Last November, less than two weeks after Donald Trump was elected president for a second time, the Modern Art Museum of Fort Worth, Texas, launched an exhibit featuring some of America’s foremost photographers, including Nan Goldin and Sally Mann. “Diaries of Home” collected works by female and nonbinary artists “who explore the multilayered concepts of family” and “challenge documentary photography by pushing it into conceptual, performative, and theatrical realms,” according to the exhibit précis, which noted that it “features mature themes that may be sensitive for some viewers.”
The opening of “Diaries of Home” was uncontroversial, but come January, a chilling scene unfolded at the museum. Armed with a warrant, Fort Worth police reportedly seized five photos from the exhibit and put them under lock and key—all because a few Republican officials and pearl-clutching Christian activists had taken offense. It’s a tableau reminiscent of an autocracy, yet it’s happening in America today. Caught in the maw of vague laws, government overreach, and moral panic, art museums have become the latest battleground in an escalating assault on cultural institutions.
The photos in question came from Mann’s 1990 collection Immediate Family, a groundbreaking series documenting her family’s life on their rural Virginia farm. None of the photos in “Immediate Family” depict sexual conduct. But 13 of them show her children in the nude, and some were included in “Diaries of Home.” One photograph depicts a magnified portrait of her nude son’s torso, covered in what appears to be a melted popsicle; others show her nude daughter leaping onto a picnic table, lying on a bed next to a bedwetting stain, or resting with a flower on her torso.
“Immediate Family” is Mann’s most famous collection, in part because of the controversy it generated when it debuted 35 years ago. But these enigmatic, provocative black-and-white images are also rightly celebrated for exploring the complexities of childhood, family, and the American South. The Met and the Whitney hold works from “Immediate Family” in their collections, and Time named her “America’s best photographer” in 2001, writing that Mann captured a “combination of spontaneous and carefully arranged moments of childhood repose and revealingly—sometimes unnervingly—imaginative play.… No other collection of family photographs is remotely like it, in both its naked candor and the fervor of its maternal curiosity and care.”
A quarter-century later, Texas police officers treat some of the photographs that led to Mann’s acclaim as evidence in a criminal investigation. And the images only came to their attention thanks to a controversy manufactured by conservative political activists.
In late December, a “concerned citizen” complained about “Diaries of Home” to the Tarrant County Citizens Defending Freedom, a Christian MAGA group, as well as to the conservative news site The Dallas Express (which titled its first story on the subject, “EXCLUSIVE: Is the Modern Art Museum of Fort Worth Promoting Child Porn?”). The Express subsequently located one other “appalled” resident, and eventually got the attention of far-right Tarrant County Judge Tim O’Hare, who told the outlet, “There are images on display at this museum that are grossly inappropriate at best. They should be taken down immediately and investigated by law enforcement for any and all potential criminal violations. Children must be protected, and decency must prevail.”
A couple of other elected Republicans hopped on the outrage bandwagon, as did the D.C.-based Danbury Institute, an extreme anti-abortion group, which launched a petition stating that “the exhibit as a whole effectively works to normalize pedophilia, child sexual abuse, the LGBTQ lifestyle, and the breakdown of the God-ordained definition of family.” But then O’Hare, whose elected office is similar to that of a city mayor, escalated matters by filing a criminal complaint alleging the nude photographs constituted “child pornography” and demanding that Fort Worth police remove them from public view.
The police did just that, and today they refuse to return the photos as they investigate potential child sexual abuse. Though the confiscation has caught the attention of the American Civil Liberties Union and the Foundation for Individual Rights and Expression, no lawsuits have been filed over it. Though a legal battle is far from certain, it has the potential to reshape how the courts view provocative art—for better or worse.
To be clear, Mann’s photos are not the product of child sexual abuse. Over the three decades since she released “Immediate Family,” they have never led police to charge her with a crime. Yet they have been ensnared in a legal and cultural debate that pits artistic freedom and the First Amendment against subjective morality and governmental overreach in defining child pornography.
