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
"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
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,
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
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 bedsheets 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
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
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 risqué 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.