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Censorship Envy in England:

The Daily Mail (UK) reports:

A leading art gallery is being taken to court over claims that it outraged public decency by displaying a statue depicting Christ with an erection....

Other pieces in the show by the controversial Chinese-born artist Terence Koh included models of Mickey Mouse and ET, also with erections. [The gallery, which opened in 2003 after a £35million grant from the Arts Council, included] signs warning of the exhibition’s explicit nature ....

A private prosecution has now been launched .... Legal documents claim that the gallery has both offended public decency and breached Section 5 of the Public Order Act 1986.

The maximum penalty for outraging public decency is six months’ imprisonment and a £5,000 fine.

The documents claim that the foot-high sculpture was ‘offensive and disgusting’ and ‘likely to cause harassment, alarm or distress to Christians and those of other faiths’.

Legal experts said yesterday that the hearing would be the first test of public decency legislation since the Government scrapped Britain’s ancient blasphemy laws in May....

The prosecution has been launched by Emily Mapfuwa, 40, an NHS administrator from Brentwood, Essex, who read about the exhibition in newspapers. ‘I don’t think this gallery would insult Muslims in this way, so why Christians?’ she said....

I think this is pretty vulgar stuff, but should clearly be protected against legal punishment. It would be in the U.S., and it ought to be in other democracies; religions and religious figures are proper subjects for debate and commentary, both rational verbal debate and commentary, and the subtle commentary that can be offered by art.

And I think the Supreme Court was right in Cohen v. California to rejct the argument that some commentary can be barred with no free speech problems on the grounds that it's vulgar, or offensive because of its form rather than its content: There are no legally administrable lines -- at least of the sort that are likely to survive pressure for expansion -- that would distinguish impermissibly vulgar criticism from permissible criticism. I hope England courts reject the complaint. (Whatever one might say about the propriety of huge discretionary grants going to galleries that include offensive speech, the issue here is criminal punishment, not withdrawal of funds.)

It also seems to me that this helps illustrate the force of censorship envy. When speech hostile or insulting towards one religion or symbol is suppressed by government action (as has been urged by many in Europe and Canada with regard to the Mohammed cartoons), or by self-censorship in the face of threatened violence, what happens when other groups are similarly offended? Their sense of outrage -- and of entitlement to similar suppressive power -- is increased, because they are now outraged by the perceived unequal treatment as well as by the original offense.

Then, either the other speech will be suppressed, too, in which the scope of speech restrictions (again, either legal restrictions or restrictions prompted by fear of violence) increases. Or the other speech won't be suppressed, in which case the offended groups will become even more offended -- and then an attempt to prevent offense and maintain social harmony (which is how the original restriction is often justified) will have exacerbated offense and reduce social harmony. That's true, as I argued, about flagburning bans; and it's true about bans and other coercive restrictions on insulting representation of religious symbols.

wm13:
I agree with every word Prof. Volokh writes here. What a shame that large number of his fellow American university professors don't.
7.31.2008 3:15pm
R Gould-Saltman (mail):
The gallery and Mr. Koh may get in much deeper trouble, becaus e they've blasphemed Mickey.
7.31.2008 3:18pm
Federal Dog:
The best way to respond to puerile crap is to ignore or mock it. The guy's an arrested adolescent craving attention, like all adolescents do.
7.31.2008 3:21pm
SATA_Interface:
wm, cite?
7.31.2008 3:35pm
Nick P.:
Would you explain what a "private prosecution" is?
7.31.2008 3:35pm
Adam J:
wm13- Seriously? You think that most professors in the US aren't against censorship?
7.31.2008 3:36pm
some dude:
Mickey Mouse with an erection? Is Mr. Koh in Jr. High?
7.31.2008 3:42pm
zippypinhead:
Professor V. writes:
I think this is pretty vulgar stuff, but should clearly be protected against legal punishment. It would be in the U.S., and it ought to be in other democracies
"Ought to be," yes, at least from the perspective of anyone who buys into the basic concept of the U.S. Bill of Rights. But the U.K. doesn't have a Bill of Rights. This tends to cause legal outcomes in the U.K. that wouldn't happen here in all sorts of contexts.

Just because I like starting raging bonfires, I'll note that cynics might argue a true Libertarian should respect the informed, democratic judgment of a society as to the outer parameters of it's own members' rights. Under U.K.'s legal system, Parliament presumably is entitled to set the boundaries on the common-law doctrine of freedom of speech.

