16 Feb 16
By Daniel McClean, 16 February 2016
Daniel McClean is a lawyer and independent curator
There are few recent legal cases involving freedom of artistic expression in the UK.
In one sense, this is to be welcomed. The UK, like other western legal systems, provides wide latitude to its protection. Freedom of artistic expression is specifically incorporated as a defence into different laws. The Obscene Publications Act (1959), for example, expressly recognizes artistic merit as a defence to the publication of otherwise obscene material.
The absence of recent cases involving artistic freedom of expression in particular as a defence in criminal prosecutions to charges of obscenity, indecency, endangering public security and hate speech might suggest that we should not be too concerned about its protection (FN1) and that the courts can be called upon if required to distinguish, for example, between artistic works featuring photographs of naked children and child pornography or between plays examining religion and racist diatribe.
Yet might not the absence of case law also suggest more perversely that artistic freedom of expression is not relied upon by artists, writers, publishers, museums, galleries and theatres and by others when it should be?
The apparent absence of cases and disputes (including cases that settle prior to trial) is symptomatic of two tendencies of which we should be concerned.
The first tendency is a lack of certainty as to what scope and weight freedom of artistic expression has within the law today.
In particular, it is unclear what role artistic expression has under the general right to free expression, i.e. as protected under Article 10 of the European Convention on Human Rights (1950) and recognized in UK law through the Human Rights Act (1998)? In the UK there have seemingly been no reported cases to date where the right to freedom of artistic expression has been relied upon by claimants or defendants in the interpretation of criminal and civil statutes or in balancing against other human rights, for example, the rights to privacy or reputation.
This contrasts with the widespread (and justified) reliance on Article 10 in cases involving press freedom and communication in the public interest. It might similarly be worthwhile, for example, for there to be a challenge to the potential constraints imposed upon artistic freedom of expression by intellectual property law or the law of privacy. Artistic freedom of expression has been tested against these rights in other jurisdictions (FN2).
In the jurisprudence of the European Court of Human Rights (ECHR), there have also been few cases where the court has had to consider artistic freedom of expression.
The case of Vereinigung Bildender Kunstler v Austria (2007)(FN3) is one of the few examples. The claimant (an artists’ association based in Austria) had exhibited in Vienna’s famous Seccession gallery, a satirical painting by the artist, Otto Muhl of the *right wing, Austrian politician, Mr Meischberger* depicted in various demeaning sexual acts with the *fascist, Austrian politician*, Jorg Haider.
The Vienna court had held that Muhl’s painting had debased Meischberger’s public standing. It awarded him damages and prohibited future exhibition of the painting. The ECHR narrowly (by 4 votes to 3) found the Austrian court’s injunction to be disproportionate to the otherwise legitimate aim of protecting ‘public morals’ and awarded the artists’ association damages. In particular, it found that Muhl’s painting should carry greater weight in the balancing exercise because it was akin to a form of political satire which commented on Mr Meischberger’s public image.
As a precedent, the ECHR’s judgment vindicates artistic freedom of expression. Yet it also has narrow application. The upshot is that artistic expression has to be closely aligned to politically orientated speech if it is to trump other rights. In particular, it leaves little clue as to what weight artistic freedom of expression might have on its own terms, placing it in a limbo somewhere between political speech and less elevated commercial speech. This is to sell freedom of artistic expression short.
John Tusa (FN4) eloquently writes that ‘the arts matter,” …. “because they are universal; because they are non-material; because they deal with daily experience in a transforming way; because they question the way we look at the world; because they offer different explanations of that world … A nation without arts would be a nation that had stopped talking to itself, stopped dreaming, and had lost interest in the past and lacked curiosity about the future.”
Tusa’s point is clear: the arts are fundamental to human autonomy and social and cultural development: a society which constrains the arts is impoverished. The arts can uniquely ask probing and troubling questions about our place in the world as the ancient Greeks were only too aware in the space they carved out for tragic theatre. In this sense, some if not many forms of artistic speech might be regarded as being of equivalent importance in their own right to forms of politically orientated speech.
