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.

You know how it goes at this time of the year – there are lists, lots of them, both of the best/worst of the year that is past and of resolutions and predictions for the year that is coming. I don’t usually go in for either, but one of those lists directed me to such an interesting post that in this case I’ll make an exception. The list is the 2008 ABA Journal Blawg 100, the 100 best Web sites by lawyers, for lawyers, as chosen by the editors of the ABA Journal. The winning blog in the Law Professors category is Jonathan Turley, and this recent post of his caught my eye:

Punitive Extraction: Dental Student Wins $1.7 Million From Four Faculty Members for Dismissal

In an impressive verdict, Alissa Zwick a former dental student at the University of Michigan has won a $1.72 million verdict with punitive damages from four faculty members (Dr. Marilyn Lantz, an associate dean, and Drs. Bill Piskorowski, Mark Snyder and Fred Burgett) for her dismissal for alleged academic deficiencies. It is a rare verdict in an area generally left to the discretion of faculty.

The trial in the case lasted 14 days and the jury found that the faculty had violated Zwick’s due process rights, awarding a $1 million punitive damages award and $500,000 for emotional distress.

The four defendants have asked U.S. District Judge Marianne Battani to set aside the verdic due to “irrelevant and unfairly prejudicial” evidence. They continue to maintain that Zwick was not fit to be a dentist due to her poor performance in clinical tests. She claims, however, that the dismissal was due to a dispute with Lantz and other faculty. Zwick, 30, is now studying at Eastern Michigan University for a master’s degree in speech pathology.

For a copy of the earlier motion for summary judgment in the case, click here.

For the full story, click here.

Ouch!

Oh, and, happy new year