Written by Larry Harvey, 2001
I’ve been asked to comment on the Jiffy Lube incident that occurred at Burning Man this year. For a useful overview, I recommend the article titled Burning Ban in the Reno News and Review by Deidre Pike.
As everyone knows by now, this year Jiffy Lube chose to erect a 12-foot tall sign in front of their camp portraying two men engaged in anal intercourse.
According to Ms Pike, “Police had driven by once or twice, taking pictures of the art. Then, on Thursday, Aug. 30, a deputy from the Pershing County Sheriff’s Office asked camp residents to take the sign down, possibly because of complaints from members of the nearby family camp”. She goes on to say that “Law enforcement officials said it was a violation of prevailing community standards”. Members of the camp refused to remove the sign. The following day members of the Black Rock Rangers attempted to mediate the dispute. In the course of a discussion with camp organizers they suggested — rather than ordered — that the sign be removed from the public thoroughfare. The Jiffy Lube crew again refused, and the Rangers then arranged a Saturday morning meeting between Jiffy Lube organizers, the county police and BLM officials. Here a compromise was hammered out. According to Ms Pike, it was agreed by all that camp members would remove the sign from the roadway. In exchange they would be allowed to “have a parade and demonstration in City Center – as long as the demonstration took place in the heat at high noon. Fliers were printed. And the police allowed the art to be driven through the streets on a pre-planned route, as long as rangers went ahead of the art warning parents that an offensive exhibit was coming through. By the time the art reached the center of black Rock City, a crowd of 300 to 350 protesters had gathered. After the parading of the structure through town, the art was taken back to Jiffy Lube, put on a trailer and driven to Harvey’s Camp”.
At this point, I would like everyone to take a deep breath and begin to calmly think about these events. The Sheriff’s department states — in both Pike’s account and others – that displaying this sign “violated community standards”. The question that remains for us to answer is exactly whose standards were violated. Did a twelve foot tall pornographic sign violate the standards of Black Rock City? Probably not. Neither Ms. Pike nor our Rangers have been able to find anyone who is willing to step forward and admit that they made a complaint. Even if an individual did complain to Sheriff’s deputies, I sincerely doubt anything resembling a “prevailing” standard could be deduced from this. Certain standards do exist, of course, and they are printed in our Survival Guide. Public defecation and public sex are banned in our city. We believe these practices are affronts to civic life. They cross the boundary between what should be private and what should be public. But I suppose that any survey of participants would reveal a widely shared feeling that First Amendment freedoms in our city are meant to be well exercised. Speaking for myself, I told Ms Pike that I am not aware that anyone – whether child or adult – has ever been corrupted by a sign.
However, this answers only half of the question. When the officer told Ms Pike that Jiffy Lube’s sign affronted community standards, he was not referring to the standards of Black Rock City. He was alluding to the prevailing community standards in Pershing County. These standards are not a mystery. They are described in laws that regulate pornography in the State of Nevada. Such regulations are not unlike the rules that prevail in any town in the United States. Pornographic theaters and video shops are not allowed to depict explicit sex acts on the street, and the ethos that supports these laws, the “prevailing community standard”, is not unlike our own disinclination to allow participants to engage in public sex acts in Black Rock City. To be candid, I’m not at all sure that I would be entirely comfortable if a business moved into my residential neighborhood and erected a giant pornographic sign. If this were done in San Francisco, a city notable for its tolerance and its celebration of sexual diversity, I estimate that it would take less than two hours before I witnessed flashing lights outside of my window. To the Sheriff’s deputies, I suppose this application of the community standards of their county simply seemed like common sense.
