This perilous moment requires both legal reform and cultural
reflection. Most crucially, the Supreme Court must offer guidance on what
constitutes a “lascivious” image and what differentiates such an image from
constitutionally protected artistic depictions of children, clothed or
otherwise. This definition should foreground the actual depiction of the child
in a photograph, not the potential reaction of the photographer or a consumer. This
change will require rolling back the judicially created Dost test
and existing lower court precedent that permits interpretation of images
through the voyeuristic gaze of a pedophile. In recent years, the Supreme Court
has declined to hear multiple cases that could have curtailed or eliminated the
Dost test, devoting
its attention to a mix of high-profile cases advancing the goals of the
conservative legal movement and technical ones lacking public salience.
Ultimately, debates over controversial art belong not in
courts but in the cultural sphere—in galleries, academic journals, and public
discourse. Mann’s art has always had its thoughtful detractors, some of whom
view “Immediate Family” as an ethically dubious spectacle. But they have
defended its place in museums and the artistic canon, engaging in the nuanced
dialogue that sustains and enriches art criticism. Writing for The New
Republic in 2015, Cara Parks observed
that Mann’s photography can simultaneously be “arrestingly beautiful” and
“troubling.” Like much good art, it is precisely this unresolved tension—the
inability to neatly categorize Mann’s work, the coexistence of conflicting narratives—that
gives it power and cultural significance.
It’s the religious crusaders and political opportunists we should
truly fear—those who seek to weaponize state power to enforce their own moral
preferences. They increasingly have the ear of elected Republicans in
Washington and across the country as they seek to impose a singular vision on a
pluralistic society. The seizure of Mann’s photographs endangers much more than
one artist’s legacy or one museum’s autonomy; it’s a threat to First Amendment
protections and to important art that dares to challenge us.
