Power Plays: Chimes of Freedom

The attempted censorship of the Power Plays exhibition at the Ferens Art Gallery by Hull City Council in October raises issues of the greatest importance. An explanation of its legal facets will enable us to explore what lessons may be drawn for the future.

This appears to have been the scenario:

Act 1: Getting It Together
The Bluecoat Gallery put together the show, which comprised works by Sue Coe, Jacqueline Morreau and Marisa Rueda, and was financially supported by Merseyside Arts; it was exhibited there, and then offered for hire as a touring show.

Act II: Down The Road Apace
It was then taken to the Pentonville Gallery, thence to Washington in County Durham, arriving at the Ferens Art Gallery towards the end of the summer for an opening on September 28. The artist/exhibitor Morreau had hired it from the Bluecoat and had negotiated an exhibition contract with Hull City Council through officers in charge of their gallery there.

Act III: Another Opening Of Another Show
The professional arts administrators at the gallery took delivery and hung the show, which previewed on September 28. Hilary Robinson takes up the story (see Art Monthly, No 81, p 21): Councillor Tully, present at the preview, required that Coe’s piece The Rape of Rosa Velez be removed from the exhibition, since in her view it was too ‘disturbing’; the Council’s Cultural Services Committee (CSC) met and supported this move.

Act IV: Don’t Bring Me Down
The room at the Ferens containing Coe’s piece was closed pending the outcome of a meeting of the full Council; CSC’s decision was confirmed. Protestors lobbied for a further review by the CSC, and a meeting was arranged to be held in public. Morreau finally tracked down her art-lawyers who immediately contacted the Council’s lawyers and, through them, the CSC, which was still in public session. The work was re-instated. What influence did the art-lawyers have on the outcome? The legal position appears to have been this.

Side 1: Exhibition Contract
Morreau had executed and performed a contract with the Hull City Council, the essential terms of which required them to show the works (including The Rape of Rosa Velez) at the Ferens for a fixed term; in return for which Morreau had agreed to deliver and make the works available for showing there for that period. Both parties had fulfilled their contractual obligations until the shut-down before the end of the full term of the contract. There appeared to be a breach of that contract, and in very fundamental terms, entitling Morreau (who in turn had contractual obligations to the other artists) at least to compensation for the damage done, i.e. lost exposition time there for all the artists, or for the costs or re-arranging a further showing of the works elsewhere in Hull (if that could be achieved).

Against this, the Council could counter that the exhibition contract (or at least the part relating to Coe’s work) could not be performed because it involved an illegal act, i.e. it might involve the Council in committing a criminal offence by showing offensive work in public. If this proved to be so, then the Council might well be justified in refusing to perform their contractual obligation by shutting down any offending works.

What might have been an illegal act by the Council?

Side 2: Offensive Publications
There is no comprehensive, coherent code of law dealing with offensive publications.

Piecemeal measures have been introduced by Parliament over the centuries, proscribing certain activities in an effort to protect the public from offence. Most of these measures are contained in the criminal law, which requires prosecutors to be able to prove their case beyond a reasonable doubt. In this particular case, the Council might well have considered any or all of the following:

Insults and abuses
Any person who in any public place displays any visible representation which is threatening, abusive, or insulting, whereby a breach of the peace is likely to occur, may be guilty of an offence contrary to Section 5 of the Public Order Act 1936. ‘Public place’ could include a gallery; ‘visible representation’ could include artworks in exhibition. ‘Abusive or insulting’ are more tricky words to define in this context; it really depends on what a jury feels, i.e. could someone be insulted or abused? The final element, a breach of the peace being likely, is also very difficult. In fact these latter elements are usually (and sensibly) left to the police to decide for themselves operationally whenever an incident occurs: whether or not they are correct in their judgement is still a matter for the jury. In this particular case the police did not appear to be unduly concerned – probably because the 1936 Act was created solely to deal with serious disorder on the streets, usually of a violent nature, normally arising out of political meetings or demonstrations.

