Citizens of Johnson County v. Two Bare Breasts

A set of bronze boobs has sent a group of citizens in Kansas into a tizzy. Offended by a statue depicting a woman's breasts, they are now stepping up their fight against a statue in the Overland Park Arboretum, just south of Kansas City.

"Accept or Reject" (pictured above) is a bronze sculpture donated to the arboretum by sculptor Yu Chang, depicting a fractured, topless woman taking a photograph of her exposed (bronze) breasts. In 2012, a group of Kansans, organized by the American Family Association (AFA), circulated a petition to convene a grand jury for the purpose of deciding whether the popular statue was illegally "obscene." They got the necessary signatures, and a grand jury of Kansas citizens gathered to… criminally investigate the statue. Fortunately, the grand jury looked at the statue, looked at state obscenity law, and determined that the "sculpture in question did not meet the legal definition of obscenity." While the sculpture avoided a criminal record, the taxpayers didn't avoid a hefty bill for this misguided attempt to criminalize art. According to city officials, they spent over $35,000 to defend the statue in her bare-breasted glory. Undeterred, the AFA is now leading a second attempt to bring the sculpture to criminal court.

How is this even possible? First, a bit of background.

Kansas is among a small handful of states that have a citizen-empanelled grand jury law on the books. Under this process, a group can start a petition drive to seek a particular criminal indictment. If they reach the required number of signatures — around 4,000 in Johnson County, Kansas — a grand jury is empanelled to investigate violations of Kansas law. But until this year, the citizens' influence over the process stopped there.

That changed in 2013. Angry after a string of grand juries failed to return indictments alleging illegal abortion and pornography, groups like Kansans for Life advocated for a bill expanding citizen involvement in the grand jury process. The bill passed and is now law. Now the law requires the grand jury to call the petition organizer as its first witness, and permits the jury to pay for a special counsel or investigator of its choosing — even to replace the government prosecutor. Empowered by the expanded role of citizens in the grand jury process, the AFA is taking a second swing at the bronze breasts in the arboretum, and has started a second signature drive.

In the overwhelming majority of states, it is the government prosecutor, bound by both legal ethics and an oath to the U.S. Constitution, who acts as gatekeeper to our criminal justice system. It is critical that the indictment process is governed by considerable legal judgment and sensitivity to constitutional rights. In fact, you might call those protections the beating heart of our apolitical justice system. The AFA's repeat attempts to morph art into obscenity perfectly illustrate the constitutional risk in turning the criminal justice system over to private citizens.

Running afoul of the First Amendment

The First Amendment, and the opinions of the Supreme Court, hold this kind of art to be protected expression, not criminal obscenity. Under the law, "obscenity" has a specific meaning: it's something that appeals to a "prurient" interest (that is, it's sexually exciting) and is devoid of any cultural, literary, or artistic merit. That's a tough bar for any sculpture to meet, since regardless of whether any one individual values or likes a particular piece of art, it's incredibly difficult to prove that a piece of art is devoid of artistic value as a whole. And repeatedly bringing a piece of art into the criminal justice system is not only unconstitutional, it risks chilling future artistic work. If the people of Florence had threatened to haul Michelangelo's David before a people's tribunal, he might never have gone on to paint all those nudes in the Sistine Chapel.

So, let's say AFA were to succeed in its second go-round, and convince a grand jury that the statue qualifies as evidence of a crime. What would city officials have do? First, they'd have to figure out whom to indict. The AFA's first petition didn't specify whom — or, perhaps, what — would be indicted. Just that the "alleged violation" was the "sculpture" itself. And if city officials did act on an indictment — perhaps against the sculpture, the artist, the arboretum, or the city itself — the $35,000 it cost the city to defend the statue would be just the beginning for the taxpayers of Johnson County, who would then be vulnerable to constitutional arguments that any indictment ran afoul of the First Amendment. (Psst: if any Kansas judges are reading this, the ACLU would be delighted to be appointed to represent the statue in court.) So, the grand jury proceeding can only lead to one of two outcomes: An empty symbolic gesture, or an expensive and unconstitutional criminal prosecution.

It's not news that boobs can set off controversy. After all, our own former Attorney General John Ashcroft ordered expensive curtains that hid the bare breast of the sculpture "Spirit of Justice." A federal court recently ruled that students have the right to wear "I (heart) Boobies" bracelets to school in support of breast cancer awareness, after school officials objected. Even the U.S. mint issued the short-lived "bare-breasted Standing Liberty Quarter," rescinded after public outcry.

