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Bar owner asks Supreme Court to overturn ruling on gay art

David Hudson
First Amendment Center

12.10.99

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The U.S. Supreme Court could provide greater protection to gay art from those who would brand it obscene if the justices decide to review the case of Tipp-It, Inc. v. Conboy.

In December 1994, Omaha, Neb., police seized three works of art from the basement of The Run Bar, which caters to a gay clientele. The police were responding to a complaint from fire inspectors who saw the works during an examination of the bar.

The pieces of art all depict naked men performing either oral or anal sex. The owner of the bar, Terry Tippit, says he purchased the artwork from a friend and customer who had lived in San Francisco.

In March 1995, Tippit filed a lawsuit asking a state court judge to declare that the works were not obscene under Nebraska law.

During the May 1997 trial the defendant — the city prosecutor — offered the testimony of Dr. Roger Aiken, chairman of the Department of Fine and Performing Arts at Creighton University.

Aiken testified that the works at issue had "no serious artistic value." The judge relied on this testimony to determine that the works were legally obscene. Tippit filed a petition to bypass the Nebraska appeals court and take his appeal directly to the Nebraska Supreme Court, which granted the motion.

Under Nebraska law, material can only be classified as obscene if it appeals predominately to the prurient or lustful interest, depicts sexual conduct in a patently offensive way and has no serious literary, artistic, political or scientific value.

Aiken said that the material had no serious artistic value in part because the works were not displayed in an arts museum but were located in the basement of a gay bar.

Last July, the Nebraska Supreme Court affirmed the lower court's decision, finding the material to be obscene. The state high court also chiefly relied on the testimony of Aiken. "In other cases, courts have considered expert testimony in guiding their decisions regarding serious artistic value," the high court wrote.

In October, Tippit appealed to the U.S. Supreme Court, contending that the Nebraska state courts had misapplied the obscenity test.

Tipp-It, Inc. challenges the state high court's reliance on Aiken's determination that whether a painting or other work of art possesses serious artistic value depends on where the artwork is displayed.

The Nebraska high court "established precedent that the determination of whether a work of art is obscene or entitled to First Amendment protection depended on where the work was displayed," Tipp-It, Inc. wrote in a petition asking the U.S. Supreme Court to hear the case.

"First Amendment rights are too valuable and precious to be subject to the vagaries of location," according to Tipp-It, Inc.'s petition.

The petition also alleges that the Nebraska high court failed to take into account the fact that the prosecutor failed to introduce any evidence of the applicable community standard as to obscenity.

The idea of community standards is an important concept in obscenity cases, because both the "prurient interest" and "patently offensive" prongs of the obscenity test are judged by "contemporary community standards."

At the trial, Jeffrey Silver, attorney for Tipp-It, Inc., elicited testimony that Omaha city officials allowed the sale of Hustler magazine and adult videos. Hustler contains the depiction of "sexual activities much more sexually provocative than reflected in the works in the instant case," Silver wrote.

"The art works at issue come with a presumption of constitutional protection," the petition states. "Regardless of the dislike for the type of art displayed, the First Amendment does not provide any less protection to gay art than heterosexual art."

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