Texas Legislator Wants To Fine Museums $500k Per Day For Displaying ‘Obscene’ Content

Free Speech

from the playing-to-the-cheapest-seats dept

Here’s a law no one has ever needed, being offered up by a legislator no one needs.

Authored by Texas Rep. David Lowe (R- North Richland Hills), the bill— HB 3958—would give the Texas Attorney General the ability to seek hefty penalties for museums that are deemed to promote obscene material. 

The bill defines “obscene material” based on Sections 43.22, 43.23 and 43.24 of the Texas Penal Code, which classify obscenity as content that portrays sexual conduct without any artistic or educational value or features the nudity of individuals under 18.

You know why we don’t have more laws like these? I mean, beyond the obvious constitutional issues. It’s because obscenity laws don’t have carve-outs for museums. Even beyond that, the mere fact that something is being displayed in a museum suggests strongly that it has “artistic or educational value,” as The Questionable Authority pointed out on Bluesky:

If you can’t see/read the embed, it says:

If it’s in a museum, it’s definitionally not obscenity.

Seriously.

If it’s in a museum, it has some form of social or artistic value, and if it has social or artistic value, it is not obscene under Miller and its progeny.

So, why does this bill even exist? Well, its origins lie with someone equally performative and stupid: Carlos Turcios, a self-proclaimed “conservative fighter” who managed to celebrate a (short-lived) coup when he turned his personal visit to the Modern Art Museum of Fort Worth (Texas) into police action and an equally stupid op-ed for the Dallas Express.

The Dallas Express visited the museum and saw several pictures featuring children. One photo showed a girl jumping on top of a table. Another depicted a boy with an unknown liquid substance and his genitals exposed.

The Dallas Express team then saw a video on a TV screen where an individual talked about her “queerness.”

“One of my major apprehensions around having a child was not knowing how we would be treated as queer people and queer parents. This is largely why I wasn’t interested in being pregnant,” the individual is heard saying during a video played during the exhibit.

Other photos showcase a topless woman exposing her breasts and a photo of two women together in bed, to name a few.

This article discusses Shirley Mann’s photography, which does include a few photos of her own children in the nude. None of this approaches the legal definition of CSAM, but Turcios is apparently one of those “I know it when I see it” people even though he doesn’t actually know it when he sees it.

That late December visit led to a single (apparently anonymous) complaint to local law enforcement, which of course resulted in this stupidity the following month:

Police in Texas have seized several works by the photographer Sally Mann from the Modern Art Museum of Fort Worth (The Modern), following a complaint that the images portray naked children and could be seen as pornographic. 

[…]

Although the exhibition has been open since mid-November, it seems Mann’s photographs first came under scrutiny just before Christmas, when The Dallas Express received a tip from a local resident and sent its staff writer Carlos Turcios to investigate. 

Of course, there are no follow-up articles from Turcios at his blog or at the quasi-newspaper that gives him space to spout his inanity. The cops raided a museum and seized a bunch of photos and the local prosecutor went so far as to present this to a grand jury for obscenity/CSAM charges. But the grand jury decided this wasn’t the ham sandwich it was looking for.

A Texas grand jury declined to take any action in the investigation surrounding Lexington-based photographer Sally Mann’s work, clearing the way for the return of several seized photographs to the Modern Art Museum of Fort Worth.

The images — part of Mann’s controversial “Immediate Family” series from the early 1990s — had been removed by Fort Worth police in January following complaints from local officials, including Tarrant County Judge Tim O’Hare, who alleged the photographs could constitute child pornography. The museum had included several of Mann’s portraits, which depict her children nude, in its “Diaries of Home” exhibition.

On Tuesday, the Tarrant County District Attorney’s Office issued a statement confirming the grand jury’s decision to take “no action” against the museum or its staff. The Fort Worth Police Department has said the photographs will be returned to the museum.

I guess Rep. Lowe is sore loser. Deprived of a victory lap by a jury of his peers (so to speak), he’s decided it’s time to specifically target Texas museums with a law that could result in $500,000/day fines should any other “conservative fighters” misinterpret/misrepresent museum exhibits. It’s not that the existing law isn’t capable of punishing museums for stacking a bunch of Hustlers in a corner and calling it an art exhibit (although porn is also protected by the First Amendment). It’s that the existing law just isn’t punitive enough to nudge museums — those bastions of woke liberalism — into self-censorship and limiting exhibits to whatever Norman Rockwell prints they have on hand (except for the one where the kid is waiting to get a shot in his naked butt cheek).

Having lost this battle, these local conservatives seem hell-bent on losing the war. The law, if passed, will be challenged. Considering its specific targeting of a single location hosting third-party artistic expression, it seems unlikely to survive even the most cursory review by a federal judge. Even the Tarrant County judge who’s similarly ridiculous won’t be able to change anything. It’s a state law, not a county ordinance.

Texans deserve better than this, even the ones who cheer this sort of thing on. Someone tried to turn art into smut and failed but rather than try to better their target selection, they’ve decided it’s time to make the entire state pay for their failures.

Filed Under: 1st amendment, censorship, david lowe, gop, moral panic, sally mann, texas