{"id":50822,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/censorship-at-yale-why-the-universitys-refusal-to-exhibit-student-aliza-shvartss-senior-art-project-violated-its-speech-code.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"censorship-at-yale-why-the-universitys-refusal-to-exhibit-student-aliza-shvartss-senior-art-project-violated-its-speech-code","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/censorship-at-yale-why-the-universitys-refusal-to-exhibit-student-aliza-shvartss-senior-art-project-violated-its-speech-code.html","title":{"rendered":"Censorship at Yale Why the University’s Refusal to Exhibit Student Aliza Shvarts’s Senior Art Project Violated Its Speech Code"},"content":{"rendered":"\n
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Censorship at Yale: Why the University’s Refusal to Exhibit Student Aliza Shvarts’s Senior Art Project Violated Its Speech Code<\/h1><\/td>\n <\/tr>\n

By JULIE HILDEN <\/h2>
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Tuesday, May. 27, 2008<\/td>\n\n <\/tr>\n <\/table>\n\n\n\n\n

Last month, Yale University was caught up in a controversy over the senior art project of senior Aliza Shvarts. Shvarts first confirmed, then denied, then once again confirmed, that, over a period of nine months, she had repeated the following procedure: First, she inseminated herself. Then, two or three weeks later, at the end of her menstrual cycle, she took an abortifacient, to ensure that, had she become pregnant, the pregnancy would be terminated. She planned to use the blood resulting from the use of the drug in her department’s end-of-the-year art exhibit. <\/p>

Soon, Shvarts was in the unusual position of being condemned by virtually everyone who commented on the controversy, including both pro-life and pro-choice groups. Yale blocked her work from being included in the exhibit, unless she submitted a statement affirming that \u2013 as she had, at one point, suggested \u2013 her supposed inseminations and possible abortions were a fiction she had concocted. Ultimately, Shvarts did not submit the statement and, under pressure, she submitted an alternative project to the exhibition. While Shvarts’s original project was never shown, Yale’s own Project Censorship was complete. <\/p> \n \n\n\n

Yale’s broad free speech code says that a university must provide the freedom to “think the unthinkable” and “discuss the unmentionable.” In this case, it surely did not live up to its word. <\/b><\/p>

When Administrators Veto Art that Faculty Members Approve, Free Speech Antennae Should Perk Up <\/b><\/p>

Granted, universities are in a difficult position when controversial campus speech is also part of a project submitted for a class or degree requirement. On one hand, they do not want to judge \u2013 and discriminate among \u2013 speakers based on the content they convey, in order to allow freedom of speech and thought. On the other hand, they also want to ensure that the work they accept adheres to a standard of quality within its field, and expert judgments of quality are inextricably intertwined with ideas about content.<\/p>

The problem for Yale, however, is that the experts approved Shvarts’s project. It was okayed by two School of Art faculty members; it was administrators who ultimately killed it. For instance, Yale College’s Dean, Peter Salovey, said that the project bore “no relationship to what I consider appropriate for an undergraduate senior project.” The word “appropriate” is telling here; it connotes morality, not quality. <\/p>

Salovey also accused the two art department advisers of making serious errors of judgment. Again, the idea of “judgment” is moral; Salovey apparently thought the advisers \u2013 rather than, say, misapplying artistic standards or misconstruing university speech policy \u2013 had the wrong idea as to what Shvarts ought to do, or what kind of art Yale ought to accept. <\/p>

Ominously, Yale has taken the Shvarts controversy as a reason to review its art-project process overall. I’ll bet dollars to donuts that what we’ll see now is more administrative involvement, less freedom for art professors to coach their students toward pathbreaking work, and more timid art. <\/p>

The Use of Blood and the Harm to Shvarts: Reasons for Censorship that Are Less Persuasive Than They May Seem<\/b><\/p> \n

Administrators also cited supposed fears about the use of blood and the harm to Shvarts that may have been done by repeated use of the abortifacient. But these fears, too, ring a bit false. <\/p>

With respect to the blood, it seems plain that it could have been displayed behind glass or otherwise made secure, or that Shvarts could have been allowed to mount the exhibit and incorporate, say, videos of the blood rather than actual blood. (She reportedly showed the Yale Daily News<\/i> video she had taken of herself expelling the blood.) But administrators plainly were not looking for that kind of compromise. <\/p>

What about the physical harm to Shvarts of taking “Plan B” or the equivalent over and over? This is a better argument on Yale’s part, but it seems unlikely that it would be consistently applied. Imagine, for instance, that a Yale art major went on a hunger strike to whittle down his or her body to the size of the bodies of refugees suffering in Darfur, as a commentary on the situation there. Like Shvarts’s project, that project might predictably take a physical toll on the artist. But would the University have leapt to censor that project? <\/p>