The First Amendment does not protect child pornography, an exception that the Supreme Court carved out in the 1982 case New York v. Ferber. But the court did so with a clear intent: to combat the exploitation of children. The justices took care to distinguish child pornography from legitimate artistic works and family photographs. As Mann herself observed in 2015, “All too often, nudity, even that of children, is mistaken for sexuality, and images are mistaken for actions.”
But over the decades, lower court judges have alarmingly expanded the legal definition of child pornography, particularly through the controversial Dost test. Developed by a California district court in 1986 and embraced by most federal courts after Ferber, this vague test allows images to be classified as child pornography based on whether they might be perceived as “lascivious” by hypothetical deviant viewers. The test’s subjectivity and capaciousness can transform innocent images into criminal material when viewed through a pedophilic lens; as one federal court noted in 1999, it could turn even a “Sears catalog into pornography” in the eyes of a sexual deviant. Indeed, under Dost, federal courts have found fully clothed depictions of children to meet the definition of child pornography.
Centering whether a pedophile might find a particular image arousing forces a sexualized view onto nonsexual imagery, effectively doing the very thing it purports to prevent: sexualizing children. This approach not only threatens artistic expression but diminishes the gravity of child abuse. “Sexual exploitation of a minor, including under the guise of art, should never be tolerated,” O’Hare contends. But conflating sexual exploitation with Mann’s textured examinations of childhood reveals a profound misunderstanding of both art and abuse. Notably, Mann’s children have grown up to become staunch defenders of their mother’s work and their participation in it, with her daughter dismissing the controversy over “Immediate Family” as “puritanical idiocy.”
The Dost test provides convenient cover for puritanical politicians to suppress artistic expression. Consider O’Hare, who now governs the nation’s fifteenth-largest county after campaigning as a Christian culture warrior. The test creates enough legal ambiguity from him to cloak his political theater with the appearance of legitimate criminal law enforcement. Even if the police return the art, Dost dangles like a sword of Damocles over the museum, threatening to fall at any moment based on the subjective judgments or political ambitions of local officials.
Mann is an easy scapegoat, but the censorship championed by O’Hare and his allies won’t stop at a single artist. Some of the Christian groups backing O’Hare also object to art depicting adult nudity, same-sex relationships, and gender nonconformity. By insisting public art should uphold biblical “moral standards” rather than showcase “radical perversion,” they reveal their ignorance of art’s actual content or context. One wonders if they will soon demand fig leaves for Michelangelo’s David, or perhaps a tasteful sweater vest for Botticelli’s Venus.
The Mann controversy reflects the convergence of rooted trends and new developments. Artists and curators in recent years have already been self-censoring work involving children, at times removing it from view in anticipation that it might be misconstrued and lead to prosecution for crimes that carry draconian penalties. More frequently, museums are quietly excluding art from exhibitions from the jump. Leading curators, for example, have deliberately left out Robert Mapplethorpe’s portraits of children from his 1990 collection “A Perfect Moment” from their exhibitions and websites in retrospectives on his work.
These long-term cultural currents now collide with a new administration in Washington. President Trump’s return to the White House has emboldened Christian nationalists to advocate for state censorship and Victorian-era prudery. Efforts to revive the Comstock Act—a once obscure anti-obscenity statute that many in the anti-abortion movement hope to weaponize against medication abortion and birth control—represent the vanguard of this revanchism. But this cultural counterrevolution has broader aims beyond reproductive rights, seeking to narrow representation of race, gender, and sexuality in public spaces, museums, and educational institutions.
One crucial buffer protecting Mann’s work has been prosecutorial discretion, a long-standing common law tradition that explains why one doesn’t usually hear about museum raids. This guardrail has been fraying in the MAGA era, and the prosecutors in Trump’s current administration show increasing willingness to bulldoze through established norms. Ed Martin, the Trump-appointed acting U.S. attorney in D.C., has taken the unprecedented step of seeking a grand jury investigation into Senator Chuck Schumer over his criticism of the Supreme Court—signaling how once-unthinkable prosecutorial overreach might soon extend to cultural institutions. We now face the very real possibility that federal child pornography laws could be exploited by prosecutors advancing the president’s personal vendettas and his base’s theocratic preoccupations.
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.
