Sensation and All That

Do the laws of freedom of speech apply to images? How do laws recognise cultural differences between different countries? Should everything be allowed to be exhibited? If not, how do we regulate? How do politics play a part in all of this?

These were the four opening questions raised by Sandy Nairne when he chaired a panel discussion held at the Royal Society of Arts in London earlier this year. Nairne, then Director: Programmes at Tate (now Director of the National Portrait Gallery), was supported by three panellists: James Fitzpatrick of the US law firm Arnold and Porter; Norman Rosenthal, Exhibitions Secretary at the Royal Academy of Arts in London; and artist Jake Chapman. The audience also contributed to this semi-public discourse.

The lawyer’s perspective focused on the ‘culture awards’ issue in the USA. In recent years right wing politicians have found themselves increasingly allied with the religious right in lobbying against the freedom of artists to express themselves through their works. The US Constitution guarantees ‘freedom of speech’, but does not offer artists the right to support or subsidy; however, the Constitution does prevent Government Officials discriminating against artists (in the giving of financial awards) on the grounds of the ‘unacceptable’ nature of their works. All of this can be set against a lack of any historical tradition in the USA of federal funding for the arts (the National Endowment for the Arts was established only in 1965). In short: should public money be spent on contemporary works of art that the public finds offensive?

Fitzpatrick referred to significant recent case histories. In the late 80s the NEA contributed funding to a major retrospective of Robert Mapplethorpe’s work, which included (as the US media widely reported) the artist’s ‘X files’ made up of explicit sexual and homosexual photographs. This incident triggered what became labelled as the ‘culture wars’ in which the ‘appropriateness’ of exhibiting a range of Mapplethorpe’s work dealing with racial and gender issues, and his photographs of children, was fiercely debated. Other artists’ works soon became caught in the cross-fire, causing a ‘Congressional firestorm’ and calls for the NEA’s abolition. Senator Jesse Helms was one of the leading attackers of such works (he ordered women staff at the Senate to leave the Chamber when he showed slides of the works in question) and inevitably calls were made for federal funding only to be given to ‘decent’ art.

In the event, the NEA was completely re-structured, its federal funding halved, and its ability to fund artists directly severely constrained. Congress narrowly avoided voting for the abolition of the NEA. Lessons learned from this ‘ten-years’ war’, according to Fitzpatrick, include the recognition that censorship never works, because people will always want to see the work and judge for themselves; the censorship ‘sells’ (visitors/newspapers/broadcasts); that there is still a ‘mighty powerful’ religious right in the USA, where there remains a long tradition of conservatism, yet an equally strong belief in the freedom of expression; that images of gay sex will continue to outrage a significant section of the public, and that so-called ‘kiddie porn’ will continue to be unacceptable to the public generally, and the courts in particular. Fitzpatrick’s personal conclusion was to let people see the work and judge for themselves – in a free society only individuals must judge what is acceptable.

I don’t think about those issues at all, I only think about art’ was Norman Rosenthal’s opening sentiment and he went on to observe that our society is not as repressive as, say, the former USSR, where art still got through to the public, we take our free society for granted too often, and ‘political correctness’ imposes enormous constraints on artists and the public. In short, we must judge each case on its own merits.

Rosenthal referred to his ‘Sensation’ exhibition, shown in London, Berlin and New York. In Berlin, ‘no one batted an eyelid’ – they simply debated and discussed the show: ‘in the end all art is moral and cannot be censored’. In Rosenthal’s view the ‘real’ pornography was to be found on ‘page 3’ tabloids, and the media imputed scandal where there was none – especially during the silly season of the Summer months. For example, in relation to Marcus Harvey’s Myra Hindley painting, Rosenthal had held a press conference for the show in the Spring, long before the September opening, when the painting was shown to the media. But the scandal only broke in the press the following August. In that case, the work was about very serious and important art and political issues, but the media tried to have the show and/or the work banned. In Rosenthal’s view, it is a paradox that censorship actually comes from the so-called ‘free press’: someone threw a pot of paint at the work, which was cleaned up and placed behind glass, with increased numbers of invigilators; many more visitors came thereafter, and the show was judged therefore to be a great success.

