Archive for the “Censorship” Category
 When I was growing up, I read a children’s book called The Arabian Nights, an innocent version of the Islamic classic One Thousand and One Nights. Perhaps surprisingly, a group of Egyptian lawyers has recently called for a ban of a newly-released version of the Nights, on the grounds that it is “obscene” and could lead people to “vice and sin”. At the same time, another Egyptian group has called for a ban on the controversial novel Azazeel (Beelzebub) by Youssef Ziedan, which won the 2009 International Prize for Arabic Fiction. And, irony of ironies, just in time for Bloomsday, a manga comic book version of James Joyce’s novel Ulysses had almost been banned from the Apple App Store for obscene images, but Apple then relented, and reversed its earlier decision to remove panels containing nude images, though it still continues to reject less famous apps.
These examples of censorship of literature on the grounds of obscenity are simply the latest instances of a long and dishonourable tradition. In an earlier post, I considered whether Lady Chatterley’s Lover is obscene. In Akdas v Turkey 41056/04 (15 February 2010) (judgment in French; press release in English), the European Court of Human Rights was faced with a similar question earlier this year, when it had to consider whether a Turkish ban on Guillaume Apollinaire’s Les Onze Mille Verges (or, The Eleven Thousand Rods) was consistent with Article 10 of the European Convention on Human Rights. It held that the ban infringed Article 10 (see see ECHR Blog | Guardian | Inforrm | Strasbourg Observers). However, the reasoning by which it reached this eminently sensible conclusion could have profound consequences for states attempting to rely on “the protection of morals” in Article 10(2) to justify restrictions on speech otherwise protected by Article 10(1).
In Handyside v UK 5493/72, [1976] ECHR 5, (1976) 1 EHRR 737 (7 December 1976), the first case on Article 10, the Court took a broad view of what was protected by Article 10(1), but when it came to whether a restiction could be said, in terms of Article 10(2) to be “necessary … for the protection of morals”, the Court held that there is no “uniform European conception of morals” (para 48), with the result that States were afforded quite a generous margain of appreciation to determine in the first instance whether a restriction was indeed necessary for the protection of morals. Subsequent cases have taken a similar approach, but Akdas v Turkey marks a signficant departure from this model.
Paying due obeisance to the Handyside approach, the Court nevertheless tempered it by observing that more than a century had passed since the first publication of the work in France, that it had thereafter been published in numerous countries in various languages, and it that had been inducted into the prestigious Bibliothèque de la Pléiade, now an imprint of Gallimard, a dozen years before being seized in Turkey. As a consequence, the Court held that reliance upon the margin of appreciation would not avail Turkey in this case (in Inforrm’s Blog translation):
[30] … the recognition given to the cultural, historical and religious singularities of member states of the Council of Europe cannot go so far as to prevent public access in a particular language, in this case Turkish, to a work which forms part of the European cultural heritage.
This concept of the European cultural heritage has the potential to act as a signficant check upon over-reliance on the morals exceptoin in Article 10(2). It is certainly a long way from the Handyside assertion that there is no uniform European conception of morals. As Maris Burbergs on Strasbourg Observers points out:
the Court states that the acknowledgment of the cultural, historical and religious particularities of the Council of Europe’s member States could not go so far as to prevent public access in a particular language, in this instance Turkish, to a work belonging to the European literary heritage. Accordingly, the application of the legislation in force at the time of the events had not been intended to satisfy a pressing social need.
Antoine Buyse on ECHR Blog goes further:
Thus, apparently, what has become part of the “canon of art” can no longer be prohibited within Europe. One may wonder what happens in cases where such works truly are offensive to large groups of people and also one may question who decides when a work becomes elevated to this European literary Olympus. Here the Court becomes an interesting player in the ongoing discussion on what is Europe’s common heritage!
Similarly, Inforrm’s Blog says that this conclusion has wide ranging implications:
Many readers of Eleven Thousand Rods will find the contents of the book highly offensive – as indeed did the French public at the time of its publication and for many decades later. When the book was published in England in the 1970s whole chapters were deleted and replaced by short descriptions of the violent acts which were described. The idea that, four decades later, any restriction on the publication anywhere within the Council of Europe States, whatever local sensibilities, is at first sight very surprising. The notion of the “European literary heritage” is one which lacks clear boundaries – certainly in countries which do not have the benefit of the “Pléiade” collection. The judgment does, however, show that contrary to the views of some English critics, the Court of Human Rights continues to take a robust view in “traditional freedom of expression” areas such as obscenity.
One way to test this rather fluid conception of the European literary heritage is to apply it to not just to European books like The Eleven Thousand Rods, Ulysses or Lady Chatterly’s Lover, but to non-European classics such as The One Thousand and One Nights or to important recent publications like Azazeel. If there is no substantive or qualitative difference between them, then the pressure will be on the Court to expand its notion of the European literary heritage, and to narrow the margin of appreciation afforded to member states when the seek to rely on the morals exception. This would be no bad thing.
