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:

‘I don’t believe in censoring for adults’

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:

Press ombudsman stresses duty of journalists to 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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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):

Lolita: how a lawyer’s cunning plan paid off for Vladimir Nabokov

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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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):

The new free expression debates

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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I suppose if I spent ages thinking about it, I could find a spurious thread linking three stories that caught my eye over the last few days, but in truth there is none, except that they update matters which I have already discussed on this blog. (Oh, all right then, they’re all about different aspects of freedom of expression: the first shows that copyright should not prevent academic discussion; the second shows that hecklers should not have a veto; and the third is about broadcasting regulation).

First, I had noted the proclivity of the estate of James Joyce to be vigorous in defence of its copyrights; but it lost a recent case and now has agreed to pay quite substantial costs as a consequence:

Joyce estate settles copyright dispute with US academic

The James Joyce Estate has agreed to pay $240,000 (€164,000) in legal costs incurred by an American academic following a long-running copyright dispute between the two sides. The settlement brings to an end a legal saga that pre-dates the publication in 2003 of a controversial biography of Joyce’s daughter, Lucia, written by Stanford University academic Carol Shloss. …

More: ABA Journal | Chronicle | Law.com | San Francisco Chronicle | Slashdot | Stanford CIS (who represented Shloss) esp here | Stanford University News (a long and informative article).

Second, I have long been of the view that hecklers should not be allowed to veto unpopular views, and none come more unpopular that holocaust-denier David Irving. Now comes news that NUI Galway’s Lit & Deb society have withdrawn their controversial invitation to Irving for security reasons:

David Irving address in NUIG cancelled due to ‘security concerns’

The proposed visit of the controversial historian David Irving to the NUI, Galway Literary & Debating Society has been cancelled. In a statement the Lit & Deb said the cancellation was “due to security concerns and restrictions imposed by the university authorities”. …

Read the rest of this entry »

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The Broadcasting Act, 2009 (pdf) sets the regulatory framework for broadcasting services in Ireland. It consolidates all Irish broadcasting legislation into a single Act, and establishes a new Broadcasting Authority of Ireland (BAI, incorporating the functions of the current Broadcasting Commission and RTÉ Authority). According to Paul Cullen in today’s Irish Times, the BAI is to be established this week:

A new authority with powers to regulate all broadcasting, both commercial and RTÉ, is due to come into existence this week.

The Broadcasting Authority of Ireland (BAI) is expected to begin operations next Tuesday once the Cabinet approves five nominations to its board by Minister for Communications Eamon Ryan. The remaining four board members will be appointed by the Government on the nomination of the Joint Oireachtas Committee on Communications.

A little while ago, the Sunday Business Post reported that the Committee has decided to advertise those posts, so that it will be some time before they are appointed and that the Board will be only partially in place this week. Whether fully or partially established, there will be much for it to. For example, Cullen reports that

… One of the first tasks of the new authority will be to draw up new rules governing the advertising of junk foods on television, something which is specifically provided for in the new legislation. A new code to govern religious advertising is also in planning. …

Inevitably, however, not all of its proposed work has met with approval. For example, writing in yesterday’s Sunday Independent, Colum Kenny also noted that the BAI is expected to be established this week, but raises some alarm bells:

Offence clause may chill broadcasters

Curb on offensive material is only one of the tricky issues facing new watchdog, says Colum Kenny

THE new Broadcasting Authority of Ireland (BAI) has powers to fine broadcasters that “cause offence”. … The Broadcasting Act 2009 has introduced a duty on broadcasters to ensure that “anything which may reasonably be regarded as causing harm or offence” is not broadcast. …

The Department of Communications said last week that the new provision simply replaces former requirements relating to “taste and decency” and is in line with international practice. … Causing offence can be a constitutional right. It is also a good thing if it shakes people out of complacency about institutional hypocrisy or challenges personal misbehaviour. … Just how the BAI will interpret its duty to stop all broadcasters from causing harm or offence will emerge when complaints are made to it or to its new Broadcasting Compliance Committee. The existing BCI has been slow to intervene in the provision of content, allowing considerable freedom to broadcasters to do as they wish. …

Section 39(1) of the Act provides in part (with emphasis added):

Every broadcaster shall ensure that—
…
(d) anything which may reasonably be regarded as causing harm or offence, or as being likely to promote, or incite to, crime or as tending to undermine the authority of the State, is not broadcast by the broadcaster, and
(e) in programmes broadcast by the broadcaster, and in the means employed to make such programmes, the privacy of any individual is not unreasonably encroached upon.

Like Colum, I am also uncomfortable with elements that provision, but a similar offence clause in the UK survived challenge in R v BBC ex parte Pro Life Alliance [2004] 1 AC 185, [2003] UKHL 23 (10 April 2003), and I doubt that an Irish court would come to a different conclusion.

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The current issue of the European Human Rights Law Review ([2009] 3 EHRLR | table of contents (pdf) | hat tip ECHR blog) contains a wonderful piece by my colleague Dr Ewa Komorek entitled “Is Media Pluralism a Human Right? The European Court of Human Rights, the Council of Europe and the Issue of Media Pluralism” [2009] 3 EHRLR 395.

Here is the abstract (with added links):

The need for pluralist media stopped being purely a national concern a long time ago and thus it has for decades been subject to scrutiny by the Council of Europe and the European Court of Human Rights. Media pluralism has always come to their agenda as a prerequisite for freedom of expression guarded by Article 10 of the European Convention of Human Rights. It is important to distinguish the two ‘faces’ of media pluralism: internal (which may also be called content pluralism or diversity) and external (or structural). This article focuses on television broadcasting and argues that while the Court of Human Rights has essentially been successful in safeguarding internal pluralism, the protection of structural pluralism proved more difficult to achieve by means of the Court’s case law. This prompted the Council of Europe to step in and attempt to fill the gap with regulatory proposals. The conclusion is that although there is still a need for a binding ex ante action at the European level aimed at safeguarding pluralism in this ever concentrating sector, the efforts of the Council of Europe and the judgments of the European Court of Human Rights are vital for awareness raising and stimulating debate.

In Ewa’s view, therefore, media pluralism should be given a far stronger voice in European debates than it currently enjoys, and one way to achieve this would be to strength its status as a right not only in the Council of Europe but also in the EU. For example, Article 11(2) of the EU Charter of Fundamental Rights provides that “the freedom and pluralism of the media shall be respected”, and Ewa’s compelling analysis of the cognate Article 10 can go a long way towards giving full effect to this provision. But this is not the only interesting piece in the journal. Indeed, this issue is a veritable Aladdin’s Cave of fascinating articles: Read the rest of this entry »

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