And more importantly, Mickey Mouse with an erection OUGHT to be outlawed in the E.U. as violating the fundamental human rights and dignity of cartoon mice everywhere, right?
[/sarcasm off]
7.31.2008 4:19pm
Eugene Volokh (www):
Zippypinhead: Why would you say that a true libertarian -- as opposed to a true fan of democracy -- "should respect the informed, democratic judgment of a society as to the outer parameters of [its] own members' rights"? True libertarians may respect a person's judgment about his preferences, but their libertarianism doesn't lead them to have great respect for a society's judgment about its individual members' rights. Perhaps some such respect is still proper, but it doesn't seem to me to stem from true libertarianism.
7.31.2008 4:33pm
Houston Lawyer:
Yet if I were to take that same art in place it in my office in Houston, my employer would likely face liability for huge sums of money for sexual harrassment. No censorship here though.
7.31.2008 4:38pm
wfjag:

I think this is pretty vulgar stuff, but should clearly be protected against legal punishment. It would be in the U.S., and it ought to be in other democracies; religions and religious figures are proper subjects for debate and commentary, both rational verbal debate and commentary, and the subtle commentary that can be offered by art.


Dear Prof.:

Will you defend me, pro bono, in the hostile work environment suit arising from my Erect Jesus Art? Or, should I stick to Monet Waterlilies to decorate my office?
7.31.2008 4:42pm
Dilan Esper (mail) (www):
I thought the New Testament said that Jesus was "tempted" anyway. It seems to me that "Jesus could have never got an erection" is an expression of modern sexual Puritanism, not anything that comes from Scripture.
7.31.2008 4:43pm
Chris Bell (mail) (www):
I agree.

Are we to assume that Jesus never slept? (Because if he slept he would have to wake up in the morning.)
7.31.2008 4:53pm
Fub:
As quoted from the Daily Mail:
A private prosecution has now been launched .... Legal documents claim that the gallery has both offended public decency and breached Section 5 of the Public Order Act 1986.
I don't know English law, but I thought that Appeal was abolished long ago. Can someone with familiarity shed some light on just what this particular "private prosecution" actually is?
7.31.2008 5:15pm
Johnny44 (mail):
Adam J:

Mari J. Matsuda, Kenneth Lasson and others have for years written extensively in favor of European hate speech laws.
7.31.2008 5:47pm
Eugene Volokh (www):
Wfjag: I'm probably one of the leading First-Amendment-based critics of workplace harassment law (in some of its applications). But while I agree that it does unconstitutionally restrict some speech, including some antireligious speech, I'm pleased to say that it likely wouldn't apply to blasphemous art displayed in an art gallery.
7.31.2008 6:43pm
Haakon:
Let me get this straight, government sponsored museums may not advance religion, but they may mock it?

According to the Arts Council of England website, the BALTIC Centre for Contemporary Art received ₤40.9 million in initial capital and endowment from the U.K. government through lottery revenue, in addition to:

ONE NE Regional Development Agency £4.4 million; European Regional Development Fund £3.5 million; Single Regeneration Budget £750,000; Northern Arts £600,000; private sector £500,000; Gateshead Metropolitan Borough Council £3 million in land and staff time to realize the project.

The first two entities I gather are E.U. related, and the last is obviously the local government, so the gallery is clearly a government funded institution. Setting aside the obvious differences of U.K. law, let us assume that an art gallery in the U.S. was funded by Federal, State, and local money. Such an institution would run afoul of the Establishment Clause if it had hosted an exhibit that was distinctly pro-Christian. Let us say ... a Vatican exhibit. But the same gallery may present an anti-Christian exhibit. Why? It has been awhile since my bar exam, but I seem to recall the Supreme Court writing something to the effect that government “may neither promote nor inhibit religious belief or non-belief.” If a pro-Christian exhibit is deemed to promote Christianity, than wouldn’t an exhibit mocking a Christian icon be inhibiting Christianity? Is the threshold of promoting so much lower than inhibiting? Does someone seeing a statute of Christ in a government gallery conclude that government is endorsing Christianity, but if the statue has a boner, then government is indifferent to the matter?

I may be wrong, but I am unaware of very much anti-Buddhism art, anti-Hinduism art, (or anti-atheism art for that matter to be inclusive of the non-religions). Thus the only two major religions that receive a great deal of artistic critique are Christianity and Islam. Mocking one of the religions may result in its adherents suing for censorship (a tactic of which I am not enamored), or some other political action. Mocking the other religion is much more likely to illicit credible threats by knife, gun, or bomb by followers (or alleged followers) of the latter religion. Thus, by default, Christianity is the only religion fair game for artistic mockery at public support.

Yeah, that's fair.
7.31.2008 7:05pm
Kent G. Budge (www):

...religions and religious figures are proper subjects for debate and commentary, both rational verbal debate and commentary, and the subtle commentary that can be offered by art.


The art exhibit in question does not fit any rational definition of debate or commentary. On the contrary, it's at the level of the jerk who flips me the bird after cutting me off in traffic. It contributes nothing to the public dialogue.

