What’s the difference between “offensive” and “grossly offensive”? Is it, as is said of the erotica versus pornography, the difference between using a feather and using a whole chicken?
Last week in Belfast, it was left to District Judge Liam McNally to decide whether a solitary quill or an entire bird had been deployed by an Evangelical preacher who, in May 2014, told his congregation that Islam was a “Satanic” doctrine and that he did not trust Muslims.
Pastor James McConnell’s sermon caused considerable controversy, which escalated when he appeared on the BBC’s Stephen Nolan show and refused to back down. Then-first-minister Peter Robinson, of the Democratic Unionist Party, attempted to pour oil on troubled water by saying he wouldn’t trust a Muslim on the big issues, but he’d happily send one down to the shops for him.
Anyway, more than a year later, in June 2015, prosecutors charged McConnell not, as one might imagine, with incitement to religious hatred, but with causing the sending “by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character”.
That is Section 127 of the Communications Act, a law which, as has been pointed out here and elsewhere many times before, was designed to prosecute heavy breathers harassing telephone operators in the 1930s. It was not ever supposed to be used against fire and brimstone preachers in Northern Irish megachurches. At the time, this column questioned the Public Prosecution Service’s use of this instrument. The PPS must have thought this was the best means of securing a conviction, but it is odd that an online stream of a sermon should be singled out as a grossly offensive message, and a rather dangerous precedent for broadcasters, news publications, bloggers and, as we have seen many times before, social media users. If a recording of a sermon available on the web is liable to prosecution under the Communications Act, why not, say, a newspaper column, or even a documentary in which “offensive” views are aired?
As it turned out, McConnell was found not guilty by Judge McNally last week, on the basis that the judge was unwilling to attach the “grossly” description that turns being offensive into an offence. In a judgment, which hinted at irritation with all parties, McNally made it clear that yes, the pastor’s statements were offensive, and that offence could have been avoided:
“He is a man with strong, passionate and sincerely held beliefs,” the judge found. “In my view, Pastor McConnell’s mindset was that he was preaching to the converted in the form of his own congregation and like-minded people who were listening to his service rather than preaching to the worldwide internet. His passion and enthusiasm for his subject caused him to, so to speak, “lose the run of himself”. Having said that, I am satisfied that … he must have realised that there was a risk of offence being caused and, unfortunately, ignored it.”
He also hinted that McConnell was ignorant about Islam — that he did not demonstrate any theological justifications for his views on the religion.
But McNally’s conclusion raised a question over why the case had come up: “The courts need to be very careful not to criminalise speech which, however contemptible, is no more than offensive. It is not the task of the criminal law to censor offensive utterances. Accordingly I find Pastor McConnell not guilty of both charges.”
This is a fine and cheering judgment in an age when we could reasonably have expected it to have gone the other way. McNally has grasped, one can see, that the state has no place interfering in free expression of thought and belief, barring perhaps the prevention of imminent violence.
In the same week as this little triumph for free speech, we marked the first anniversary of the Paris attacks on Charlie Hebdo and a kosher supermarket.
One braced for repeats of the equivocation that followed the murders last year, and sure enough, Professor Nigel Biggar of Oxford University obliged, writing of the slain Charlie staff in the Times that: “Even if we have a legal right to spit on other people’s sacred cows for the sheer, malicious fun of it, we have no moral permission.”
What’s fascinating about Biggar’s vicarish utterances (he does at least concede “Charlie’s journalists certainly didn’t deserve to die”, which is good of him) is the idea that someone is, or should be, in a position to grant permission to others regarding what they can or cannot say, write, or draw. The men who carried out the slaughter at Charlie Hebdo certainly believed they should decide who is allowed say what: one suspects in their own way, the likes of Nigel Biggar’s do too.
It’s this authoritarian impulse, whether carried out with weapons, secular laws or smug religious entitlement, that should be confronted. A recent Irish Times editorial addressing the issue of offence and the McConnell case, expressed this sentiment well, stating that ultimately it is the reader who decides “how civilised debate will be conducted. Not the courts, regulators, overzealous prosecutors, politically-correct civil society groups, or even over-prescriptive press councils”.
It is to his credit Judge McNally understood this as he let the unpleasant Pastor McConnell walk free. We should carry his lesson with us into 2016.
August 2015: opening of the Cuban Film Posters exhibition Soy Cuba as part of World Cinema Amsterdam. Credit: Shutterstock / Cloud Mine Amsterdam
“[T]he fault of many of our intellectuals and artists is to be found in their ‘original sin’: they are not authentically revolutionary.”