Reference was also made to last year’s challenge by London’s Metropolitan Police to the Saatchi Gallery exhibition of Tierney Gearon’s photographs of part-naked children (see AM245). Rosenthal asserted that there was nothing intrinsically wrong with depictions of naked men, women or children, or of an aroused human being; in court cases about such works, the forensic issues have always (rightly in his view) been about context and differentiation. For example, in the USA the Myra Hindley image provoked no adverse reactions, whereas there were strong reactions to Chris Ofili’s 1996 painting The Holy Virgin Mary and the use of dung. It was interesting to note that even some (usually older) artists formally complained about (usually much younger) artists’ works – but, in truth, because they feel their positions are being threatened – as happened in relation to the ‘New Spirit in Painting’ exhibition when ‘the RA was in total turmoil’.

In his concluding thoughts, Rosenthal asked what was the real pornography: in his view it was to be found not in artworks but in acts of terrorism, wars, poverty and so on. If it is art it cannot be pornography – art is by definition a moral thing, and pornography by definition is not.

Chapman’s approach to the issue was to discuss the underpinning causes of censorship, referring to literary work by Masoch, Freud and de Sade en route to suggesting that, in social terms, censorship was a ‘masochistic social contract’ – in other words, censorship was ‘how we terrorise ourselves’. Censorship was practised by a ‘privileged few exercising this power over the majority’. Art could, in his view, only be deemed offensive by its audience, and not in and of itself; and so problems occurred when there was public access to works and people felt threatened by what they saw. Many people still subscribe to the idea that a ‘work of art’ is necessarily idealistic – offering models for life – but contemporary artists increasingly challenge that notion through works which are intended ‘not to be nice’.

In the ensuing ‘question time’ the audience contributed additional perspectives and issues. There has been a blurring of traditionally accepted boundaries in recent years with, for example, pornography on the Internet and on Channels 4 and 5: this, it was contended, was a reflection of Post-modernism. Rosenthal disagreed, re-asserting that each thing must be judged on its own merits and in its own context, and Chapman commented that pornography does not have the ‘essence’ that art has, even though pornography could itself be art.

The panel was asked for its views on the withdrawal of work by artists themselves as was the case, for example, with Stanley Kubrick’s film A Clockwork Orange. Fitzpatrick believed it to be the artist’s right to do so, Chapman felt unable to oppose censorship and Rosenthal said that he did not plan an exhibition in order for it to be censored.

Other issues raised included the power of sponsors of exhibitions to insist that ‘offensive’ works are removed, and how curators could be helped to resist such pressures; and the assertion that artists have always found ways to break free from any constraints placed on them by society. The journalist and broadcaster, Joan Bakewell, referred to her recent television series ‘Taboo’ and commented that there will always be censorship, but that its boundaries will always move – interesting comparisons could be made with Charles Dodgson’s photographs of girls in the 19th Century and Mapplethorpe’s pictures a century later, and the respective responses of the society at the time. The constructive nature of the debate helped to reveal some of the many facets of the issue, and to edge towards an understanding of society’s concerns about offensiveness and harm to vulnerable people, and of the artist’s right to make and expose work which might be difficult for some to experience. What appeared to emerge towards the end of the debate was the importance of the role of the curator/exhibition organiser in operating as a professional interface between, on the one hand exhibiting artists (and their right to make work) and, on the other hand, the right of the public to be protected against offensive or harmful images. In that role, the way curators create an appropriate context for the presentation of the work to the public would appear to be crucial – and an understanding by them of the laws of indecency, obscenity and the like is essential if they are to strike the right balance.

© Henry Lydiate 2002



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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.