Much of the confusion about this incident stems from the fact that many of our participants have come to believe that Black Rock City possesses the rights of an incorporated civic entity and that we, as organizers, are somehow empowered to make laws that contravene the power of the State. It can easily seem that we form a kind of republic, a place of special dispensation that is absolved from following the law. After all, our citizens are free to walk naked in the streets, and they are free to express themselves in many uninhibited ways that might draw censure elsewhere. This ambiguity is even further compounded by the fact that so much latitude is already allowed us. In Ms Pike’s article an officer with Pershing County law enforcement said, when asked about public nudity, “You have to ask, ‘Does it offend the consciousness of the community? Up there [at Burning Man] it doesn’t. People walk all over the place naked, and they don’t get arrested”. Clearly then, the sign at Jiffy Lube was firmly poised astride an invisible line that divides what our community is willing to tolerate from what the community of Pershing county is comfortable with. In other words, despite some fantasies of anarchist autonomy, Black Rock City is located within a county in a State within America on Planet Earth.
However, as they say in the legal profession, hard cases tend to make bad law. Before we speak of the unalienable constitutional right to mount large pornographic signs on thoroughfares or address desperate causes, I would like to place this further in its human context. It’s clear to me, after considering the facts laid out in Ms Pike’s article, that the Jiffy Lube affair does not represent any sort of sinister homophobic agenda, nor is it an instance of heavy-handed and heedless oppression. The same officer who spoke to Ms Pike about respecting Burning Man standards regarding nudity went on to say that members of another camp who were exhibiting heterosexual pornography on a large-scale screen along a public roadway were also quietly asked to tone it down. They switched, I am told, to “soft-porn”. This little regarded incident did not produce visceral outrage. The participants involved apparently regarded it as an acceptable compromise. It does illustrate, however, that standards regarding pornography in Pershing County were applied even-handedly. In the case of Jiffy Lube, I think that the authorities perceived a paradigm. Specifically, they were undoubtedly struck by the public prominence of this sign in the immediate vicinity of children. This may not be the standard we adopted, but there is no evidence that it represents a particularly homophobic orientation. From their point of view, porn parlors would not ordinarily be licensed to operate alongside day care centers. Indeed, had this particular sign been somewhat smaller, or had it appeared at any one of a hundred different locations, the issue might have been perceived very differently.
I would also like to say something about the moderation and restraint of law enforcement. Earlier, I suggested that a 12-foot pornographic sign would be removed in very short order if it were placed on residential street in San Francisco. In Black Rock City, however, county authorities waited till Thursday, initially took “no” for an answer, and then asked the Black Rock Rangers to mediate the dispute. The Sheriff of the county and the district director of the BLM sat down with camp members, discussed the issue with them at length and then proposed a compromise that allowed a dissident faction, a minority within that camp, to publicly protest their decision! Community standards aside, this is hardly evidence of heedless oppression. The police may have applied a standard represented by the laws of their community. However, by coming to us with a willingness to engage in discussions, they’ve also showed a measure of respect for our community. This is the result of our constant efforts to engage county, state and federal agencies in meaningful dialogue. Gradually, they have come to understand that Black Rock City is not a rock ‘n’ roll concert. Through patient effort over many years, we have convinced them that we represent a real community. In many ways, we are often respected and deferred to as if we were a civil authority. This explains why we are able to maintain our peculiar town year after year as the freest and most expressive community on earth. Neither arrests nor lawsuits could have achieved this.
This leads me to my own involvement in this incident. As recounted by my Ms Pike, the Jiffy Lube sign eventually ended up in front of my camp. This second tour of the city represented, I believe, a reneging on an actual pledge that they had made to law enforcement. Even then, however, the authorities stayed back and waited to see how we would resolve things. In fact, up until this colossally scaled sign arrived on the playa outside of my camp, I had no idea what was going on. Within the vacuum formed by the absence of any other sensational news issuing from our event, the Jiffy Lube affair may have seemed to loom like a towering dust devil. At the time, however, as we rushed to prepare for the burning of the Man on Saturday night, it caught me entirely unaware. I was briefly informed of preceding events, all of which were news to me, and I was told that an angry group was now assembled in front of a truck. They were threatening, it appeared, to march toward a confrontation with the police. As I approached the vehicle, I could hear an individual inveighing to the crowd (at this point it was hardly 300 or 350 people, more like 60) with a bullhorn.
