On April 3, 2011, the government of China arrested Ai Weiwei, one of the country’s foremost and globally recognized contemporary artists. He was released after 81 days in prison. Since then, he has been under constant surveillance and has been forbidden to leave Beijing. The Chinese government contends that the artist was arrested for tax evasion; most everyone else believes that he was arrested because of the political content of much of his art. As an example, his 2009 work, Remembering, consists of 9,000 colorful children’s backpacks installed on an outside wall, arranged to spell, in Chinese, the words, “She lived happily for seven years in this world.” The words are those of a mother who lost her child during the 2008 earthquakes in Sichuan province. The piece was meant to call attention to badly constructed schools that had collapsed and killed thousands of children.

The arrest of Ai Weiwei came as part of a crackdown in China in which dozens of intellectuals and activists were arrested and detained. The crackdown was believed by many to have been triggered by China’s fear that the Arab Spring would lead to similar unrest in China. Ai Weiwei was the best known of the detainees and China’s arrest and lengthy detention of Ai challenged the notion that high-profile figures are protected from government reprisal when the “whole world is watching.”

Ai Weiwei’s arrest provoked dramatic reactions from both the art community and beyond. A chorus of nations called for his immediate release. Protests were held at Chinese embassies and consulates world-wide. Leading artists engaged in their own protests; Anish Kapoor refused an invitation to show his work at the National Museum in Beijing and dedicated his sculpture, Leviathan, commissioned by the Grand Palais in Paris, to Ai. In an interview in December 2011 in Time Magazine, Ai said that his release “could only have come from support… from the international art community and political community and also in China.”

The most dramatic event, but not the only one.

The arrest and detention of Ai Weiwei may have been the most severe and dramatic instance of censorship of the arts in the past few years, but it has not been the only one.

In the fall of 2010, the National Portrait Gallery in Washington, D.C. mounted an exhibition entitled “Hide/ Seek: Difference and Desire in American Portraiture.” The show focused on the impact of “sexual difference” on American art from the 1880’s to the present, and contained works by, among others, Thomas Eakins, George Wesley Bellows, Romaine Brooks, Marsden Hartley, Walker Evans, Georgia O’Keeffe, Robert Rauschenberg, Jasper Johns, Robert Mapplethorpe, Andy Warhol, Keith Haring, Felix Gonzalez-Torres, and Glenn Ligon.

The show also included a four minute clip from a video by David Wojnarowicz entitled A Fire in My Belly. The video, created in response to the artist’s AIDS diagnosis, contained religious imagery of anger and anguish. Approximately eleven seconds of the clip consisted of an image of ants crawling on a fallen crucifix. When the Catholic League protested that the video clip was “insulting” and “hate speech,” Smithsonian Secretary G. Wayne Clough made a quick and unilateral decision to remove the video from the exhibition, stating later that he did so in order to forestall retaliatory budget cuts at the hands of a politically charged Congress.

Shortly after the arrest of Ai Weiwei, Jack Persekian lost his job as the director of the Sharjah Art Foundation because the ruler of Sharjah objected to Persekian’s inclusion in the Sharjah Biennial of a work that was deemed to be sexually and religiously provocative. The work, Maportaliche/It Has no Importance, by Algerian artist Mustapha Benfodil, was installed in a courtyard in front of a mosque. It consisted of headless mannequins in soccer uniforms with what could be seen as sexual and religious words written across the garments and in surrounding graffiti.

Each of these events occurred during a period when the arts community has been expanding and celebrating its global inclusiveness. Chinese art has a solid footing in the international contemporary market. The Sharjah Biennial has begun to establish itself as a regular stop on the “Great Global Art Tour” as collectors and scholars explore contemporary art from Arab and Gulf states. And the exhibition at the National Portrait Gallery was itself an explicit act of inclusion – an acknowledgement of the expression of “difference” in American art. These events have therefore raised interesting and fundamental questions for the art world of when and how to respond when the freedom of artists and museums is restricted. If you are part of a community that is operating on a multi-cultural and global basis – a community that, at its heart, is based on a common belief in the value of artistic engagement and interaction – how should you respond when the freedom to engage is denied to an artist or an arts institution?

The question is too grand to be fully answered in these pages. It is also a question the answers to which will evolve over time and involve philosophical and political debate. What we can usefully do, however, is to discuss, in the context of Ai Weiwei, Wojnarowicz and Benfodil, the roles that technology and law can play in that response.

Global communications as a global tool.

