Violent imagery has a long tradition in art, and is generally shielded from government censorship. However, the government may be able to regulate violent sexual content or art that encourages violence, regardless of whether the art actually depicts violence.
In recent years, legislators have frequently targeted violent video games for regulation. So far, all of the laws that have aimed to limit kids’ ability to access violent games have been ruled to violate the Constitution, but this is still a frequent subject of legislation and litigation.
If your art includes violent content, be aware that the current strong First Amendment right you have to create and disseminate violent content continues to be challenged. You should also keep in mind that the terms of service of the website or server that hosts your material can prohibit you from posting violent content.
One of the few instances where the government can regulate or penalize violent content without violating the First Amendment is if it contains sexual material that is deemed to be “obscene.” (See our pages on sexual content for a discussion of the legal definition of “obscene.”) If violence is displayed together with very explicit sexual images, a judge might consider the work as a whole to be obscene, and therefore illegal. While the government can ban obscenity outright, the standards for finding content to be obscene are high, and most mainstream art won’t fall into this category even if it contains what some people would consider pornographic content.
The video gaming industry has recently faced frequent attempts by the government to censor violent content. A number of states and cities have passed laws to limit children’s access to violent video games, but judges have thus far decided that these laws violate the First Amendment and so are not enforceable. A case is pending in 2010 in the U.S. Supreme Court on this issue, and thus there is some chance the law concerning violent content could change.
The ratings that are used to categorize video games (as well as television shows and movies) as appropriate for children, teenagers, or adults are all a result of voluntary efforts by the industry to enable their customers to make more informed media choices. The government can’t require companies or individuals to label their work as containing particular content, especially content deemed problematic by the government. Such “compelled speech” also violates the First Amendment.
Because the First Amendment only prohibits the government from censoring or regulating violent speech, an artist is more likely to run into restrictions developed by private entities such as website operators and web hosting companies. Many major Internet service companies maintain websites that permit users to post content or provide server space for individuals to run their own websites. These services often have rules against using their services to post “graphic or gratuitous” violent imagery, and they may take down content that violates their rules. These private companies are within their rights to do this, and it is important for you to understand a sites terms of service, so that you know what can be posted and what the risk is that art with violent imagery might be taken down. For more information, read our discussion of Terms of Service Violations.
Under the First Amendment, art that directly incites or encourages others to be violent can be restricted or penalized. Regardless of whether your art depicts violent images or sounds, if it strongly encourages others to be violent toward specific individuals at a certain time and place, it could be deemed to be illegal. The standards for “threatening” speech are fairly high: there has to be a true threat of violence where the work is aimed at encouraging specific violent acts in the very near future, especially against particular individuals or groups of people. General encouragement of violence (even in in the context, for example, of urging overthowing a government) is usually not enough to be considered a true threat, and should be protected.