In this grand American tradition of getting upset about breasts, the AFA and its supporters are in good company. They have every constitutional right to advocate against a topless statue, to collect petition signatures to plead their case with the city and ask for it to be moved or taken down, and to rally its members behind a campaign to install better-clothed public art. But our constitutional democracy does not allow a group of citizens to use the criminal justice system as a tool to censor constitutionally-protected expression. The same amendment — our first! — in all its wisdom protects both the statue's right to bare its breasts and the citizens' right to object to them. Just not to warp the criminal justice system to achieve an unconstitutional outcome.

Learn more about free speech and other civil liberties issues: Sign up for breaking news alertsfollow us on Twitter, and like us on Facebook.

View comments (8)
Read the Terms of Use


That reminds me of that statue of Persephone. I used to live with a doctor, and he ordered a statue of the Greek goddess Persephone to be placed in front of his house.
She was holding a bowl of fruit in front of her but you could see her bare breasts above it. Not in detail, and he got permission from the Homeowner's Association before he bought it. He was a doctor and given to logic, so he thought of the possible reactions he would get before he bought it. That's why he got permission from the Homeowner's Association.

But the parents in the neighborhood decided he was a terrible person for putting a statue like that in his front yard b/c they were sure it was going to psychologically damage their children should they see it while walking past his house.
So they made their kids walk on the other side of the street, and they weren't allowed to get candy on Halloween from our house.
I thought they'd lost their minds, personally, and decided I didn't WANT to know them if they were going to get that upset over Greek Mythology and assume it was something disgusting.

Then one day, we came outside to go to work and noticed that somebody had put a bra on the statue. He took it off and never returned it to whoever did it.
"Aren't you going to try to find out who did it and give them back their brassiere?" I asked.
He said once they put it on his statue in his yard they gave up the right to have it. He didn't try to find out whose it was and nobody came to claim it.

I don't understand why some people think EVERYthing's about the original sin. Even Classical Art.


The Grand Jury system is completely corrupt and should be abolished. It has been said a Grand Jury will indict a Ham Sandwich. These secret "Star Chamber" hearings where, in general, there is only a prosecutor and nobody to present a defense. The potential for abuse is just down from the FISC!


What could be obscene about a woman's breast? It is the source of nourishment for all infants! These people must think all nature is obscene. What idiots!
War is obscene, not nature.


To quote from the last paragraph of this article "But our constitutional democracy does not allow a group of citizens to use the criminal justice system as a tool to censor constitutionally-protected expression." While I agree with most of this story, I hesitate at the description of our form of government as a "democracy". That word does not show up in the Declaration of Independence, the Constitution or the Bill of Rights. A more accurate description would be a "constitutional republic". It appears our schools are not doing a good enough job of teaching the difference. Many, if not most of the earliest settlers who established roots in what would become the United States of America were minorities from numerous countries around the world who came here to escape "off-with-your-head" mob rule democracies.


Only in Kansas would such nonsense be tolerated - or maybe Texas! Good grief

Wait, this is nothing and we have a much bigger problem in our hands! If I tell you I uncovered a wide open public timeline with 3 years of porn featuring men feeding each other seminal fluid by the bucket would you believe me?


Now, if I tell you I reported 50+ pieces of that content and received responses back from Facebook’s users operations’ team claiming it does not violate guidelines, refusing to remove it… would you believe me? That is when I took it straight to Facebook’s COO Sheryl Sandberg:

That is hard proof that they can’t even see pornography to star with! I guess I figured why and it helped to be a software engineer specialized in social media… I believe if you post content on Facebook using third party APIs such as Twitter, it will elude the reviewers at Facebook who don’t seem to even see it.

I was so upset that I felt compelled to do something about it and spent the last 5 months accumulating official communication with Facebook executives, policy teams, its user operations and abusive content teams, and even created a nonprofit organization to deal with it, now getting ready to bring all parties involved into a courthouse for public explanations, including porn maker Paul Morris, his director of marketing Mitch Macon, and Facebook’s second in command Sheryl Sandberg.

Because apparently if I don’t call everyone out publicly, nothing get done:

More info :


There is a bare-breasted statue of Lady Justice in at least one of the Ninth Circuit Court of Appeals' main courtrooms in San Francisco. I remember arguing a case before an en banc panel who were reconsidering the unanimous ruling of a 3 judge panel who had earlier rejected a ban on possession of depictions of frontal nudity by inmates in the Maricopa County Jail system.

During oral argument, I made a point of reminding the judges that the policy in question would prohibit jail Inmates from possessing a photograph of the judges hearing arguments in the case because of the bare-breasted statue looming behind them. The panel apparently didn't appreciate the irony since they overturned the earlier panel's 3-0 ruling in a 7-4 opinion upholding the MCSO's ban on depictions of frontal nudity. Talk about snatching defeat from the jaws of victory.


It's funny and odd that nobody complains about the fact that the lady in the statue does not have pants on and she is fully exposed there! BTW - Her breasts are beautiful art as only god could create...

Stay Informed