Censorship can work only where the censor can control the public’s access to disfavored images. That kind of control is infinitely more difficult in a digitized and globalized world. Once upon a time, all it took to suppress a work of art was to prohibit its exhibition and prevent its reproduction in a limited universe of printed publications. If the control wasn’t always absolute, the consequences were limited by the limited reach of those publications. The advent of radio, movies, and television permitted a wider potential platform for any given artist or work of art. But the relatively small number of networks and studios, the reliance of television and radio on government airspace, and the geographical limits of broadcast media provided continued levers of control.

It simply isn’t that easy any more. The ability to publish an image in real time to a global audience can be purchased for the price of a cell phone. The ability of any government to control these communications – to block access to the Web or to particular sites -- lasts only as long as it takes someone to figure out an effective “work-around.”

This salutary effect of technology has played a role in the events involving Wojnarowicz, Benfodil and Ai Weiwei. Each of the three incidents was reported instantly around the world and provoked immediate reaction. In the same Time Magazine article in which Ai Weiwei attributed his release to international pressure, he also acknowledged the power of the Internet in his continued legal struggles with the Chinese government – both in his ability to communicate with the world and in the ability of others to express their support of his activities.

In the case of the National Portrait Gallery, if the intent of the Catholic League was to suppress Wojnarowicz’s video, the art community effectively prevented that from happening. Screenings of the work were held in many cities, including an event at the Tate Modern in London; the film was posted on YouTube and elsewhere on the Web; and the Museum of Modern Art pointedly acquired the work to include in its permanent collection. The Brooklyn Museum and the Tacoma Art Museum collaborated to show the Hide/Seek exhibit, and each included Fire in My Belly. Similarly, Benfodil’s work has received considerably more international attention than it would have had it not been removed from the Sharjah Biennial.

Where the law is a viable tool.

Although the Internet can undermine the impact of censorship, it does not provide a basis on which to challenge censorship directly. For that, one needs a body of law that protects free expression. That is where national boundaries still matter in a global market community.

What makes the Wojnaorwicz matter different from the others is that it happened in the United States, and what distinguishes the United States is that when a government official seeks to abridge the expressive rights of artists or of the institutions that display their work, his or her ability to do so is limited by the First Amendment of the Constitution.

As an example, in 1991 the City of Miami decided not to the renew the lease of the Cuban Museum of Arts and Culture, which was housed in a city-owned building in Little Havana. The city had been subjected to significant political pressure from Cuban émigrés who were upset by the museum’s decision to exhibit art by artists who either still lived in Cuba or who had not yet renounced Castro. The museum had, in fact, been bombed twice, and the city cited its concerns for public safety.

The city’s decision was determined by the federal district court in Miami to be unconstitutional. The court held that the museum’s curatorial decision was “subject to the full protection of the First Amendment.” It further held that the city’s decision to allow the lease to terminate was based on that curatorial decision and that the city’s excuses and rationales were pretextual.

“Although the City Commission may have been well intentioned in taking steps to end the controversy and bring peace back to the community, thereby ending the controversy, the intolerant bickering among various groups, and the dissension with the local community, it could not attempt to accomplish such well-intentioned goals by sacrificing those whose views and method of expression had caused others to respond with hostility and scorn.”

The court held that the “penalization” of the museum’s “First Amendment rights … with the resulting chilling effect on speech” constituted what in the law is called “irreparable harm,” i.e., harm that can be compensated only by ordering the offending party to make things right, not by the payment of money damages.

Eight years later, the federal court in Brooklyn reached the same conclusion when the Mayor of the City of New York labeled works in an exhibit at the Brooklyn Museum of Art as “sick” and “disgusting,” and aggressively attempted to force the removal of those works from the Museum. The court, citing the First Amendment, blocked him from doing so.

The exhibit, “Sensation: Young British Artists from the Saatchi Collection,” had come to Brooklyn after a controversial run at the Royal Academy in London. In London, the controversy was focused on a portrait by Marcus Harvey of convicted child murderer Myra Hindley made up of hundreds of small images of a child’s handprint. In New York, Mayor Giuliani focused on a work by Chris Ofili depicting the Virgin Mary which incorporated preserved elephant dung, and ultimately withheld city funds that had already been appropriated to the museum.

Finding that the Mayor had engaged in a deliberate campaign to force the museum to abandon its First Amendment rights and that the loss of those freedoms would constitute irreparable harm, the court ordered the city to restore the funding and abandon a separate action to evict the museum from its city-owned property. In the course of her opinion, Judge Nina Gershon noted,

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion.”

The First Amendment is a powerful weapon against infringements on the most important aspects of artistic freedom. However, the First Amendment does not protect against every act that an artist may feel is a restriction on his or her art. Certain speech (and therefore, art) is not covered by the First Amendment – including obscenity. Art may also be subject to government regulation as to the time, place and manner of its exhibition. In each instance, however, there are limits on what the government can do. A mayor, for example, may not impose his own standards of obscenity, but must follow established constitutional guidelines. A city may not forbid the exhibition of art based on its content in areas designated or traditionally used as places of expression unless the city can establish that the regulation is narrowly drafted to serve a compelling public interest.

