In 1990, the Cincinnati Contemporary Arts Center and its director, Dennis Barrie, were charged with “pandering and using minors in pornography” and put on trial for obscenity. The museum had held a posthumous exhibition in honor of the controversial photographer Robert Mapplethorpe (1946–1989).
In selecting the jury, the judge dismissed one potential juror simply on the grounds that she had seen the exhibit (not only the controversial photographs). She was also the only one who claimed to be a regular museumgoer. Among the jurors selected was someone who “never went to museums.”1 The judge assumed that people who had seen the exhibit, or even people who often visit museums, would be somehow prejudiced and would therefore be disposed to judge unfairly. In an attempt to avoid prejudice altogether, the judge apparently sought to fill the jury with people who had no prior familiarity with museums (or obscenity law).
Such jury composition reflects our assumption that good judgment must always be detached, and that a fair jury should be composed of members untainted by any prior familiarity with the contending parties or the subject matter of the case. In selecting juries, we strive to eliminate bias and selects jurors who will approach the case with an open mind. We want our juries prejudice-free.
But is such a jury really prejudice-free? A jury of people who almost never go to museums might be prejudiced in its own way: Such a jury would seem to have little basis for determining what is appropriate in that context. How could people unfamiliar with the type of work normally displayed in museums accurately determine whether a certain photograph met “contemporary community standards of decency”—the standard they were asked to interpret? Jurors who lacked this background knowledge, or prejudice, would seem ill-equipped to judge the case fairly.
Today, prejudice is primarily a negative concept, and understandably so. It refers, more often than not, to attitudes based on animus and hatred, such as racism and misogyny. Why would any decent person want to acknowledge a place for prejudice? What possibly can be said on its behalf? Insofar as the word prejudice refers to thought or action beclouded by hatred, the answer is nothing.