It was, indeed, an angry crowd. Or, at least, the speaker with the bullhorn was very angry, and what he said aroused me as well. He denounced my fellow organizers and me, suggesting that we despised homosexuals and were involved in a plot with the authorities. He also accused us of callously exploiting participants, of caring only about money, and added several other slurs. I was then unaware that he was a first year participant who has since told the press that Burning Man is not about art or, apparently, community, but that it is “really about sex, drugs and rock ‘n’ roll – a lot of sex”. In fact, I’m glad I didn’t know his views. He then demanded that I mount the truck bed and answer these accusations, but I refused the invitation. I didn’t really want to be arraigned for my sins, the sins of Burning Man, or the sins of a homophobic world on a truck bed. I asked, instead, that he descend and speak to me face to face on the ground. We talked for a brief while as the crowd gathered round. Then I asked him for the bullhorn, ascended the impromptu pulpit and addressed the group.
I admit it was difficult to know what to say. Surely I wasn’t being asked to inform the police that their laws were no good in Black Rock City. Their authority to enforce the laws of their own county is perfectly legitimate, as is their authority to enforce several other laws regarding the use of illegal drugs and unsanctioned fireworks. Nor was I inclined to answer charges that we were in collusion with a pack of jack-booted thugs. Our Rangers played a mediating role from the beginning, and the police, regardless of their interpretation of local community standards, were very far from behaving belligerently. As I looked around me not a single officer was visible, and I pointed this out to the crowd. I told them that the authorities had withdrawn in order that we might resolve this issue among ourselves. The real question was whether an angry confrontation with police resulting in arrests was a good idea, and on this I had a very definite opinion. My experience has taught me that this is usually a very bad idea. I would hope that experience has taught everyone this lesson.
In the aftermath of this affair, the offending sign was eventually returned to Jiffy Lube and stored within the confines of that camp. However, many questions have remained. Have human rights been trampled on? Does Burning Man condone homophobia? Is this a foot in the door, and will official censors now police the content of art at our event? The answer to all of these questions is a resounding “no”. A legitimate ordinance was enforced without arrest in a specific circumstance. The county had every “right” to do this, and I believe that any court in the State of Nevada would probably sustain their action. This is precisely why you aren’t likely to see a 12-foot sign portraying any sort of sex act in your own neighborhood any time soon. As to the “trampling” of individual rights, no one at any time witnessed much trampling of anybody going on. Do we condone homophobia? Of course we don’t — no more than Pershing County apparently does. The activities within Jiffy Lube camp were not interfered with, and I’ve heard no reports of harassment. No one at any time has come to me with credible evidence of any word or action on the part of the authorities that could be construed as prejudiced behavior. Lastly, will county authorities create an art police to restrain self-expression? This is extremely unlikely. The county authorities have enough to do without jurying art at our event. I am prepared to defend the art of Black Rock City – except, perhaps, for instances of hate speech that might masquerade as art — against censorship. Our playa will remain an open gallery, and I don’t think the county has any interest in vetting art for homoerotic, heteroerotic, or any other kind of content.
As I stated earlier, difficult cases produce bad law. I confess that I have always disliked legalistic and ideological interpretations of events. Whenever ideology begins to drive events opinions polarize. Common sense and charitable understanding are the first casualties. We are a community and the soul of any community is communication. Likewise, the county we inhabit also represents a real community. Dismissing its sincere concerns or disparaging its representatives accomplishes nothing. When people are willing to listen, and particularly when they are able to sympathize with one another’s motives, much can be accomplished. The real problem, ironically, is not that the offending sign symbolized too much, but rather that it represented far too little. Neither the participants of Jiffy Lube camp, nor the county and federal authorities have a bad motive. Any dialogue about what these parties really want will be a good thing. Do gay people desire parity, fairness and the right of self-expression? Of course they do. Do county authorities have sincere concerns about the welfare of children? I think we must accept this as authentic. Does Burning Man want everyone to discover what they truly and deeply have in common? We have never wanted anything else.