Comparing Wojnarowicz and Benfodil.

The underlying circumstances of the events at the National Portrait Gallery and the Sharjah Bienniel have substantial similarities. At base, Smithsonian Secretary Clough and Jack Persekian each sought to protect his respective institution as a whole.

Secretary Clough’s decision to remove A Fire in My Belly from the National Portrait Gallery exhibit was perhaps understandable given the prevailing political climate. At the very least, the situation illustrates the chilling effect that funding fears can have on arts institutions where the economy is in distress and political hot buttons are at issue. Indeed, the Republican leadership in Congress explicitly threatened the Smithsonian’s federal funding, which amounts to as much as 75% of the institution’s budget, if the concerns of the Catholic League were not addressed. Since the removal of the work, Clough has defended his decision as necessary both as a way of protecting his funding and as a way of protecting the remainder of what was a ground-breaking exhibit.

Similarly, even though the dismissal of Jack Persekian as director of the Sharjah Art Foundation was met with disapproval and anger, Persekian himself ultimately distanced himself from that reaction. For Persekian, his termination was not an inexcusable act of censorship on the part of the emirate, but the result of a misstep on his part in the course of the “respectful dialogue” that he believes is necessary in order to nurture the development of contemporary Arab and Gulf art.

In a statement explaining the removal of the work, and, by extension, the dismissal of Persekian, the President of the Sharjah Art Foundation noted the fact that the work was “sited in a very public courtyard, a place where children play after school, where families wander together on the weekend and where people pass on their way to religious services at the neighboring mosque. This work paired language that was sexually explicit with religious references in an overt and provocative manner.”

It would seem that Jack Persekian accepted his termination as graciously as he did in order to protect and preserve the significant progress that the Sharjah Bienniel has engendered in the development and understanding of Arab contemporary art. If that’s the case, then his motivation was not far from that of Secretary Clough.

The situations, though similar, are factually distinguishable in a number of ways. As an example, in Sharjah, the issue was whether the work by Benfodil was installed in an inappropriate public place where people would be exposed to it whether they wanted to be or not. Under United States law, the decision in Sharjah could be characterized as a permissible regulation of the “time, place and manner” of expression. By contrast, in Washington, the issue was whether the work by Wojnarowicz could be part of a museum exhibition that people could choose to attend or choose to avoid – a much more significant infringement on artistic expression.

But the most important difference is that under the United States Constitution, Clough had the right and the ability to resist the demand to remove the work and to challenge any retaliatory funding decisions on the part of Congress. A large part of the negative reaction in the art community centered on the fact that he chose not to do so – he chose not to assert the Smithsonian’s First Amendment rights and protect the judgments of its curators. The case law, after all, would suggest that had the museum declined to accommodate the demands of the Catholic League, and had the Congress retaliated as Secretary Clough feared, the action of Congress would likely have been held to be unconstitutional. At least one editorial opined that the situation diminished the legitimacy of the Smithsonian as an arts institution. Essentially, in comments that ranged from disappointment to outrage, the point was made that in a country that provided Clough with the legal mechanism to defend basic freedoms, he chose instead to make accommodations. No matter how sympathetic and rational his reasons for doing so, many in the community felt it was not enough.

Some thoughts.

Events deserve responses. If freedom of artistic expression is a fundamental ideal of the global arts community, then it is important for the community to protest (or at least discuss) each time that freedom is infringed. This is how international norms are developed.

Legal remedies aren’t the only tool in the toolbox. Technology has provided the arts community with a powerful tool to combat censorship that doesn’t require lawyers or lawsuits. In a very basic way, the Internet can be used to broadcast images and ideas that a government has tried to suppress. Moreover, a government with any sensitivity to world opinion has reason to measure the way it treats its artists against the fact that whatever it does may provoke an instant and global response.

Nevertheless, law makes a profound difference. In nations such as the United States, where one has the right to mount a direct legal challenge to an infringement of free expression, the ability of the government to censor art is circumscribed. That doesn’t mean that it doesn’t happen. But governmental officials who attempt to restrict free expression do so at the peril of constitutional challenge and judicial scrutiny.

The question at the center of the Smithsonian case is whether the availability of legal rights requires that they always be exercised. Can a museum director in the United States legitimately decide that his institution is best served by accommodating political demands that encroach on the museum’s curatorial freedom? Does that kind of decision diminish the institution, or are there circumstances in which it is justified? If we choose not to assert rights do we cause their erosion?

Tiffany Figueroa, Summer Associate, contributed to this article.