One of the things I will be doing in this piece is to defend the right of bad art to be fully protected under the Bill of Rights as a form of speech. To do this, I will use the Berkeley performance group known as the X-plicit Players as an example of bad art.

Before we get to the particular case, we should lay out some universal truths:

Bad art is the manure from which good and great art springs. All artists have done some bad art. A large percentage of art could be called bad art. In other words, you can not have any art without having bad art anymore than you can have any science without having most experimentation be "failures". So we have to protect the right and the freedom to do bad art. We also have to keep the government out of art criticism.

Now for the background to the particular case. Berkeley until this year has not had a law against public nudity. In fact, over the years, performance artists such as Paul Cotton and myself have done "street pieces" containing nudity in Berkeley with community acceptance and support. But about two years ago, public nudity became a political issue. A U.C. student, Andrew Martinez, who the media dubbed The Naked Guy, began going to his classes and walking around town nude. Martinez seems to be an idealist suffering from naivete...which is natural at his age. The college administration, as is the nature of the beast, expelled him.

Around this time, the X-plicit Players began to affix themselves to the controversy by walking nude around town and sitting in coffeehouses wearing only chips on their shoulders...and of course being with Martinez when the cameras were on him. In art, using confrontation, in-your-face methods are very valid to incite change. In bad art, confrontation is often used for calling attention, recognition, to the artist creating an arrogance around the artist. All of which may be an unavoidable, if embarrassing, stage in an artist's development. Be that as it may, the tactics that the X-plicit Players used created considerable resentment in the community. That resentment was transferred to public nudity in the minds of a sizeable portion of the community, a community that usually prides itself on its openness, tolerance, and freedom. One of the functions of art is to offend, to create tension by revealing hidden aspects of life. The bad artist does this for his own aggrandizement or other questionable motives. But to keep our freedom, we must remember that we do not have a right to not be offended.

At this point, a Berkeley council-person, who for some reason does not want her children to see nude bodies, used this built-up resentment to push through a very reactionary law against public nudity. So the home of the Free Speech Movement now has a law that is clearly unconstitutional, a law that not only outlaws public nudity, but outlaws a lot of different kinds of clothing (including a lot of swimsuits ... unintentionally).

To be a test case of an clearly unconstitutional law is the easiest ... and one of the best ... ways for an artist to get in the papers and in the history books. One of the exceptions to the nudity law that the "liberals" wrote into the law to ease their consciences was theatrical events. That is, public nudity in theatrical events is permitted. So the X-plicit Players apparently put on a street theater event. And they were arrested.

Now we come to the meat of my essay. If the X-plicit event was held in a theater, in a performance space, in a gallery, the X-plicit Players would not have been arrested because the logic of the cops would be "it's in a theater, so it is theater". The logic of the arrest was "it isn't in a theater, so it is not theater, thus it is covered by the anti-nudity law". The issue is not whether the X-plicit Players are good or bad theater/art. Rather, the issue is are they theater/art, thus under all of the protection afforded to theater/art. But the core issue is can the government decree that the S.F. Mime Troupe, the satirist/humorist Stoney Burke who works the crowd on Sproul Plaza, street theater, union theater, performers like myself, are not theater or art when we do our work outdoors, in public, in the parks, etc. No matter what I or anyone else think of their work, the X-plicit Players are a theater/performance group.

Although the charges were finally dropped, the bad logic of the judge at the hearing on the constitutionality of the charges is frightening. Judge Ron Greenberg's decision was "I don't know this is a live theatrical performance deserving First Amendment protection". Greenberg explained that he had difficulty in finding a satisfactory legal definition of a live theatrical performance. Because this performance included spontaneity, he decided to rule that the performance would be viewed as "conduct" and not as "speech" and therefore was not protected by the First Amendment. Greenberg seemed afraid that a member of the audience might "spontaneously" at some future performance, decide to have sexual intercourse.

Let's run that by again. A performance that has any kind of spontaneity is not speech, and thus not protected .... because of an unknown possibility which may or may not happen sometime in the future! That would include any work containing any space of freedom, including improvisation, jamming, jazz, dancing, and on and on. Like I said, it is very frightening!

You bet I would say the X-plicit Players are art and theater. Freedom and art are worth it.

Frank Moore
October 28, 1993

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