‘Anti-Fascist’ Exhibit Stirs Controversy at Campus Museum

For months, East Tennessee State University’s art museum displayed without issue a provocative piece of art depicting a conservative politician as a fascist. But in the last two weeks, the exhibit—which closed as scheduled on Dec. 6—became mired in controversy after Republican lawmakers took note and began calling for its removal in late November.

In response, on Dec. 2, ETSU’s Reece Museum introduced a content warning and started requiring viewers to sign a waiver before entering the exhibit, “Evolution” by Joel Gibbs, which shows U.S. House Speaker Mike Johnson in front of swastikas morphing into crosses.

The move drew the ire of free speech groups.

“While the content warning, prejudicial as it is, is not something entirely alien to the museum context, the mandatory consent waiver is an unprecedented requirement for a political art exhibition,” said a joint statement published by the Foundation for Individual Rights and Expression and the National Coalition Against Censorship last week. “It improperly burdens visitors who want to see an exhibition and demands that they surrender their anonymity and privacy in a political context that is obviously hostile to the views in the exhibited work.”

Outside legal experts told Inside Higher Ed that making people sign a waiver to view the exhibit may amount to questionable policy, but that a university likely has the constitutional right to display—or not display—artwork in its museum. Legal questions aside, the controversy has become one of the latest examples of politicians attempting to influence expression on college campuses.

The now-controversial piece has been on display at the museum since September as part of the FL3TCH3R Exhibit, a long-running annual juried show focused on socially and politically engaged art.

While there was no particular theme for this year’s exhibit, Carrie Dyer, co-director of the exhibit, said in a July news release calling for submissions that the exhibit is committed to social justice and supports “artwork that advocates for democracy, voting rights, and confronts systemic racism.”

Anti-Hypocrisy or Anti-Christian?

Gibbs, who has had work displayed in the FL3TCH3R exhibit in years past, told Inside Higher Ed that the piece he entered this year, alluding to the rise of fascism among right-wing Christian politicians, was intended to convey a message of “anti-hypocrisy.”

Tennessee congresswoman Diana Harshbarger saw it differently.

“I am deeply appalled by this hateful display and equally disappointed it has been permitted on the campus of a taxpayer-funded institution,” she told a local television station in late November. “It’s an abhorrent mockery of my Christian faith and associates many of my close colleagues with such hateful symbolism.”

She and other conservative state and federal lawmakers demanded that it be “taken down immediately,” but ETSU president Brian Noland refused.

He wrote in a statement to Inside Higher Ed that although he “personally find[s] some of the ideas expressed to be deeply offensive and simply despicable,” he couldn’t, “in good faith, censor this exhibit because doing so would run counter” to Tennessee’s laws protecting campus free speech, even when “the ideas put forth are thought by some or even by most members of the institution’s community to be offensive, unwise, immoral, indecent, disagreeable, conservative, liberal, traditional, radical, or wrong-headed.”

Instead, during the exhibit’s final week on campus, the university opted to “put in place protocols we have developed to handle highly controversial subjects and events,” he said.

That included partitioning off the piece, posting warning signs noting its “handling of disturbing, divisive, sensitive, and mature subjects,” and allowing people “to observe the exhibit only after reviewing and signing a waiver.”

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FIRE and NCAC took issue with the solution, asserting in their statement that it signaled the university’s implicit “siding with the position of the exhibition’s critics and imposing it upon viewers.”

Jess Vodden, an ETSU spokesperson, clarified in an email to Inside Higher Ed that the university has enacted similar protocols in the past and doesn’t discriminate based on the political viewpoints of the subject or event.

“We also have used curtains and stanchions/roping to signal that people are entering an area where mature, sensitive or potentially disturbing content is being shown or displayed,” she wrote. “For example, one of the politically conservative student groups on campus has shown controversial films in our student center in the past, and these methods have been employed.”

But Vodden said she’s not sure if any of those other instances involved requiring people to sign a waiver.

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The waiver is what free speech advocates are most concerned about.

“The inflammatory and sensationalist waiver is likely to deter many viewers from seeing the exhibition and engaging with its artworks,” read the statement from FIRE and NCAC. “It does little to inform visitors, but rather tells them how those in power want them to view the exhibition. It also puts each visitor on notice that their identifying information will be collected in a list of all those who have attended an exhibition ‘disfavored’ by government and school officials.”

Aaron Corpora, program officer for FIRE’s campus rights advocacy division, said in an email to Inside Higher Ed that the waiver requirement “violates the right to anonymity by requiring visitors to identify themselves to the government before engaging with the art,” citing U.S. Supreme Court case law (McIntyre v. Ohio Elections Commission, 1995), which has upheld both anonymous expression and the right to listen to or receive messages.

FIRE “has documented instances of art censorship from across the political and ideological spectrum for its entire existence,” Corpora said. “This most recent episode at ETSU shows again that administrators and officials can be too quick to abandon principle and put burdensome restrictions around disfavored expression.”

Government Speech?

Josh Blackman, a constitutional law expert and associate professor at the South Texas College of Law in Houston, said he’s not sure why a waiver would be needed for the artwork that was on display at ETSU.

“What is the liability?” he said. “And if there is no actual risk of liability, then perhaps the waiver itself is given for a different reason—to discourage people from attending.”

He noted, however, that as a matter of law, he’s not aware that the McIntyre v. Ohio case “has been extended more broadly to a general right of anonymity—especially when one is seeking access to government speech.” He said as far as he knows, it’s common practice that “anyone who enters any government building must provide ID, even if going to some sort of public hearing.”

Furthermore, Blackman said, he’s not sure the principles of academic freedom extend beyond the classroom into a university-run museum.

“People don’t have a constitutional right to access an art gallery,” he said. “There’s protection for speech in an academic context, but I don’t know that it extends to the government display of artwork.”

Eugene Volokh, a professor at the University of California, Los Angeles, School of Law who is considered one of the nation’s leading free speech experts, also believes the artwork displayed in a government-funded museum like ETSU’s can be considered government speech.

“The people who chose this painting were deliberately using university property to send a particular partisan message that is deliberately targeting a particular set of religious believers,” he said. “And then some other people who had different ideological views said, ‘We don’t like government property being used to send this particular highly partisan message.’”

At its core, “this is a dispute over what kind of partisan advocacy should be displayed on government property,” Volokh said. “Unsurprisingly, government officials have views about it.”