Of course, not all forms of so-called artistic expression do carry weight. There are many examples of trite and meretricious expression which bears the name of art, but there is no reason why the courts cannot discriminate such instances, even if this may not always be straightforward. After all, judgments about political speech also involve judgments of value. In the case of Leroy v France (2008)(FN4), the ECHR upheld the conviction by the French authorities of the claimant, a cartoonist, of the crime of apologizing for terrorism after he depicted a cartoon in the aftermath of 9/11, showing the twin towers collapsing in the terrorist attack with the caption, ‘We have all dreamed of this. Hamas has done it’. There is no reason why simple hate/offensive speech such as this should be given greater weight as artistic expression because it is framed within the context of a cartoon – even if we might disagree with the punishment afforded by the French authorities.
The second tendency is a pattern towards self-censorship that can be discerned particularly on the part of publishers and institutions to avoid communicating subject matter that carries the risk of being deemed offensive and ‘politically incorrect’ whether this subject matter is unlawful or not.
Self-censorship in this form can be exercised at two stages. The first stage is avoiding communicating such subject matter at all. It is difficult to measure such acts of self- censorship, but there is a good reason to believe these acts are becoming increasingly common as Index on Censorship uncovered in Taking the Offensive.
The second stage (which I consider here) is unnecessarily removing controversial and provocative artistic subject matter from public view (for example, abandoning a play or taking an artwork down from exhibit in a public gallery) when challenged to do so, including by the police authorities.
The Tate’s removal of Richard Prince’s iconic ‘Spiritual America’ (1983) from the exhibition ‘Pop Life’ when challenged by the UK’s Obscene Publications Unit in 2007 is a powerful example of this second type of self-censorship.
Prince’s work is an ironic appropriation (as reflected in the work’s title) of a photographic image featuring the pre-pubescent actress Brooke Shields then aged twelve which had remarkably been published earlier in Playboy magazine. Prince’s work comments on the type of society and culture in which this type of image might be made as well as on Brooke Shield’s sexualized role as child actress. Prince’s work as well as being easily available on the Internet had been widely exhibited across the world, including in prestigious venues such as the Guggenheim, New York.
Following a complaint by The Daily Mail, the Tate’s trustees had been threatened with criminal prosecution under the UK’s Protection of Children Act (1978) for exhibiting an indecent image of a child – if Prince’s work was not removed from view. They were understandably afraid –a fear compounded by conservative and misguided legal advice they had received – and complied. Yet, if the Tate’s trustees had been prosecuted under the Act, which if submitted is unlikely (FN5), it would have been able to have rely upon the ‘legitimate reason’ defence – a defence made credible by the critical and institutional reception of Prince’s work within the art world.
At the moment we stand at a crossroads in the arts where creators and institutions are uncertain of their legal rights and oppressed by the desire to avoid giving offence and breaching taboos. What is to be done?
I wish to give the example of the Photographer’s Gallery (London) decision to mount an exhibition of the photographs of the internationally renowned artist, Sally Mann, in 2010 as an illustration of the positive steps that institutions can take to confront the specter of censorship, with the help of appropriately inclined lawyers.
In 2010, the Photographer’s Gallery decided to mount an exhibition of Sally Mann’s beautiful black and white photographs ‘The Family and the Land’. Sally Mann’s exhibition included a selection of photographs taken of her children naked while playing in the landscape and in a pond in the garden of the family home. Mann is a serious international artist (like Prince) whose work has been widely exhibited and critically acclaimed. Unlike Prince’s appropriated image of the naked Brooke Shields, Mann’s photographs cannot be accurately described as being prurient.
Given the strength of the social taboo against child nudity and the Tate incident in 2007, both Mann and the Photographer’s Gallery were concerned about the potential legal implications if the exhibition were to go ahead.
The advice that my law firm *(Mark Stephens provided in conjunction with Geoffrey Robertson QC) to the Photographer’s Gallery was robust**confused on what should be in parenthesis and what shouldn’t* (though not entirely risk free). It said, in essence, that even in the unlikely event a prosecution was to be brought against the artist and gallery under the Protection of Children Act 1978, for exhibiting ‘indecent’ images of children, there would be strong grounds for resisting this prosecution under the ‘legitimate reason’ defence, including Mann’s standing as an artist and the critical reception of her work, including photographs of her children.
In the event, the exhibition was mounted and not a whiff of complaint was heard from the police authorities or even the national press.