The “harm to Shvarts” claim is also a bit suspect because the harm, if any, has already been done. In light of this incident, Yale could have rewritten its policy on a prospective basis to prevent future Shvartses from taking similar risks. Surely, if Shvarts’s project violated prior policy, the university would have said so. That it presumably did not makes the way she was treated even more suspect; without clear rules, the possibility of manufacturing post hoc justifications for censoring work an institution simply does not like or find “appropriate” is very high. <\/p>

High Art, Low Art, and the Art of Sparking Controversy <\/b><\/p>

I’ve suggested above that, generally, experts in a discipline, not administrators under pressure to kowtow to and represent an institution, are the best ones to judge student projects. But I want to make a further argument, as well: Although I am no expert on art, I do think that the art school faculty who deemed Shvarts’s project acceptable had good reason to do so. <\/p>

To begin, at least since Marcel Duchamp displayed a urinal as a piece of art and entitled it “Fountain,” no object or subject can truly be deemed inherently inappropriate for art. <\/p>

Nor can one still plausibly argue \u2013as an editorial by Kathrin Day Lassila in the May\/June Yale Alumni Magazine<\/i> did \u2013 that Shvarts’s project possibly does not come under speech codes at all because it is action, not speech. To say this ignores the entire performance art movement. It also ignores the Supreme Court: In Barnes v. Glen Theatre<\/i><\/a>, the Court held that nude dancing is a form of speech (although it also held that it could be constitutionally outlawed by the states.) <\/p>

Finally, it is much too late in the day to claim that the very controversy art inspires is not itself part of the artwork \u2013 a phenomenon of which Shvarts was well-aware when she commented to the Yale Daily News, “I hope [the project] inspires some sort of discourse.” Forgetting the cloud of talk art that inspires when we analyze it leaves art in an unrealistic vacuum. Thus, art documentaries like “The True Meaning of Pictures”<\/a> may spend substantial time discussing the critical reception of controversial works. <\/p>

Why the Issues Here Are More Interesting than the Debate Has Yet Suggested<\/b><\/p>

Ironically, the debate that was sparked in this case was discouragingly shallow, but that is not Shvarts’s fault. Critics piled on to write easy pieces excoriating Shvarts. But much of their commentary revealed, not a legitimate gripe, but a need to control her and to impose upon her their own views. <\/p>

Importantly, an embryo does not show any brain activity until several weeks after<\/u> the time in her cycle when Shvarts used the abortifacient. Thus, the secular case for embryonic personhood here is exceptionally weak. (It becomes much stronger, in my view, when we can estimate that a fetus has attained consciousness.) So why are Shvarts’s critics so angry? Surely it can’t be that they are so worried for the welfare of this artist whom they detest. <\/p>

Some may want to impose their own religious views on Shvarts \u2013 who plainly does not share them. Some may think that the subjects of menstruation and miscarriage are unseemly, not for polite company or fancy universities; the same people might also object to, say, the Village Voice<\/i> cover that once depicted a woman’s tampon string. This kind of thinking, though, leaves women ashamed about their bodies, and even at times hesitant to visit a gynecologist. To the extent that the Yale speech code protects the right to “discuss the unmentionable,” it could hardly be more closely applicable than it is here. <\/p>

Others may fear that Shvarts will become a poster girl for arguments with which they disagree \u2013 such as arguments that women often cavalierly use abortion (or the abortifacient “Plan B”) as a form of birth control. That’s a fair point, but there’s serious danger in reining artists in on the ground that their work might be misunderstood or misused. <\/p>

Finally, some may wish that Shvarts had held her fertility sacred, rather than making a sideshow of it \u2013 but again, she’s entitled to disagree; it’s her fertility, after all. For example, Kathrin Day Lassila, the Yale Alumni Magazine<\/i> editorialist, found it necessary to disclose in her piece on the controversy that, while “pro-choice” she had “suffered very much over a miscarriage of my own.” In the end though, Shvarts’s cavalierly-induced miscarriages have nothing to do with Lassila’s deeply-mourned one \u2013 especially so from a pro-choice standpoint, which emphasizes each woman’s decision to do what she choose with her own body. Faulting Shvarts for being cavalier is asking her to hold something sacred, but her concept of sacredness is not anyone else’s to impose or define. <\/p> \n\n\n<\/span>\n\n\n\n

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\n\n\n<\/a>\nJulie Hilden, who graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden is also a novelist. In reviewing Hilden’s novel, 3, Kirkus Reviews praised Hilden’s “rather uncanny abilities,” and Counterpunch called it “a must read…. a work of art.” Hilden’s website, www.juliehilden.com, includes free MP3 and text downloads of the novel’s first chapter.\n

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