment. In making this judgment, what is the appropriate role of the law and the courts? Those who think of the law as purely objective will desire the courts to either forbid all governmental interference with art, or to themselves abstain from interfering with political decisions on art. But these approaches place legal purity above reality, and make the impossible attempt to divorce law from its social context. The problem of relativism that inheres in the balance between artistic merit and offensiveness in fact exists in every legal controversy. The necessary public respect for our courts is unlikely to be undermined by a cautious display of good judgment, even if the judgment is inherently subjective and involves art causing offense to elements of our society.
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ReDIF This chapter was published in: V.A. Ginsburgh & D. Throsby (ed.) , Elsevier, chapter 10, pages 309-335, 2006.