Exhibitions like Sally Mann’s at the Photographer’s Gallery are important because they create cultural precedents. They show what can be done when creators and institutions act with courage, but also receive robust legal advice. Importantly, they enable others to build upon their actions as precedents in the future.
In contrast to Art, the Law is often represented as being black and white. Yet as lawyers know all too well, the Law is also replete with grey areas of interpretation. Like Art, the Law is not fixed, but is shaped through contestation and discussion. If the scope of artistic freedom of expression is to be protected and enlarged today, it urgently requires that its contours are debated and challenged.
16 Feb 16
By Ceciel Brouwer, 16 February 2016
Ceciel Brouwer is a young academic doing a PhD at the School of Museum Studies in Leicester
In the United States, Australia and Britain a handful of art museums and galleries have come under scrutiny for displaying photographs of children.
Work by photographers such as Nan Goldin, Bill Henson and Sally Mann depicting children expressing a bodily awareness have provoked a reoccurring debate cast in two competing concerns. Voices generally sympathetic to the arts community defend the fundamental right of freedom of artistic expression and emphasise that children are able to give consent. Those calling for institutions to censor art accuse artists of perpetuating the sexualisation of children and ‘playing into the hands’ of paedophiles.
A more critical dialogue on the ethics of exhibiting photographs of young people’s bodies has been hard to find in these debates. The issues are bound up in the display of their image are addressed only during crises of controversy and too often presented as mutually exclusive, while voices of now-adult models remain profoundly absent.
Among the handful of models that have voiced their opinions in media, Sally Mann’s daughter spoke of her experiences as “teaching her the power of art” and inspiring her own career as an artist. Despite the media’s efforts, the now adult models of Bill Henson reflect on their collaboration with the artist as “empowering“. It seems that within circumstances that prioritise the needs and interests of the child, young people can experience an active engagement in art that is inspiring.
Yet not every parent or artist prioritises the best interests of the child when encouraging them to model, making this a particularly difficult ethical territory for museums to negotiate. An inherent power imbalance between parents and/or artists and young people allows some to pursue self-goals over the well-being of the child.
Adolescence is a time in which young people develop their identity, sexuality and thinking in adult-like ways, *while still remaining vulnerable and sensitive to expectations of adults* but also during which they have particular vulnerabilities and remain sensitive to expectations and coercion of adults. A young person might not see the implications of posing in certain ways as problematic until growing into adulthood. *I’d suggest making a new graph here*Consent is fluid and changeable because a person’s feelings may change according to the embodied experiences of adolescence. The meanings a photograph might evoke in other viewers might not become evident until later in life. In addition, photographs are mutable and can be read in very different ways that are temporally and culturally contingent.
In 2010, Vanity Fair published an article that exposed the emotional damage caused by Pop Art pioneer Larry Rivers on his two daughters by filming them naked during their early teens. Rivers made tapes of Emma and her older sister Gwynne on different occasions during the late 70s, “sometimes just with their breasts exposed, sometimes naked, as their father asked them questions about their bodies and budding sexuality“. Although film is inherently different from photography, it shares similarities in this context in that it is expected to show a supposed reality, the true image of a person. One of his daughters later said the film, Growing, contributed to the eating disorder and mental health problems she experienced during her adolescence and adulthood. Despite requests to have the tape destroyed, the archive’s keepers of The Larry Rivers Foundation have decided to keep the film behind closed doors in his daughter’s lifetime, but insist the collection should be kept for the sake of art.
Emma’s account embodies the idea that there is something predatory about the act of taking a photograph, as Susan Sontag asserted in On Photography. Photographs can blur the boundaries between reality and fiction and assert control over their subject, by turning a person into an object that can be possessed. River’s daughter is one of few who has attempted to gain back control over her image and ultimately failed to do so. Although the embargo on the video is partial, it does not grant her control.
Consent is negotiated and defined at the site of construction of the artwork by the relationships between the artist, parents and the autonomy of the child, but cultural institutions play a role by collecting, giving access to, exhibiting and publicising images. A museum grants the image a status inside the realm of art, but also brings work such as Larry River’s from the private into the public sphere. Outside the contemplated context of a gallery or archive, there is little space to negotiate the terms at which a photograph is used. Without any right of ownership of images of themselves, can a young person truly give lifelong informed consent for their image to be used?