My only reason for extending First Amendment protections to such a thing would be because I distrust the government to make the correct distinctions between real debate and this tripe. I am happy to make that distinction for myself.
7.31.2008 7:44pm
Chris Bell (mail) (www):
Kent,

I find it at least thought-provoking. We regard all these characters as "male" but reject their having any male characteristics.

It leads me to ask you this question. Did Jesus, in his life, ever have an erection? If not, why not?
7.31.2008 8:04pm
Katl L (mail):
When Mtv broadcasted the Sout Park episode about Mohamed cartoon, they censored it. And added an explanatory notes why they respecting Islam did that. Then showed Jesuscristh feccing all over the screen. For sure there are reasons for the envy. of course i agree with you .
7.31.2008 8:13pm
David Warner:
"It leads me to ask you this question. Did Jesus, in his life, ever have an erection?"

Fully human, he surely had morning wood from time to time.

Fully divine, he knew his destiny didn't include grandbabies for Mary, so his thoughts likely were consumed with other matters than getting his schwerve on.

There's actually been some pretty interesting history looking at human perception of the masculinity of Jesus (or lack thereof) in the past 2000 years.

BTW, the real Puritans had plenty of erections, and knew how to use them (look at the birthrates). They just (in large part) waited until marriage to get it on.
7.31.2008 9:07pm
Doc Rampage (mail) (www):
I'm quite frankly baffled at various comments like this:
I thought the New Testament said that Jesus was "tempted" anyway. It seems to me that "Jesus could have never got an erection" is an expression of modern sexual Puritanism, not anything that comes from Scripture.
I don't want to see a publicly-displayed statue of myself sporting an erection, but that doesn't mean I claim never to have had one or that I am merely offended at the suggestion that I have had erections.

I don't see how three different commenters could have been drawn to the same non sequitur.
7.31.2008 9:43pm
Eugene Volokh (www):
Haakon: Lots of government-funded museums display religious paintings. If a museum did so in a context that suggested it was endorsing the religious message of the paintings, that would violate the Establishment Clause; but if it simply presents them as great art -- or new controversial art or some such -- that's fine.
7.31.2008 11:02pm
David Warner:
But doesn't the controversy itself (check the number of comments in the adjoining thread) arise from the very fact that the art conveys a religious message?

Is the fact that the museum cares more about the controversy (and the resulting boost in their business) than the message itself pertinent?

I don't really have a God in this fight, but I don't think the distinction here is as clear as you draw it.
7.31.2008 11:55pm
trad and anon:
I find it at least thought-provoking. We regard all these characters as "male" but reject their having any male characteristics.
Yeah, I'm pretty sure that's the point of the exhibit. I think the point is to get us to think about what it is that's wrong with depicting a Christ with an erection. What is it that makes it offensive? He was male, and subject to temptation, no?
8.1.2008 2:08am
Derek Fincham (mail) (www):
I'm not an expert on private prosecutions, but its a situation where the Crown Prosecution Service declined to bring charges. The right to bring private prosecutions is preserved by Section 6(1) Prosecution of Offences Act, (POA) 1985.

A private prosecutor does not need to ask permission to bring charges, this is a kind of holdover from earlier times when there weren't funded prosecutors and victims would have to bring criminal charges against a criminal defendant. This makes headlines, but will almost certainly be quickly dispatched I'd imagine. If the CPS thinks this is a frivolous or unwarranted prosecution, it can take over and dismiss the proceedings.

Regardless of what you think of the art exhibit, prosecution in this case seems ridiculous, especially given the warning signs.
8.1.2008 3:24am
Haakon:
Prof. Eugene Volokh;

The religiously themed art that I can think of that is commonly displayed in museums are of the variety that are centuries old and have been with the museums for nearly a century or more. I would distinguish these works because they are exhibited for their historical value, no different from leaving a religious monument at a park because it is really old and historical.

The art in question in the story above is displayed for no other reason than the content of the message that it makes. Maybe I am wrong professor, but I cannot think of any “Christian” art that is displayed for the content of its message.
8.1.2008 12:31pm
c.gray (mail):

BTW, the real Puritans had plenty of erections, and knew how to use them (look at the birthrates). They just (in large part) waited until marriage to get it on.


Once upon a time, Puritans were a favorite subject of study for demographers because of their propensity for keeping excellent records coupled with their enormous fertility. They way they mushroomed in size from the 10s of thousands into the millions in just a few generations is kind of interesting.

A long time ago, it was noticed that comparison of birthdates with the marriage dates of parents in pre-colonial New England lead to the unavoidable conclusion that a lot of Puritans married AFTER....not before.
8.1.2008 1:52pm
David Warner:
"A long time ago, it was noticed that comparison of birthdates with the marriage dates of parents in pre-colonial New England lead to the unavoidable conclusion that a lot of Puritans married AFTER....not before."

I'm amazed that they were able to achieve such birthrates with only one child per couple!
8.1.2008 2:46pm