Fort Worth police seize photographs of nude children from museum, ACLU claims First Amendment violation

FORT WORTH, Texas - In November, the Fort Worth Police Department removed photographs at the Modern Art Museum of Fort Worth from an exhibition by the artist Sally Mann in what the ACLU of Texas calls a violation of the First Amendment. 

Three civil liberty organizations sent a letter on Wednesday, demanding the police department "end its unconstitutional censorship and seizure of several pieces of art that were on display."

The Exhibit

The Modern Art Museum of Fort Worth began hosting an exhibition in November called "Diaries from Home," featuring works that "explore the multilayered concepts of family, community, and home." Included in the collection were photos from Sally Mann’s 1990 collection "Immediate Family." 

Mann’s collection featured an "intimate and candid look at her family’s rural life," the ACLU said in a news release.

Of the 65 photos in Mann’s "Immediate Family," 13 showed her children in the nude. The selection of nude photos displayed in the Modern reportedly included depictions of Mann’s daughter jumping onto a picnic table in a ballet pose, Mann’s daughter lying in bed with a stain from a nighttime accident, and Mann’s son with a melted popsicle running down his body. 

"Immediate Family" was controversial even at its debut decades ago, but has been showcased in more than a dozen art galleries across the world, including the National Gallery of Art.

The Investigation

Fort Worth police seized the few pieces of artwork last month as part of an investigation. The rest of the collection was on display at the museum until the end of the exhibit, through February 2, 2025.

What they're saying:

Some local officials publicly condemned the images. 

One of the officials, Tarrant County Judge Tim O’Hare, posted on X saying, "The images of children reported in the media at the Modern Art Museum of Fort Worth are deeply disturbing. Sexual exploitation of a minor, including under the guise of ‘art,’ should never be tolerated. I have full confidence in law enforcement to thoroughly investigate this matter and take appropriate action. I will always be committed to protecting the most vulnerable members of society, our children."

After the comments were made, the Fort Worth Police Department seized several of Mann’s portraits from the exhibit as part of a criminal investigation into potential child abuse.

On Wednesday, after the ACLU sent a news release, FOX 4 News asked Fort Worth Police for a statement on the seizure of the photographs. The Public Relations Team responded with, "This is still an ongoing investigation. We don't have any new information to release."

The other side:

According to the ACLU, all of Mann’s children, as adults, continued to support the collection and their mother and have never once suggested they were abused. 

"It's shameful that government officials would use the criminal legal process to censor art and expression," said Adriana Piñon, legal director of the ACLU of Texas. "This is a clear violation of the First Amendment and of the guardrails against abuse of the criminal justice system. Artistic expression should not be subject to the whim and punishment of government officials' personal taste."

"Anyone who's ever taken a photo of their child or grandchild taking a bath understands that not all photographs of child nudity are malicious, let alone child abuse," said Aaron Terr, director of public advocacy at FIRE. "The seizure of Mann's works is an egregious abuse of power that dishonestly conflates artistic expression with sexual exploitation."

"Publicity stunts like this one — in which artworks that have been shown and discussed for over 30 years are suddenly the focus of an unfounded ‘investigation’ — do nothing to protect victims of child abuse, and serve only to chill the creative expressions of artists and cultural institutions by subjecting them to the threat of political prosecution and the unconstitutional seizure of artwork," said Elizabeth Larison, director of NCAC’s Arts and Culture Advocacy Program.

The photographs remain in a police storage facility, according to reports from the ACLU. 

Sally Mann

Sally Mann is a renowned photographer with accolades from the National Endowment for the Arts, the National Endowment for the Humanities, and the Guggenheim Foundation. 

As she describes this specific group of photographs, "I photographed their triumphs, confusion, harmony and isolation, as well as the hardships that tend to befall children — bruises, vomit, bloody noses, wet beds — all of it." 

The First Amendment Argument

The photos under investigation are entitled to full First Amendment protection, according to the ACLU. "The works are not the product of child abuse, and they are neither intended nor designed to excite lust in the viewer. They do what much art does — convey ideas and invite viewers to reflect on the human experience," the news release states.

"Both the creation and dissemination of photographs are ‘inherently expressive’ acts protected by the First Amendment. The ‘First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content,’ except in a few ‘well-defined and narrowly limited classes of speech,’ such as defamation, incitement, obscenity, and child pornography. No such exception applies to Mann’s photographs."

The ACLU says the works do not meet the legal definition of "obscenity."

"This should be common sense to anyone familiar with the iconic "Napalm Girl" photograph, National Geographic documentaries, or even major Hollywood films like the 1978 version of "Superman," the ACLU states.

In Miller v. California, the Supreme Court adopted a three-part test for determining whether expression is legally obscene. 

• A work may be banned as "obscene" only if "taken, as a whole," the "average person, applying contemporary community standards" would consider it to "appeal to the prurient interest";
• it depicts or describes "sexual conduct" in a "patently offensive" manner;
• and it lacks "serious literary, artistic, political, or scientific value."

Works must meet all three prongs of this test to fall outside the First Amendment’s protection.

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