It looks like Shaw’s may have violated its own policy in banishing copies of the Portland Phoenix, which carries an inside-the-paper nude photo of the late Allen Ginsberg and his lover, Peter Orlovsky, to accompany this article. In a statement reported by the Portland Press Herald, Shaw’s spokeswoman Judy Chong says:
“It’s not our policy to censor material produced by an independent publisher if the material falls within the guidelines of the law and is not considered patently obscene or offensive. Shaw’s reviewed the content of this publication and decided to remove the paper based on the nude images.”
If you want to parse this legally, you’ve got to put a lot of weight on the word “offensive.” Because something that is obscene under the Supreme Court’s Miller v. California standard is, by definition, illegal — not that there’s always any sure way of knowing in advance whether it’s obscene. But there is no way that this particular image could be considered obscene. It doesn’t depict sexual acts, and it obviously has artistic merit.
Shaw’s clearly has the right to ban anything it wishes. I’m just pointing out how far off Shaw’s is in invoking obscenity as a reason for removing the paper.
After all, the photo is freely available on photographer Elsa Dorfman’s Web site (that’s her at the top of this item) and, as Phoenix editor Peter Kadzis tells the Press Herald, is on permanent display at the Museum of Fine Arts. So far, the anti-obscenity cops at the FBI have not descended on either Dorfman’s studio or the MFA.