An article by KERA reporter Marchetta Fornoff has framed the controversy surrounding a local museum’s exhibit that includes photographs of nude children as a First Amendment issue.
The article has been republished in both the Fort Worth Report and The Dallas Morning News.
As previously reported by The Dallas Express, a concerned Fort Worth resident informed the outlet that the Modern Art Museum of Fort Worth is currently exhibiting a collection called Diaries of Home. The documentary photography exhibit includes pictures of naked children and so-called LGBTQ+ content.
Days later, a warrant was issued and executed regarding child pornography images at the museum. Four images from the exhibit were secured as potential evidence and will not be visible to the public while the investigation is pending.
Fornoff’s article, titled “Photos removed from Fort Worth museum as police investigate child pornography allegations,” suggested that the ongoing investigation into the museum’s photos raises a First Amendment concern.
The author quotes two First Amendment scholars who believe that photographer Sally Mann’s work falls under the category of protected speech, claiming that it does not meet the criteria the law uses to determine what may be considered pornographic.
Besides being offensive and appealing to prurient interest, “It also has to lack all serious artistic value … for it to fall outside of the protections of the First Amendment,” said Peter Steffensen of the First Amendment Clinic at Southern Methodist University.
Thomas Leatherbury, the director of the First Amendment Clinic, stated, “Art has sparked controversy, and I’m all in favor of people who disagree with art saying they disagree with it … voicing their opinions about it. Criminally prosecuting it is a completely different and unconstitutional reaction.”
“When public officials even just threaten to wield their power to restrict First Amendment rights, people receive the message that they may not be free to express themselves in the ways that they wish to or to share their identities or to express unfavorable opinions,” Steffensen added.
However, according to the landmark 1982 Supreme Court case New York v. Ferber, child pornography, even if it is not explicit, is not protected as free speech under the First Amendment. The Court ruled that the state’s interest in protecting children was more significant than “an adult’s right to enjoy sexually explicit material.”
Some supporters of the exhibit have also overlooked the issue of consent. Some have argued that children are not in a position to give informed consent to be photographed.
“Why did someone photograph children in a nude state for the purpose of public display? Was it the child’s mother photographing? Did the child give the consent? How could the child have even understood consent for this?” Fort Worth resident Isaac Rudolph previously told The Dallas Express.
“Young children cannot give consent to the use of their photographs without assistance from a parent or caregiver. Obtaining a child’s consent is not enough to justify putting a child at risk,” Child Rights International Network states. “As adults we need to protect children who might technically ‘give consent’ but in fact lack the maturity to understand the long-term consequences of negative publicity.”
The Dallas Express reached out to the Fort Worth Report Editorial Board for comment but did not receive a response.