No research exists that can enrich this discussion and more significantly bring to light how young people and adults reflect on their experiences. Moreover, a more open and interdisciplinary dialogue between lawyers, children rights advocates, medical ethicists, police, artists and museums is needed to equip institutions with the knowledge to encourage more informed and transparent decision-making and at the same time safeguard themselves against both censorship and self-censorship. A helpful way forward might take the shape of a more dynamic museum ethics discourse that appreciates the complexities of the context in which photographs are made and is rooted in an ethic of care towards the child on display.
Ceciel Brouwer is a young academic doing a PhD at the School of Museum Studies in Leicester. Her research explores how museums negotiate the ethical issues involved in collecting, interpreting and displaying photographs of children that express a bodily awareness. She became interested in ethics, consent and representations of young people when reflecting on the impact of her own experiences as a child participant in medical research and treatment. Her research is funded by the AHRC and Midlands3Cities.
29 Sep 15 | Art and the Law Commentary, Artistic Freedom Commentary and Reports, mobile, News and features, United Kingdom
The following was presented at No Boundaries: A Symposium on the Role of Arts and Culture. Video of Julia Farrington and the day’s other speakers is available on the No Boundaries site.
In 1972, Michael Scammell, the first editor of Index on Censorship magazine, wrote in the launch issue: “Freedom of expression is not self-perpetuating but needs to be maintained by the constant vigilance of those who care about it.”
We obviously haven’t been very vigilant here in the UK.
As we heard last week, when the artist Mimsy’s work Isis Threaten Sylvania was removed from the Passion for Freedom exhibition at the Mall Galleries, London, artistic freedom of expression was put up for sale at £36,000.
And disturbing though it is, the news is a gift to those who have been concerned about the direction policing of politically or socially challenging art was taking. Now the situation is crystal clear and marks an alarming new approach to the policing of controversial art.
In last week’s case, the police were concerned about the “potentially inflammatory content” of Mimsy’s work, so they gave the organisers a classic Hobson’s Choice: if they went ahead with their plans to display it, they would have to pay the police £36,000 to cover the cost of security for the six-day show.
The police took the view that a perfectly legal piece of art, which had already been displayed without incident earlier in the year, was inflammatory. And in the balance of things as they stand, this opinion outweighs the right of the artist to express him or herself, the organisation’s right to present provocative political art, the audience to view it and those that protest against it, the right to say how much they hate it.
If this goes unchallenged, it will set a very dangerous precedent for foreclosing any work that the police don’t approve of.
But going against police advice is tough. In Index’s information pack on Public Order – part of a series of booklets looking at laws that impact on what is sayable in the arts, we ask the question: “What happens if police advise you not to continue with presenting a piece of work because they have unspecified concerns about public safety – and yet tell you it is your choice and they can only advise you?”
The answer is that in principle, in law, you are free to proceed.
But it goes on to talk about duties the organisation has to their employees and members of the public present on their premises, which fall under licencing and other obligations.
But the point is no one has taken this to the courts, so it hasn’t been tried and tested.
As it stands — and in the heat of a crisis when these decisions are mostly reached — police advice is a Hobson’s Choice in pretty much every case.
This latest example of policing comes hot foot after revelations in the summer that the police were involved in, though allegedly not directly responsible for, the cancellation of Homegrown.
And it is only a year since Exhibit B at the Vaults in London and the Israeli hip-hop opera The City in Edinburgh were cancelled on the advice of the police following protests outside both venues.
Way back in 2004 the theatre world was shocked when protest led to the closure of Gurpreet Kaur Bhatti’s play – Behzti following police advice. Gurpreet says that what shocked her most at the time, was how the politicians didn’t take the closure as an opportunity to challenge the police decision, defend her right, and promote the importance of freedom of expression.
Six years later, the Coventry police wanted £10,000 per night to guarantee the safety of the premier production of Gurpreet’s subsequent play Behud at the Belgrade Theatre, which was her creative response to having her play cancelled in Birmingham; and which, because of the playwright’s history of attracting controversy, was treated by the police as a public order issue from day one of the production.