— Che Guevara, Man and Socialism in Cuba, 1965
Last year was a good one for Cuban artists. With renewed diplomatic relations with the US, a boom in Latin American art and Cuba’s exceptional artistic talent — fostered through institutions such as the Instituto Superior de Arte in Havana — works by prominent Cuban artists fetched top dollar at international auctions, and the Cuban film industry was firmly in the international spotlight.
While the end of the embargo brought with it hope for political liberalisation on the island, as with previous periods of promise in Cuban history cases of repression and censorship of dissident artists were rife in 2015.
So let’s begin again: Last year was a good one for Cuban artists who adhere to the country’s long-established revolutionary narrative and don’t embarrass the regime.
The fear of censorship for art that is critical of the government has been fostered through decades of laws and repression that limit freedom of expression. This can mean stigmatisation, the loss of employment and even imprisonment. Charges such as “social dangerousness” and insulting national symbols are so vague they make convictions very easy.
“Artists are among the most privileged people in Cuban society — they make money in hard currency, travel, have frequent interaction with foreigners and they don’t have boring jobs,” explains Coco Fusco, a Cuban-American artist, 2016 Index Freedom of Expression Awards nominee and author of Dangerous Moves: Performance and Politics in Cuba. “Artists function as a window display in Cuba; proof of the success of the system.”
But if an artist engages in political confrontations, they can draw unwanted attention, says Fusco.
One artist accused of doing just that is critically-acclaimed Cuban director and fellow nominee for this year’s Index Awards Juan Carlos Cremata. In 2015, he staged a production of Eugene Ionesco’s Exit the King, about an ageing ruler who refuses to give up power. The play lasted two performances before being shut down by the National Council of Theatre Arts and the Centre for Theatre in Havana.
“Exit the King was banned because according to the minister of culture and the secret police we were mocking Fidel Castro,” Cremata told Index on Censorship. “This wasn’t really true; what they fear is real revolutionary speech in theatre.”
When he spoke out against the move, Cuban authorities terminated his theatre contract, effectively dissolving his company, El Ingenio.
Cremata, whose career spans three decades, confesses the shutting down of Exit the King took him by surprise. “We are living in the 21st century, and according to the official propaganda, Cuba is changing and people can talk about anything,” he says. “This, as it turns out, is a big lie by people who are still dreaming of the revolution.”
“With their censorship, they show how stupid, retrograde and archaic their politics are,” he says.
As so much funding for artists comes from the state, non-conformist artists often find themselves in difficult financial situations. “I’ve had to reinvent my life,” Cremata says. “I’m trying to receive some help from friends who offer to work with me for free, but this will not be eternal, as they have families.”
Cremata himself has an adopted daughter and has her future to think about. “I truly believe life will change and better times will come with or without their approval, but it is very, very hard.”
Art has always been at the centre of Cuban culture, but under Fidel Castro it became a tool for spreading socialist ideas and censorship a tool for tackling dissent. Evidently, Cuba isn’t entirely post-Fidel, explains Fusco. “Fidel is still alive, his brother is in charge and his dynasty is firmly ensconced in the power, with sons, nieces and nephews in key positions,” she says. “Although I don’t think anyone over the age of 10 in Cuba believes the rhetoric anymore.”
Very few may believe the rhetoric, but going against it can still land you in prison, as was the case with Index Awards nominee Danilo Maldonado, the graffiti artist also known as El Sexto. Maldonado organised a performance called Animal Farm for Christmas 2014, where he intended to release two pigs with the names of Raúl and Fidel Castro painted on them. He was arrested on his way to carry out the performance and spent 10 months in prison without trial.
International human rights organisations condemned his imprisonment — during which he was on a month-long hunger strike — as an attack on freedom of expression.
The prospect for improving political freedoms doesn’t look good, and anyone who expected any different due to Cuba’s normalisation of relations with the US is naive, says Fusco.
“Washington is not promoting policy changes to improve human rights,” she says. “Washington is promoting policy changes to 1. develop better ways to exert political influence in Cuba; 2. to revise immigration policies and control the steep increase in Cuban illegal migration to the US; 3. to give US businesses and investment opportunity that they need (particularly agribusiness); 4. to avoid a tumultuous transition at the end of Raul Castro’s term in power that would produce more regional instability (i.e. the US does not want another Iraq, Libya or Syria).”
Even within Cuba there is an absence of discussion about civil liberties, strong voices of criticism of state controls and collective artist-based efforts to promote liberalisation.