The Indecent Displays (Control) Act 1981 created an offence of publicly displaying any indecent matter – but specifically excluded art galleries and museums, so long as the work was visible only from within the premises. This statute – Parliament’s very latest pronouncement on the subject – is probably the key to finding a solution for this kind of case. Brought forward, it should be remembered, by a conservative Government riding on a law and order ticket, this law clearly envisages that art galleries and museums may well show works which appear to fall within the lay public’s notion of ‘indecent’; that such works should still be available for public consideration; and, most importantly, places the utmost faith in the professional skills and judgements of arts administrators. A surprisingly enlightened measure, which arguably solves the case. But does it? No; obscenity must now be considered.

Increasing public concern has been expressed in recent years over what is ‘obscene’ within the meaning of the Obscene Publications Act of 1959. Note the year: 1959; note the comments made above regarding the Act of 1981: but also note that the adjective ‘indecent’ connotes a lesser degree of offensiveness in law than does the adjective ‘obscene’. Is it possible, therefore, for visual artwork to be prosecuted as being obscene?

Since 1964 it has been an offence for any person to have an obscene article in their possession or control with a view to publication. Unlike the 1981 Indecent Displays (Control) Act, galleries and exhibitors are not specifically excluded by the 1964 Act, but there is a specific provision in that Act for them. It is a defence to prove that the exhibition is justified as being for the public good on the ground that it is in the interests of science, literature, art or learning, or of other objects of general concern. This defence can be established by expert witnesses being called to give their opinions of the ‘artistic’ merits of the work for these purposes. Although the burden of proof is on the defence, the police (who normally initiate prosecutions) recognise operationally that the availability of this defence puts galleries and museums in a special and very strong position; and, for most practical purposes, such bodies are usually left to get on with their work without prosecution.

In any event, this particular obscenity offence is not one which enables the police to arrest the accused exhibitor without a warrant: and so the usual police drill is to have ‘a quiet word’ with the gallery’s officers about material in respect of which they received strong and/or numerous complaints from the public.

Side 3: Striking The Balance; Chimes Of Freedom
Returning now to the CSC’s public meeting, they had to strike a balance: was it more likely that the continuance of the uncensored exhibition was illegal – or not? If illegal, there could be no breach of contract by them and consequently no realistic prospect of success for an action against them for damages: if not illegal, there could be.

The intervention of Morreau’s art-lawyers undoubtedly put this to the Council in clear but fair-and-square terms: they did not consider the exhibition offended the law at all, and certainly not beyond all reasonable doubt; and they required the Council to re-open the exhibition in its full and original format, or suffer the consequences of a fundamental breach of contract with Morreau.

Was it likely that the continuance of the exhibition, uncensored, would contravene the law? Here we must bring in the professional arts administrators: they had contracted to take the show; they had seen the works and hung them; they backed its uncensored continuation. Bearing in mind everything said so far about the law’s modern approach to offensive publications in galleries and museums, it is perhaps not surprising that the Council – after the fullest advice, from all quarters – reached such a sensible decision.

For those who still share Hilary Robinson’s genuine concern that a council, whether at Hull or elsewhere, might set up a committee of lay folk with powers of veto at planning stage over any exhibition under its banner, there is one important lesson to be drawn from this case. Local authorities are creatures of statute, wherein lie all their powers and duties; it is no part of any statute that they have any specific duty to protect the public against offensive publications; that is the job of the law of the land; that law tacitly entrusts professional arts administrators with the task of ensuring that objects of general concern, specifically art, can be seen by the public – recognising at the same time that such works may, at first blush, appear to be indecent or obscene. At Hull, the councillors eventually arrived at an understanding of this point; and so it is hoped they can be relied upon further to respect and trust the good offices of their professional arts administrative personnel
– for it is they alone who are equipped to ensure that all artworks deserving the public’s consideration are given a proper, reasonable and lawful exposition.

Finally, for those unable to begin even to consider any of these points, just try these further thoughts:

Starry-eyed and laughing as I recall when we were caught
Trapped by no track of hours for they hanged suspended
As we listened one last time and we watched with one last look
Spellbound and swallowed ’til the tailing ended
Tolling for the aching ones whose wounds cannot lie nursed
For the countless, confused, accused, misused, strung-out ones and worse
And for every hung-up person in the whole wide universe
And we gazed upon the chimes of freedom flashing. *

Have a good Christmas and New Year

© M. Witmark and Sons 1964
© Henry Lydiate 1984



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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.