Freedom of Expression: part 1

Most totalitarian regimes have an Official Censor: we don’t. But there are still ways in which public authorities and private individuals and organisations are able to restrict freedom of expression.

Striking for the guardians and protectors of the mind
And the unpawned painter behind beyond his rightful time. *

Our laws provide measures and sanctions to enable those concerned to deter and prevent unwelcome manifestations. All artists risk this form of censorship and, usually, the public is denied all knowledge of its having occurred owing to the very nature of the restriction on “publication” imposed by those employing the law. From Artlaw’s casework over the past seven years there is abundant evidence of a perennial problem of “censorship” of artworks which we will now explore in some detail.

By the way of background to this intricate area of law, it is important to observe that the British legal and constitutional framework gives few “rights” to citizens, but rather allows “freedoms”; in other words, the law says that certain activities are forbidden on pain of a legal sanction: legal freedom is given by proscription. And since a golden rule of our law is that everyone is presumed to know the law, other citizens and/or public authorities are given an equal and opposite power to bring sanctions to bear. Let us now examine and illustrate, where possible, particular relevant areas of concern in relation to visual artworks: insults and abuses; profanity; indecency; blasphemy; obscenity; and defamation.

Insults and abuses
Any person who in any public place or at any public meeting or museum to which the public have access distributes or displays any writing, sign or visible representation which is threatening, abusive or insulting, with intent to provoke a breach of the peace or whereby a breach of the peace is likely to occur, shall be guilty of an offence: Section 5 of the Public Order Act 1936, as amended.

  • “Distributes” could include publishing or selling copies of artworks.
  • “Displays” could include an exhibition, a window display or even a sculpture or other artwork in a public place.
  • “Writing, a sign or visible representation” could include any visual artwork.
  • “Abusive and insulting” means that exhibitors must take their audience as they find them; these words are given their “ordinary” meaning; whether an artwork is abusive or insulting is a question of fact for the jury or the magistrates to decide i.e. the question is not was someone abused/insulted, but could someone be abused/insulted. How long is a piece of string?
  • “With intent to provoke a breach of the peace”: this element in the offence is always difficult to prove and the prosecution usually relies on proving the alternative element which is much easier, namely.
  • “or whereby a breach of the peace is likely to occur” i.e. was the artwork likely to (as distinct from liable to) cause a breach of thee peace (i.e. a public disturbance). This offence was created in 1936 to stop public displays/signs/writings (Nazi Party propaganda) which might have caused fights, riots and other public disorder. Unfortunately, artworks are caught by this section and if, therefore, the police received complaints about a work displayed in public, they could (prosecute the exhibitor – not necessarily the artist. However, the work must be considered to be abusive or insulting enough to be likely to provoke a breach of the peace, as opposed to merely causing annoyance.

The following incident occurred recently in the north of England: the artworks were made to be ‘worn’ by otherwise naked people who exhibited the works by walking through the streets of a large city; citizens were outraged and complained to the police (not about the artworks themselves but about female nipples visible through them). The ‘artworks’ were arrested, the bodies inside prosecuted, tried, convicted and sent to prison for a month. Such is life in the North.

Every person who publicly offers for sale or distribution or exhibits to public view any profane book, paper, print, drawing, painting, or representation, shall be guilty of an offence: section 28 of the Town Police Clauses Act 1847, as amended. There is no legal definition of profanity in this context; your guess is as good as mine. This offence could include any artwork in any public place.

In the celebrated recent case of Regina v Lemon in 1979, the House of Lords, after reviewing earlier legal authorities on the law of blasphemy, laid down that blasphemous libel was the publication of any matter that insulted, offended or vilified the Deity or Christ or the Christian religion; that it was the publication of an offensive nature, or in offensive terms to the Christian religion that constituted the offence; and that, provided there was an intention to publish the material, the absence of an intention to be blasphemous was irrelevant. Lemon’s case involved the publication of a poem in which Christ was mentioned in terms which were said to be blasphemous.

  • “Publication” could include a public exhibition of an artwork, as well as in a magazine, newspaper, journal or book, or the publication of an edition of prints.
  • “Matter” could include any artwork.

Although prosecutions are extremely rare, they are a real possibility, with these provisos: that no prosecution could be sustained at the present day for calmly and dispassionately discussing, or even calling in question, the truth of Christianity; and that the offence of blasphemy consists in attacking it by ribaldry, profanity or indecency, and not in endeavouring by legitimate argument to prove its falsity. That appears to be the current legal position.

It is an offence to publicly display any indecent matter, but art galleries and museums are exempt if the work is visible only from within the premises: the Indecent Displays (Control) Act 1981.

It is also an offence for a postal packet to be sent through the mail which encloses any indecent or obscene print, painting, photograph, lithograph, engraving, cinematograph film, book. card or written communication, or any indecent or obscene article; or for a postal packet to have on its outside grossly offensive, indecent, or obscene matter: Section II of the Post Office Act 1953, as amended.

  • “Indecent” is not defined, but is judged by the juries or the magistrates’ applying a lower standard than for “Obscene”, in this context.
  • “Obscene” requires the juries or the magistrates’ applying a single objective standard (as opposed to an assessment of the effect on the addressee) which is higher than the indecency test: hence, anything obscene is always also indecent (but not vice versa).
  • It is also an offence to import indecent or obscene prints, paintings, photographs, books, cards, lithographic or other engravings, or any other indecent or obscene articles: Section 42 of the Customs Consolidation Act 1876, as amended.

Two important areas remain to be examined: obscenity and defamation. The will be dealt with in detail in Part B.

© Henry Lydiate 1983.
*© M. Whitmark & Sons 1964.

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This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.