“Artists are generally afraid to mingle with dissidents,” says Fusco. “There are a few bloggers who post stories about confrontations with police and political prisoners, a few older human rights activists who collect information about detentions and prison conditions, a handful of opposition groups who advocate for political reforms, but they have virtually no influence on the government.”
In the past, Cuban authorities used the US embargo as an excuse to justify restrictions on freedom of expression. Now that the excuses are running out, it is time for the Cuban government allow its dissidents the same freedoms as its conformists.
Ryan McChrystal is the assistant editor, online at Index on Censorship
On the anniversary of the brutal attack on the offices of Charlie Hebdo we, the undersigned, reaffirm our commitment to the defence of the right to freedom of expression, even when that right is being used to express views that some may consider offensive.
The Charlie Hebdo attack, which left 11 dead and 12 wounded, was a horrific reminder of the violence to which journalists, artists and other critical voices are subjected in a global atmosphere marked by increasing intolerance of dissent. The killings inaugurated a year that has proved especially challenging for proponents of freedom of opinion.
Non-state actors perpetrated violence against their critics largely with impunity, including the brutal murders of four secular bloggers in Bangladesh by Islamist extremists, and the killing of an academic, M M Kalburgi, who wrote critically against Hindu fundamentalism in India.
Despite the turnout of world leaders on the streets of Paris in an unprecedented display of solidarity with free expression following the Charlie Hebdo murders, artists and writers faced intense repression from governments throughout the year. In Malaysia, cartoonist Zunar is facing a possible 43-year prison sentence for alleged ‘sedition’; in Iran, cartoonist Atena Fardaghani is serving a 12-year sentence for a political cartoon; and in Saudi Arabia, Palestinian poet Ashraf Fayadh was sentenced to death for the views he expressed in his poetry.
Perhaps the most far-reaching threats to freedom of expression in 2015 came from governments ostensibly motivated by security concerns. Following the attack on Charlie Hebdo, 11 interior ministers from European Union countries including France, Britain and Germany issued a statement in which they called on Internet service providers to identify and remove online content ‘that aims to incite hatred and terror.’ In July, the French Senate passed a controversial law giving sweeping new powers to the intelligence agencies to spy on citizens, which the UN Human Rights Committee categorised as “excessively broad”.
This kind of governmental response is chilling because a particularly insidious threat to our right to free expression is self-censorship. In order to fully exercise the right to freedom of expression, individuals must be able to communicate without fear of intrusion by the State. Under international law, the right to freedom of expression also protects speech that some may find shocking, offensive or disturbing. Importantly, the right to freedom of expression means that those who feel offended also have the right to challenge others through free debate and open discussion, or through peaceful protest.
On the anniversary of the Charlie Hebdo attacks, we, the undersigned, call on all Governments to:
Uphold their international obligations to protect the rights of freedom of expression and information for all, and especially for journalists, writers, artists and human rights defenders to publish, write and speak freely;
Promote a safe and enabling environment for those who exercise their right to freedom of expression, and ensure that journalists, artists and human rights defenders may perform their work without interference;
Combat impunity for threats and violations aimed at journalists and others exercising their right to freedom of expression, and ensure impartial, timely and thorough investigations that bring the executors and masterminds behind such crimes to justice. Also ensure victims and their families have expedient access to appropriate remedies;
Repeal legislation which restricts the right to legitimate freedom of expression, especially vague and overbroad national security, sedition, obscenity, blasphemy and criminal defamation laws, and other legislation used to imprison, harass and silence critical voices, including on social media and online;
Ensure that respect for human rights is at the heart of communication surveillance policy. Laws and legal standards governing communication surveillance must therefore be updated, strengthened and brought under legislative and judicial control. Any interference can only be justified if it is clearly defined by law, pursues a legitimate aim and is strictly necessary to the aim pursued.
