Cowengate and Freedom of Expression

No image, to represent the attempt to censor the Cowen caricatures

Suzy must get the prize for popularising the best political coinage of the day, for – so far as I can see – it is she who has run with the name “Cowengate” for the sturm und drang surrounding satirical portraits of the Taoiseach (Prime Minister), Brian Cowen. In a piece of guerrilla artistry as ingenious as the coinage Suzy has popularised, caricatures of Mr Cowen were anonymously hung on the walls of the National Gallery of Ireland and the Royal Hibernian Academy. Once they were discovered, they were removed, but not before they had garnered sufficient publicity for RTÉ (Raidio Telefís Éireann, the national state broadcaster) to broadcast a story about them on the flagship 9:00pm television news programme.

It has been the occasion for lots of bad puns and some embarrassment on the part of the Taoiseach, the Gallery and the Academy, but in the ordinary course of things, the story should have blown over after about 48hours. However, things then took two turns for the worse. First, RTÉ apologised to Mr Cowen and his family or for any disrespect shown to the office of Taoiseach by their broadcast. Second, when the radio station Today fm covered the story, the Gardaí (the police) arrived at the station asking that an email with the artist’s details be handed over (.wav). Leaving the obvious jokes aside (because they have all been done better elsewhere), these two quite sinister developments raise some profound questions about freedom of expression in Ireland.

The first question relates to the artist’s freedom of expression. Is it illegal to paint nude caricatures of the Taoiseach, or is this protected by the constitutional right to freedom of expression? I just don’t see how it can amount to incitement to hatred against a group of persons [update: or to an obscene representation provocative of a breach of the peace]; nor are the censorship regimes for films or publications engaged. All that’s left is the (still extant) common law crime of obscene libel, which criminalises publication of matter with a tendency to deprave and corrupt (R v Hicklin (1868) LR 3 QB 360). [I leave aside questions of civil defamation or other similar claims, as they would not implicate criminal investigation and/or prosecution; update: though the ugly crime of seditious libel might raise its ugly head]. The last time the criminal libel ‘tendency to deprave or corrupt’ test was implicated in an Irish case was 1959 (see AG v Simpson (1959) 93 ILTR 33, discussed in Gerard Whelan and Carolyn Swift’s palpably angry Spiked: Church-State Intrigue and the Rose Tattoo (Dublin: New Ireland Books, 2002) (summary review here); it concerned a production of the wonderful Tennessee Williams play The Rose Tattoo featuring Anna Manahan); its vagueness must be seriously open to constitutional challenge; and anyway, it is hard to see how the Cowen caricatures satisfy even this nebulous standard. In the circumstances, I find it difficult to see what crime the artist committed.

However, even if one of these crimes is implicated, I can’t see how it could survive constitutional challenge: artistic expression is at the heart of the right to communicate in Article 40.3 whilst political expression is at the heart of freedom of speech in Article 60.6.1(i) (as these articles are explained by Barrington J in Murphy v Independent Radio and Television Commission [1999] 1 IR 12, [1998] 2 ILRM 360 (28 May 1998) (doc | pdf)). The caricatures of the Taoiseach are not only exercises in artistic expression, they are also pre-eminent examples of satirical political dissent. Political speech – in particular when it is unpopular, even in dissent – is at the heart of the rights protected by Article 40.6.1(i) (and by Article 10 of the ECHR), and the subversive lampooning of powerful political figures as a means of expressing political dissent is part of a tradition that goes back at least as far as Aristophanes and reaches to Scrap Saturday, Spitting Image and The Daily Show (to say nothing of Martyn Turner‘s wonderful political cartoons), even where it is anonymously expressed.

The second question relates to RTÉ’s freedom of expression. Was it illegal to broadcast the story, or is it protected by the constitutional rights to freedom of expression and freedom of the press? If there was no legal problem with painting the Cowen caricatures in the first place, then there would be no legal problem with broadcasting about them. And even if there were, not only could RTÉ rely on the arguments about 40.3 and 40.6.1(i) already made, but they could also invoke the protections for freedom of the press in the latter article. As a consequence, RTÉ could easily have chosen to stand over their broadcast. But they chose not to, and they even broadcast an apology. There seem to be no legal reasons for this change of mind. In the end, it would seem that it was considerations of taste, appropriateness and editorial judgment rather than of legal constraint which drove RTÉ’s change of mind.

The third question relates to Today fm’s sources. Whether journalists have a privilege at Irish law to decline to reveal their sources has not yet been decided at Irish law. It would be ridiculous if the matter were to be tested on these facts. The fourth question relates to the artist’s use of the Gallery and the Academy. Was it illegal to hang the paintings there, or is this too protected by the constitution? Driving nails into walls in the Gallery and the Academy may very well constitute criminal damage (though the damage from a single nail in each case may be sufficiently trivial that law ought not to concern itself with it). [Update: Entering the Gallery and the Academy for reasons other than viewing their objets d’art could constitute a criminal trespass of some sort (though, again, each trespass may be too trivial); further update: and any civil trespass, like civil defamation (above) would not implicate criminal investigation and/or prosecution]. However, even this criminal damage [update: or trespass] may be constitutionally protected, if the gallery and the academy constitute public fora dedicated to expressive activities and thus worthy of constitutional protection. This doctrine has not been considered as a matter of Irish constitutional law, but this affair may yet provide the crucible in which it may be tested.

Cowengate has provoked a storm of controversy, but the high emotionalism provoked by the caricatures has aroused entirely misguided state action. They were no more than a critique of the Taoiseach, and though plainly emotive, they are nevertheless classical political speech, and thus deserving of the highest constitutional protection.

Note 1: As to the coinage of “Cowengate”, see Gerard‘s comment below, and see also Cerandor. The more popular, but less inspired, soubriquet – especially on Twitter, as Tom (also here) points out in the comments below – seems to be ‘picturegate‘, though even there you’ll also find ‘cowengate‘, ‘cowangate‘ and ‘cowngate‘.

Note 2: I’ve updated the links here, corrected the typos, and tidied up the text. I’ve moved the “other coverage” links to a separate post: Cowengate: Pictures at an exhibition (below), and it has been supplemented by Cowengate follow-on: a question, and more pictures at the exhibitions, Cowengate and seditious libel, and Cowengate: no use crying over spilt milk. There will be no further amendments here – the text of this post is now closed.