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 I’m sorry not to have been able to acknowledge the celebration of AFAF’s International Academic Freedom Day on the day itself by a wonderful blog carnival on the right to learn, ably convened by Deirdre Duffy, and hosted by the ever-wondrous Human Rights in Ireland blog. I’ve blogged on academic freedom on many previous occasions (see especially here and here), and I’d like here look at some of the Irish legal aspects of the issue.
Section 14(1) of the Universities Act, 1997 (also here) provides that Irish universities have “the right and responsibility to preserve and promote the traditional principles of academic freedom” in the conduct of their internal and external affairs, and that they are entitled to regulate their affairs in accordance with their “independent ethos and traditions and the traditional principles of academic freedom”. This is an important guarantee of institutional autonomy, and is a sine qua non for the right of academics to teach, research, publish and participate in public debate without fear of retribution from their institutions. That right is secured by section 14(2) of the Act, which provides:
A member of the academic staff of a university shall have the freedom, within the law, in his or her teaching, research and any other activities either in or outside the university, to question and test received wisdom, to put forward new ideas and to state controversial or unpopular opinions and shall not be disadvantaged, or subject to less favourable treatment by the university, for the exercise of that freedom.
This is why, to take the example presented by Rod Thornton in his contribution to the NRinI carnival, research and teaching about terrorism are protected, even as Beshara Doumani’s edited collection Academic Freedom after September 11 (University Of Chicago Press, 1998 | Amazon) demonstrates the increasing antithetical pressures.
Article 13 of the Charter of Fundamental Rights of the European Union provides that “The arts and scientific research shall be free of constraint. Academic freedom shall be respected”. Read the rest of this entry »
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 Dr Johnson defined gallimaufry as
1. A hoch-poch …
2. Any inconsistent or ridiculous medley. …
Here’s a hoch-poch, or hotch-potch (though, of course, not a hotchpot) of links relevant to the themes of this blog that have caught my eye over the last while:
First, an Article 10 Right of Reply? considers the various routes to a legally enforceable right to reply to inaccurate information in the same medium where the original statements were published. In this post, Andrea Martin argued that such a development is neither necessary nor desirable, but that a voluntary scheme operated by broadcast media would have a lot to recommend it.
Second, the Irish judiciary has signalled support for setting up a judicial council, a development anticipated by the ICCL in 2007 which I welcomed at the time.
Third, Slate recently published No More Bullet Points, No More Clip Art (h/t Oisín, offline) arguing that “PowerPoint isn’t evil if you learn how to use it”. But so many people fail to learn how to use it that I have no doubt that my antipathy will continue.
Fourth, a story in the Independent on Plagiarism and PhDs: how to deal with copying says that it “may seem counter-intuitive but postgraduates are more likely to commit plagiarism than undergraduates”. Whether postgrads or undergrads – or of that matter, postdocs, lecturers or professors – we must all be on our guard against plagiarism in the academy.
Fifth, I have long been a strong supporter of open access to academic information, so I am heartened to learn that over 20% of the world’s scholarly journals now open access! (Kudos to DOAJ)
Sixth, Thinspiration: Still legal in the U.S.! picks up the proposed French legislation which I discussed in my post on incitement to anoxeria.
Seventh, the online challenge to traditional third-level education gathers pace: U of California Considers Online Classes, or Even Degrees the University of California “hope to put $5-million to $6-million into a pilot project that could clear the way for the system to offer online undergraduate degrees and push distance learning further into the mainstream …”
Eighth, a woman jailed by a Chicago judge for 2 days for wearing an offensive T-shirt to court recalls my post If t-shirts could talk …, discussing a similar Irish case and a more serious US example (there’s also an earlier Illinois example). Cohen v California 403 US 15 (1971) anyone?
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 Randall P Bezanson has just pubished another very important book on on Art and Freedom of Speech (University of Illinois Press, 2009), exploring the decisions of the US Supreme Court relating to artistic expression under the First Amendment. From the abstract:
… In considering the transformative meaning of art, the importance of community judgments, and the definition of speech in Court rulings, Bezanson focuses on the fundamental questions underlying the discussion of art as protected free speech: What are the boundaries of art? What are the limits on the government’s role as supporter and “patron” of the arts? And what role, if any, may core social values of decency, respect, and equality play in limiting the production or distribution of art?
Accessibly written and evocatively argued, Art and Freedom of Speech explores these questions and concludes with the argument that, for legal purposes, art should be absolutely free under the First Amendment–in fact, even more free than other forms of speech.
In matters that have recently featured on this blog, his views on blasphemy (discussed here) and treaspassory art (discussed here) will resonate with our recent blasphemy and Cowengate controversies.
Mark Tushnet has written an excellent discussion of Bezanson’s book. Posing the question “Why exactly are Jackson Pollock’s paintings protected by the First Amendment?”, he argues that
People should check their wallets whenever the Supreme Court takes some proposition as unquestionable. Randall Bezanson shows why. Every route that you might take to explain why non-representational art is covered by the First Amendment leads to mind-bending problems, and rather rapidly places some other unquestionable proposition about free speech under pretty severe pressure. …
This isn’t to say that Bezanson’s proposed solution to the problems posed for the First Amendment by non-representational art is satisfactory. He says that art should be absolutely protected against government sanction, even more so than propositional speech. … Bezanson sometimes seems to think that his absolute rule is tolerable because he would apply it only to serious art. … Early on, Andy Warhol’s work wasn’t “serious” enough. Now it’s central to the study of mid-twentieth century art, full stop. Rules that purport to make important differences turn on a distinction between serious art and unserious “art” are unlikely to succeed.