PEN International
ActiveWatch – Media Monitoring Agency
Adil Soz – International Foundation for Protection of Freedom of Speech
Africa Freedom of Information Centre
ARTICLE 19
Bahrain Center for Human Rights
Belarusian Association of Journalists
Brazilian Association for Investigative Journalism
Bytes for All
Cambodian Center for Human Rights
Canadian Journalists for Free Expression
Center for Independent Journalism – Romania
Center for Media Freedom and Responsibility
Comité por la Libre Expresión – C-Libre
Committee to Protect Journalists
Electronic Frontier Foundation
Foundation for Press Freedom – FLIP
Freedom Forum
Fundamedios – Andean Foundation for Media Observation and Study
Globe International Center
Independent Journalism Center – Moldova
Index on Censorship
Initiative for Freedom of Expression – Turkey
Institute for the Studies on Free Flow of Information
Instituto de Prensa y Libertad de Expresión – IPLEX
Instituto Prensa y Sociedad de Venezuela
International Federation of Journalists
International Federation of Library Associations and Institutions
International Press Institute
International Publishers Association
Journaliste en danger
Maharat Foundation
MARCH
Media, Entertainment and Arts Alliance
Media Foundation for West Africa
National Union of Somali Journalists
Observatorio Latinoamericano para la Libertad de Expresión – OLA
Pacific Islands News Association
Palestinian Center for Development and Media Freedoms – MADA
PEN American Center
PEN Canada
Reporters Without Borders
South East European Network for Professionalization of Media
Vigilance pour la Démocratie et l’État Civique
World Association of Community Radio Broadcasters – AMARC
PEN Mali
PEN Kenya
PEN Nigeria
PEN South Africa
PEN Eritrea in Exile
PEN Zambia
PEN Afrikaans
PEN Ethiopia
PEN Lebanon
Palestinian PEN
Turkish PEN
PEN Quebec
PEN Colombia
PEN Peru
PEN Bolivia
PEN San Miguel
PEN USA
English PEN
Icelandic PEN
PEN Norway
Portuguese PEN
PEN Bosnia
PEN Croatia
Danish PEN
PEN Netherlands
German PEN
Finnish PEN
Wales PEN Cymru
Slovenian PEN
PEN Suisse Romand
Flanders PEN
PEN Trieste
Russian PEN
PEN Japan
Music has long been used as a form of resistance, from civil rights movements to the fall of the Berlin Wall. The latest issue of Index on Censorship magazine, focusing on taboos and the breaking down of social barriers, features an exclusive new short story by Ariel Dorfman about a military trumpeter who plays a defiant, rebellious song on his instrument.
In honour of the story, we have compiled a playlist of music that has been used as protest and resistance from all over the world. The influence of these songs show just how powerful music can be as a form of rebellion.
Many artists on the list have been forced into exile or censored. Index on Censorship has teamed up with the award-winning makers of the documentary They Will Have To Kill Us First to launch the Music in Exile Fund, which will help support musicians in similar situations.
Beethoven’s Ninth Symphony – Ode to Joy
Ode to Joy has been adopted by many protest movements around the world. Most notably the song was played on the streets of Chile in resistance to the Pinochet dictatorship. Demonstrators gathered outside prisons singing Ode to Joy, giving strength to the prisoners who suffered torture there at the hands of the regime.
Joan Baez – We Shall Overcome
We Shall Overcome is a key protest song of the civil rights movement. The song, which has been covered by various artists, was first used in 1945 by tobacco workers fighting for better pay in Charleston, South Carolina. The song, with its message of solidarity and hope, has been used in many protests around the world, not least in the 1950s and 1960s by activists in the American civil rights movement.
Vuyisile Mini – Ndodemnyama we Verwoerd
Ndodemnyama we Verwoerd (Watch Out, Verwoerd) is one of the most well-known songs in South Africa due to its association with the campaign against apartheid. Hendrik Verwoerd, who served as prime minister of South Africa until his assassination in 1966, became known as the “architect of apartheid” for his role in implementing the system of racial segregation. Unsurprisingly, he became the subject of many protest songs, including Ndodemnyama we Verwoerd by Vuyisile Mini. Mini became one of the most powerful organisers of the resistance, earning himself the moniker the “organiser of unorganised”. He was sentenced to death in 1964 on charges of sabotage and political crimes and is said to have sung the song while being led to the gallows.
November 2015 marked the 25th anniversary of the fall of the Berlin wall. Many songs have been associated with the demise of the wall, which divided Berlin for nearly three decades, particularly Wind of Change by German heavy metal band The Scorpions. The song, one of peace and hope, was released a few months after the wall was torn down and became one of the top-selling singles of 1991. The music video to Wind of Change shows footage of the wall being removed.
Songhoy Blues – Al Hassidi Terei
The four members of Songhoy Blues met as refugees after being forced into exile by Muslim extremists who banned all music in Mali in 2012. In defiance of the extremists, they formed the desert blues band, refusing to have music taken away from them. They have since gone on to work with Damon Albarn of Blur and Nick Zimmer of the Yeah Yeah Yeahs, been on an international tour and were nominees for the arts category of the Index on Censorship Freedom of Expression Awards 2014.