When faced with the police’s bill, Hamish Glen, artistic director of the Belgrade wrote to the police and said it was a fiscal impossibility for the theatre to pay up, and would amount to de facto censorship of Gurpreet’s voice for a second time. They came back asking for £5,000 per night instead which got the same response from Hamish – and finally they waived the fee and the show went ahead without incident.
In investigating this for a case study I wrote, I asked how the police had come up with the figure, and the answer was that it was assessed by the same criteria for special police services at a football match or a music festival. There is no guidance on policing a not-for-profit arts organisation dealing with fundamental rights – it is not on the police radar.
Writing a case study on the policing of the picketing of Exhibit B by Boycott the Human Zoo earlier this year also gave a series of interesting insights
Only one police officer from British Transport Police – The Vaults are under Waterloo Station and therefore under BTP jurisdiction – and two Community Police Officers attended the demonstration of 200 people – so it was obviously not considered a priority, despite the fact that social and print media made it clear that the production was very divisive and both the Boycott and the Barbican had talked to the police.
When, as the protest escalated and extra police arrived, the officer who took charge, talked to Sara Myers, the organiser of the Boycott, asking what was going on – they seemed not to know anything about it. He asked Sara what she wanted. She said she wanted the Barbican to close the show, and she told him that they intended to picket each of the five performances if they did not. The officer’s response was this is much ado about nothing – we haven’t got the resources to police this – we have to be out fighting serious crime.
So The Heckler’s Veto was seen to be working in London and in Edinburgh, just as it had worked in Birmingham ten years previously. When faced with a noisy demonstration, the police showed that they would take the path of least resistance and advise closure of whatever was provoking the protest.
And now a year later, with the removal of Isis Threaten Sylvania, we have seen a shift from the police advising closure following protest, to the police contributing indirectly or directly to the decision to remove work to avoid protest.
This is pre-emptive censorship by the police and represents a major shift in policing and is a clear infringement of civil liberties. It threatens the arts as a space for public debate about the politics of the world we live in.
Though of course because of the paradox of censorship, it actually has the opposite effect, it has amplified the work and many, many more people will be talking about that work because of the police’s move to close it. That doesn’t lessen the sting of the police’s new boldness and the trajectory they seem to be on with this latest act of censorship.
But let’s look at it from the police’s point of view. They are facing massive cuts themselves. George Osbourne’s latest figures indicate at the lowest end – a 25% cut on top of previous rounds. There are fewer police officers on the streets than at any time since the 1970s.
There is no guidance about policing of artistic freedom of expression, compared to pages of guidance on managing protest which stresses on every page the right to protest. When it comes to artistic cases it is left to professional judgement. I have spoken to several senior police officers about this and they will admit that mistakes have been made, but there have never been any consequences for these mistakes, so they remain quite blithe about them. And the bottom line with the police is always public safety.
They also, I believe, feel they have jurisdiction over certain volatile and socially sensitive areas of society where they have duties to prevent crime and to maintain law and order and have community cohesion responsibilities. So when artists venture into this territory with work that may cause offence, their reaction is to simply remove the provocation.
We also now have elected police commissioners who have political agendas – where inevitably policing unpopular, minority voices is going to come low on their agenda – however brilliant they may be, or however important they might be to the fundamental tenets of a liberal democracy.
And this has never been challenged. There has never been any judicial review of the policing of artistic freedom of expression. Judicial Review is the recourse that any arts organisation has when faced with what they consider to be inadequate or unfair policing. Actions by the police are subject to review by the courts for a number of reasons, including for instance if the police failed to consider alternatives to closure, or Article 10 rights generally.
We can and should expect more of the police. Tamsin Allen – senior partner at Bindmans states in an article she wrote for the case study of Behud: “The police have an obligation to fulfil their core duties – those are now enhanced by their duties under the Human Rights Act not to act incompatibly with the European Convention on Human Rights. The convention imposes both a qualified obligation not to interfere with the exercise of the right to freedom of expression and protest and a positive obligation to take appropriate steps to protect those rights. This may change if the Human Rights Act is abolished.”