It’s worth reading Tushnet’s review in full, and then it’s worth reading Bezanson’s book too. It demonstrates that the most profound questions about freedom of expression are often raised not in the context of the participatory political process but in the contested field of human emotions. The problems outlined in the book are universal; the analysis may be centred on the First Amendment; but it will surely provide a sure guide if and when the issues come up in other courts on foot of other free speech guarantees.
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Two pieces in yesterday’s Irish Times caught my eye. The first relates to the retirement of the man who has probably the most recognised signature in Ireland. The second relates to the responsibility of those who write other words that many of us read.
 For the past six years, every movie released in Ireland has been classified by his office with a certificate signed by him. He is John Kelleher, and he has just retired as Director of the Irish Film Classification Office:
He’s seen nearly 2,000 films personally and supervised the watching of 55,000 others, yet the film censor John Kelleher only banned one film. Mr Kelleher, the director of the Irish Film Classification Office (Ifco), stepped down yesterday just two days short of his 65th birthday. …
He says his biggest achievement in office was to be involved in last year’s Civil Law (Miscellaneous Provisions) Act, which changed the name from the Irish Film Censor’s Office to the [the Irish Film Classification Office] Ifco. The Act changed his job title to reflect his primary role in classifying rather than censoring films. The phrase “likely to cause harm to children” was introduced into the legislation for the first time. [He said:]
I don’t believe in film censoring for adults, I believe in film classification for minors. I hope that people realised that I was trying to ensure that adults could look after themselves, that it was the welfare of children which was paramount
 Established in 2007, the Office of the Press Ombudsman is part of a system of independent regulation for the printed media in Ireland which provides the public with a quick, fair and free method of resolving any complaints they may have in relation to newspapers and periodicals. Prof John Horgan is the Press Ombudsman and he spoke yesterday of the responsibilities of reporters and editors to the their readers:
The credibility of the media is best defended by journalists who recognise that their loyalty to their readers is at least as important as their loyalty to their employers, the Press Ombudsman, John Horgan, has said.
The licence to print is now ultimately granted by the public and can be withdrawn if credibility, reliability, fairness or honesty was put at risk, he warned. “Credibility is like an iceberg: once it melts, it is impossible to reconstitute it.
Prof Horgan, who was speaking at the launch of a memoir by former Irish Times journalist Dennis Kennedy, said journalists were paid to exercise best judgment, though this could be elusive. Editors could find on occasion that such judgment could put them at odds with advertisers or owners, and journalists could find themselves at odds with editors. …
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Posted by Eoin in Censorship
 If Lady Chatterly’s Lover isn’t obscene, how about Lolita? Yesterday’s Times has a fascinating story about Peter Carter-Ruck’s advice to George Weidenfeld in advance of the UK publication of Vladimir Nabokov’s novel (with some added links):
With all the brouhaha over Carter-Ruck allegedly stifling free speech it is intriguing to note that it was the very founder of the firm who struck a blow for freedom of expression 60 years ago. …
In 1727 Edmund Curll was convicted for the common law offence of disturbing the King’s peace over the publication of the erotic book Venus in the Cloister … The precedent for obscenity was set.
Weidenfeld turned to the most famous libel lawyer of his generation, the late Peter Carter-Ruck, … [who] advised that the book was a fair business risk for publication, subject to the amendment of four sentences. Nabokov categorically rejected this advice. …
In the event, Carter-Ruck devised a scheme of remarkable cunning. … He advised that the Government should be informed, by letter, of the intention to distribute the book in this country. A small number of copies of the book were printed, and the letter was sent, but at a critical point — during the period that Parliament was dissolved before the general election. … Carter-Ruck gambled that in the period of inactivity after Parliament’s dissolution, on September 18, 1959, no action would be taken by the Home Secretary over Lolita. Thus the way would be clear for the book’s widespread distribution.
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Posted by Eoin in Censorship
 In the 21st century, the power to censor is not just a matter of state action, and 21st century censorship requires 21st century responses. From the Index on Censorship Free Speech Blog, John Kampfner, CEO of Index on Censorship, writes about their day of action against 21st Century censorship (some links in original, some added):
On the morning of Monday 12 October, Index on Censorship will be teaming up with Policy Exchange and Google to discuss free expression and the Internet. Later that day, Liberty and Index on Censorship will stage Protest! an exciting event encouraging students to exercise their right to free speech, with special guest Sir Hugh Orde, head of the Association of Chief Police Officers.
Why, people might sensibly ask, is Index on Censorship engaging with one of the world’s leading technology corporations and one of Britain’s top police chiefs? The answer is because we no longer see free expression only through the traditional prism of outright state censorship of or violence against writers and journalists.
The issue is more complex than that now. …
More here.
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