Chinese artist Ai Weiwei is no stranger to controversy, but his most recent (and very public) cry of art censorship may be overstepping the bounds. The infamous artist, who has gone head-to-head with the Chinese government – arrested and harassed for his artwork, his passport was suspended and his artworks banned in China – Ai Weiwei has now engaged in a public dispute with LEGO, an argument that’s making waves across the globe and reinvigorating an old discussion on art censorship.
Ai Weiwei has used LEGO bricks in his work in the past, in order to create portraits of political dissidents for site-specific installations; one such was of Nelson Mandela at the Alcatraz prison in San Francisco. Now, Ai Weiwei has been commissioned to create a similar project at the National Gallery of Victoria in Melbourne, Australia, but the artist’s bulk order from LEGO was rejected, with the company citing that it “cannot approve the use of Legos for political works.”
This may be a departure from LEGO’s previous sanctioning of their bricks to Ai Weiwei, but the timing of the piece sheds some light: LEGO, facing losses in their once-largest markets in Europe and the U.S., the company is making a concentrated effort to increase sales in China – and as the country’s very public enemy, it wouldn’t be wise to publicly condone the artist’s art project.
Ai Weiwei has decried that LEGO’s refusal to supply him the bricks – which he was more than willing to pay for – is art censorship, and the artist has received an overwhelming amount of public support. LEGO drop-off stations have been installed across the country, a viral Twitter campaign has been launched, and LEGO has received a whole lot of bad press in the process.
But critics of Ai Weiwei are saying that this is nothing but a boy-who-cried-wolf situation, and that LEGO has the right to refuse the sale of their building blocks without such a decision amounting to art censorship. So who is right? As an artist, do you know the difference between art censorship and plain old right of refusal? If you are being censored, what are your rights?
What is Art Censorship?
Generally speaking, the first amendment codifies censorship based on the right of free speech. The First Amendment’s constitutional rights guarantee freedom of expression by prohibiting Congress from restricting the press or individuals to speak freely. When censorship occurs, it’s because there’s a suppression of words, images, or ideas that someone has deemed “offensive” and has therefore tried to suppress. Artists, writers, filmmakers, and photographers are often the subject of censorship efforts since there is often an impassioned, counterculture message attached to an artist’s work. Even in the U.S., where freedom of speech is rigorously protected, artists have often run into trouble: think Alan Ginsberg’s censorship and obscenity trial over his infamous poem, Howl, or the overturning of the ban of Vonnegut’s Slaughterhouse Five in Michigan schools.
In almost all art censorship cases, however, there was a clear limitation on the availability of the work. Like in the case of the artist Blu, when MOCA Director Jeffrey Deitch ordered Blu to take down his mural of coffins referencing the Vietnam War on the museum’s doors, a position the Museum stated they took in order not to offend Vietnam War veterans. Or in the more seminal case of Tinker v. Des Moines Community School, in which two students were expelled after wearing black armbands to school in symbolic protest of the Vietnam War.
In both instances, an artwork or an expression was literally not being permitted to come to light. But that’s not the case here – LEGO isn’t preventing Ai Weiwei from creating his work, they’re just refusing to participate in the process. In fact, LEGO has every right to refuse to provide their blocks for Ai Weiwei’s work – after all, freedom of expression goes both ways.
Why LEGO Shouldn’t be Publicly Scorned for Art Censorship
Upon a rendition of the facts of Ai Weiwei’s case, you may feel compelled to side with the artist. But LEGO doesn’t deserve to be publicly crucified – sure, it’s true that LEGO is a corporate behemoth, taking advantage of the Chinese labor trade and taking care to put dollar signs before artistic expression – but the company has long had strict guidelines regarding the use of their building blocks, and their assertion of such isn’t illegal, it’s a codified expression of their freedom of speech.
Just like Ai Weiwei has the right to create and show his work, LEGO has the right to refuse the sale of their blocks. And while doing so may seem like a protest, it’s one that’s totally protected by the First Amendment. In fact, when a private individual or group boycotts some form of artistic expression, that speech is protected by the First Amendment, since it’s a private entity’s right to oppose anything they choose.
The right to dissent has been protected over and over again by the Supreme Court: in the case of West Virginia State Board v. Barnette, the school board’s regulation that every student salutes the flag as their morning ritual was challenged by a group of Jehovah’s Witness students, whose religion prohibited such actions. The court sided with the students, claiming that “no official can decide what can be orthodox in politics or religion.”
Sometimes, the right to dissent even works against artistic expression in a much more limiting way than Ai Wei Wei’s predicament. Several artists in the early 1990s were revoked their National Endowment of the Art’s grants based on the indecency of their photos: Robert Mapplethorpe’s homoerotic portraits, Andres Serrano’s crucifix in a urinal, and Karen Finley’s chocolate smearing incident all fell prey to a loss in grant money thanks to the provocative nature of their works. While the artists were able to petition the court to reinstate their grants, which it did, the NEA subsequently created a decency clause for grant awards, and that provision was also challenged in court. The NEA’s provision stood up before the Supreme Court, and they affirmed it, stating that they “perceive a realistic danger that it will be utilized to preclude or punish the expression of particular views,” nor did she think that the statute would “significantly compromise First Amendment values.”
Artists Have First Amendment Rights, Too
In the case of Ai Weiwei, we don’t need to perform an analysis of art censorship or freedom of speech, because his case is missing a key component: his work is not being suppressed, LEGO is merely choosing not to be a willing participant. It’s unfair, then, that Ai Wei Wei is using his celebrity to drum up even more publicity, when there are real cases of censorship that require serious attention – just look to the recent censorship dispute lodged against the BART in San Francisco by art professor Victor de la Rosa, which hasn’t received even half the public outcry that Ai Wei Wei has garnered in the last week (did we mention they even made a t-shirt?)
It’s important for artists to note that freedom of speech protections don’t apply to every single act of censorship, but rather to those enacted by a government. The key distinction in the First Amendment’s language is that Congress is prevented from limiting speech – not a private citizen or entity. But since that line is not always clear – sometimes a private corporation has significant ties to a government entity – the issue can often be muddled. If you’re being asked to remove your work, or facing art censorship or suppression in any way at all from exhibiting, it’s your right to seek legal remedies.