And we are talking here about legal expression. We do not see artists going to court in the UK – the last major case in this country was Lady Chatterly in the 60s; the Oz Trial, the publishers of the poem The Love That Dares to Speak its Name in the 70s; and the lesser known case of the Human Earrings in 1989, being amongst the very few other cases.
It is also worth pointing out what is obvious – that nearly all the artworks that have been foreclosed by the police over the past few years deal with race and or religion and, Exhibit B notwithstanding, the majority of contemporary cases of contested art are by artists from black and ethnic minorities. This only emphasises the fact that freedom of expression is a biased affair in the UK and I believe will remain so while our society and our culture are not equal.
Acknowledging that, I would add to what Michael Scammell said – the space for freedom of expression has to be more than just maintained – it has to be enlarged and extended.
And as an urgent part of that, we have to challenge this culture of policing, this policing of culture.
The climate is not set fair for promoting the importance of artistic freedom of expression – the political climate is set against human rights. Policing as we have seen with absolute clarity this week in the case of Mimsy’s work, is subject to the prevailing laissez faire of the market place.
In late 2013, I asked Keir Starmer, former director of public prosecutions at the Crown Prosecution Service, if he felt there was a need for police guidance in the area of art and offence and he said emphatically yes. He said he thought it was going to be an increasingly major policing issue over the coming years. He was right.
We have to open up discussion at the highest level with police and the prosecution service, if we are to safeguard the space for freedom of expression in the arts, especially where it relates to political art. The climate might not be conducive, but it has not been tried before, systematically – it is uncharted – let’s go there.
13 Sep 15 | Events, mobile
Does free expression have its limits? is one of this year’s Battle of Ideas satellite events, produced in collaboration with east London arts charity, Bow Arts.
For many, the removal of the Lord Chamberlain’s right to censor the London stage in 1968 was hailed as a key liberalising moment of the Sixties. Yet in contemporary Britain there exists an uneasy attitude to how we approach offensive art. A year ago, the Barbican was forced by activists to close down an exhibition that was deemed offensive to black minority communities. More recently, the audience booed an ‘offensive’ rape scene in a performance at the Royal Opera House, and, in response, the company modified the scene. In August, popular US rapper Tyler the Creator was refused a visa to enter the UK on the grounds his work ‘encourages violence and the intolerance of homosexuality’ despite making numerous visits in recent years with comparatively little outrage.
For many in the arts world, the limits of free expression can be difficult to understand. Very few instances of overt censorship exist, yet from the closure of controversial 2004 play Behzti onwards, there has been a growing trend of venues and publishers being willing to pre-emptively withdraw or edit work either on health and safety grounds or for fear of causing offence. Exhibit B protestors, like the booing audience at the ROH, argued that they were legitimately expressing their opposition to work they find insulting. Following the Charlie Hebdo murders in Paris this year, many proclaimed ‘Je Suis Charlie’ in solidarity with offensive speech; yet there was less outcry when controversial comedian Dieudonné M’bala M’bala was arrested for expressing sympathy for the murderers and found his work censored by the French state for routines accused of anti-Semitism and racism.
Is artistic freedom under threat from ‘mob rule’ of community activists and noisy Twitter campaigns by the over-sensitive minority? How should artists respond to claims that their work is offensive? Are ‘trigger warnings’ that alert people to something they might want to avoid a solution? Or do they add to a climate of disapprobation where some ideas are seen as ‘out of bounds’? Are the arts themselves a ‘safe space’ to discuss topics and themes we would not tolerate in our day-to-day lives, or does that defence undermine free expression for all? Isn’t it the role of the artist to go beyond the boundaries, to challenge our perceptions and, on occasion, to cause offence?
When: Monday 5th October, 7-8:30pm
Where: Nunnery Gallery, Bow Arts Trust, 181 Bow Rd, London E3 2SJ (map)
Tickets: £4.89 through Eventbrite
Speakers include:
- Dr Wendy Earle — Impact Development Officer, Birkbeck, University of London; convenor, Institute of Ideas Arts and Society Forum
- Rachael Jolley — Editor, Index on Censorship magazine
- Anshuman Mondal — Professor of English and Postcolonial Studies, Brunel University London
- Kunle Olulode — Director, Voice4Change England and creative director Rebop Productions
- Tom Slater — Deputy editor, Spiked
