[Note: An earlier version of this appeared on the Art list art@wetheliving.com on 2000, August 3. It sparked a little debate there. Also, a reviewer in Reason magazine also saw some of the same things I did. See "Beyond Taste: The perils of defining art" by Charles Oliver. This does not mean I completely agree with Oliver.]
Though I found What Art Is: The Esthetic Theory of Ayn Rand by Louis Torres and Michelle Marder Kamhi generally agreeable and, where it was not agreeable, thought provoking, the last chapter leaves a lot to be desired, especially the section dubbed "Art and the Law." Here they start out discussing copyright protection and move on to censorship. So far, so good. The bizarre thing is that their stance, while not openly supporting censorship, lays the intellectual groundwork for would be censors.
They appear to slip right into the, sad to say, typical Objectivist-as-a-conservative mode of thinking. Instead of questioning laws against pornography (p296) and other prohibitions of self-expression such as flag desecration laws (pp294-5) – regardless of whether that expression is art or whether it is tasteful or whether it follows alleged community standards – they assume these laws are valid and show how their otherwise clear and rational view of art can bolster irrational and oppressive laws.
What is even stranger here is that Rand herself spoke out explicitly against censorship laws, including those against pornography, for both being vague and injurious to a free society and individual human life. (On the vagueness issue: What, after all, are "community standards?" Why should experts or a jury get to decide them for all of us? Certainly, the makers and would be consumers of censored materials are part of the community.) Nowhere in their book do they acknowledge her stance on this subject.
Though Torres and Kamhi are quick to call such things – pornographic photos and flags stuffed in toilet bowls – non-art (and rightfully so in these two cases) that such material is not art is not and should not be the standard for keeping any government's hands off. The standard, in fact, should be one that is well known in the Objectivist movement: Does it violate anyone's individual rights. If not, the government has no right to interfere, regardless of whether the work is art or even tasteful. If it does, then it would not matter if it were art, it would still be something subject to government involvement.
The primary question in this setting then should not be "Is it art?" – a question government should keep its hands off – but "Should governments even be allowed to legislate or adjudicate these issues?"
While they distinguish between "art and other forms of 'expression'" (p294), they do not see that basically the same legal limits should apply to both. All human works (and actions) embody values in some way – i.e., are forms of expression in some sense – whether they be art, bridge building, or making breakfast. Freedom of expression – not to be confused with narrow legal definitions which only acknowledge it in a legal context – covers all of these, from creating and experiencing art to running a business to style of dress (or undress) and the like. (If only art is granted full protection, then the government will have a free hand everywhere outside the gallery, concert hall, library, and cinema.) They repeatedly rely on very narrow, status quo definitions of law, never questioning whether these laws are right – except in so far as the laws agree or disagree with their definitions and theory of art.
On the issue of child pornography (see pp296-7), they ignore that in the United States, any photograph or depiction of child nudity has time and again been considered by the courts to be child pornography. Nudists who videotape or photograph their families – with no intention of calling such stuff art, much less broadcasting it on TV or hanging it in a gallery – are often tried for child pornography – tried and convicted. It's another discussion here of just what should be done about child pornography, but a vague legal stance should not be tolerated. After all, people are doing jail time over such vagaries.
Torres and Kamhi even go so far to admit elsewhere that standards of quality are basically subjective. (p467 n35) With this in mind, might not, say, the rape scene in The Fountainhead be considered purely pornographic? Is it a good candidate for banning? This does not mean the distinction between pornography and art is blurry, but illustrates that within the current cultural context, where remaining silent on these issues might lead. Books have been banned in the US and elsewhere for less titillating passages.
Also, they do not consider that such laws in themselves invite people to challenge them, thus setting us up for making this into a politically charged issue. (One writer, several years ago, suggested banning the works of the Founding Fathers, so that these works would become more widely read.) This distracts attention away from the matter they should be concerned with – i.e., is it art?
The policeman, the army, and the courts – to use Rand's trinity – have no role in this process, other than to uphold individual rights. I hope Torres and Kamhi see this and that, perhaps, somehow their intentions differ from what was actually printed in their book.
Also, the argument that this is basically an esthetics book will not hold water here. One would not write a book on Objectivist metaphysics and conclude with a discussion supporting socialism, then argue that this is just a book on metaphysics so it's political conclusions should not be scrutinized.
For the record, this one section should not damn the whole book, which is a wonderful and detailed examination of Rand's esthetics, Modern Art, and 20th century esthetics. It will, no doubt, be the source of much esthetics discussion in and (hopefully) out of the Objectivist movement for years to come.