Ramy Essam – Irhal
Irhal became known as the anthem of Egypt’s uprising against President Mubarak’s after singer Ramy Essam performed the song during the 2011 protests in Tahrir Square. Irhal, which urges the president to resign, became internationally known after Essam’s performance was posted on YouTube during the protests. After the revolution, Essam returned to Tahrir Square where he was arrested and tortured by the military council. He was offered safe city residence in Sweden following his arrest and has been living there since 2014.
Tropicália/Gilberto Gil – Miserere Nóbis
The Tropicália movement is a brief artistic movement that took place in Brazil in the 1960s. During the movement, which was co-founded by Gilberto Gil and Caetano Veloso, musicians expressed their resistance to the country’s military dictatorship through their music and their socially and politically charged lyrics. The movement only lasted around a year before being suppressed by the military regime. Gil and Veloso were arrested in 1969 and forced to live in exile in London for the political content of their work but returned to Brazil in 1972.
Billie Holiday – Strange Fruit
Strange Fruit, most famously performed by Billie Holiday, protests American racism and the lynching of African Americans. The song began as a poem written by teacher Abel Meeropol published in 1937; Who then set it to music and performed it as a protest song at various venues in New York in the late 1930s along with his wife and the singer Laura Duncan.
Chieftains and Sinead O’Connor – Foggy Dew
Foggy Dew is the name of several old Irish ballad. This version of the song chronicles the Easter Rising of 1916 in Dublin when Irishmen fought for the cause of Irish independence. During World War I, thousands of Irishmen served in the British forces. Many Irish nationalists felt they should have stayed in Ireland and fought for Irish independence, which is reflected in the song.
Killing in the Name – Rage Against The Machine
American rap-metal band Rage Against the Machine released Killing in the Name in 1992, six months after the Los Angeles riots, which were triggered after four white police officers were acquitted of beating black motorist Rodney King. The song is institutional racism and police brutality. Known for its excessive use of expletives, Killing in the Name originally received little air time.
Joe Strummer (The Clash) mural, London. Credit: Flickr / Matt Brown
The Clash – White Riot
When The Clash released White Riot, many people thought it was a song advocating some kind of race war. This couldn’t be further from the truth. With the lyrics, Joe Strummer was appealing to white youths to find a worthy cause to fight (or riot) for, just as many black youths had in the UK at the time. At its heart, it is a song about class and race.
Bob Marley – Get Up, Stand Up
Bob Marley is renowned for his songs about peace, love and resistance. With Get Up, Stand Up being one of his most well-known protest songs. Marley wrote the song with fellow Jamaican musician Peter Tosh as a challenge to oppression. The song is famed for the lyrics: “You can fool some people sometimes but you can’t fool all the people all the time.”
Pete Seeger – Joe Hill
Joe Hill was a miner, songwriter and union organiser for the Industrial Workers of the World (IWW). Hill was executed in America in 1915 following a controversial trial in which he was found guilty of the murders of John G Morrison and his son Arling. Hill refused to testify at his trial believing he would be worth more to the labour movement as a dead martyr than alive. After his death, Hill was the subject of songs by various artists, including Paul Robeson, Joan Baez and Pete Seeger.
Sam Cooke – A Change Is Gonna Come
A Change Is Gonna Come has been covered by various artist but was originally written by Sam Cooke. The song is another civil rights anthem concerning the struggles of African Americans during the 1960s. Cooke was said to have been inspired to write to song by various events in his life, predominantly being turned away from a “whites only” hotel. The singer was shot and killed just before the song was due to be released as a single in 1964.
Tinariwen – Lulla
Tinariwen are made up of musicians from the Tuareg community, whose music reflects the issues faced by the Tuareg people. The musicians received military training when they were living in exile in Libya in the 1980s, and many of the members of Tinariwen were rebel fighters in the 1990 revolt against the Malian government. In 1991, the collective, who’s name translates to “the people of the desert”, left the military to focus on music on a full-time basis.
Eagles of Death Metal – People Have the Power
On 8 December, Eagles of Death Metal joined U2 on stage in Paris, just three weeks after Muslim extremists launched an attack at their concert at the Bataclan Theatre, killing 89 people, plus 41 in two other attacks. Together the bands performed a cover of Patti Smith’s People Have the Power, showing bravery and resistance against the terrorists who left the city in fear.
You can read the Ariel Dorfman’s new short story, All I Ever Have, about music as a form of resistance in the latest Index on Censorship magazine. Each magazine sale helps Index on Censorship fight for free expression worldwide. Order your copy here, or take out a digital subscription via Exact Editions (just £18 for the year).
