Article: Toward a protocol of censorship

Toward a protocol of censorship

With exemplary clarity, David Bennett has created a template which accommodates every form of censorship that we could imagine.  His portrait is as bleak as it is accurate because, among the several branches of his structure, there seems to be little scope for mediation between contending claims, typically for free speech on the one hand and community standards on the other.

 
In attempting to contribute hopes of resolution, I would like to argue through two examples of censorship in which I was involved as a commentator in the press.  Through these cases, I want to suggest that a protocol for future censorship should be established, ideally through the Australia Council.
The first example considers Andres Serrano, whose exhibition at the National Gallery of Victoria was closed, against the artist’s will, in 1997.  For brevity’s sake, I am passing over the American experience of censorship caused by religious feeling which David Bennett has already documented.
 
The censorship took place on a number of levels, all centred on one image, the famous Piss Christ, which is a photograph of a crucifix immersed in urine.  The Catholic archbishop Cardinal Pell denounced the work as blasphemous and sought to prevent the work from being exhibited with an application to the Supreme Court of Victoria for an injunction on the grounds that the Piss Christ was a case of blasphemous libel, which contravenes the Summary Offences Act.1  Pell was not successful in this petition but, just as the show went ahead, a patron in the gallery tried to take the picture off the wall and subsequently at least one thug attacked the work with a hammer when on display.  Finally, against the artist’s wishes, the exhibition was closed by the National Gallery, an action which might be described variously as risk management, cold feet or self-censoring, though perhaps not quite prior-censoring, since the work had already confessed itself to the public under the auspices of the gallery.  
 
The reason for axing the exhibition was presented by the gallery at the time as a simple case of protection against further attacks by religious extremists.  The director of the NGV, Timothy Potts, cancelled the show, citing concern for the safety of staff; though enough was said to link the motive to a further concern for a Rembrandt blockbuster that was also on exhibition at the time; and a failure to ensure the safety of the European masters may have jeopardized future loan arrangements.  But as far as the artist was concerned, it was a case of complete censorship by the gallery, as it disabled the link between the work and its public.  The fact that the gallery had previously commended the work to the public only aggravated the sudden loss of availability:  it was now condemned no longer to be seen.
 
Let us suppose that the NGV simply acted out of a safety reflex and closed the exhibition to prevent a spree of vandalism, which is indeed conceivable.  For people of crazy conviction, hitting out at artworks would be altogether in order; so, in spite of the artist’s feeling, it is almost a case of censorship by accident:  no judgement on the work but simply a strategy to safeguard the staff and collection.  But structurally speaking (in terms of the relations of the artwork to its public, as revealed by Pell’s intervention), the issue was to have the work banned according to religious doctrine.  Pell’s case is telling for censorship in general because it is, above all, an expression of hatred.
 
Pell hated Piss Christ because he considered it blasphemous and therefore actionable in legal terms.  He evidently felt that the holy icon of the saviour upon the cross was denigrated, and derision of the sacred is offensive to believers.  At no stage did he feel a need to explain his hatred, other than to say that the work was blasphemous.  Above all, however, he did not feel the need to explain how the work can do anyone any personal harm.  The artist can go to Hell; but who else is hurt?  Naming a victim was never in the discourse.  Censorship is supposedly about ethics, where someone might be held to be disadvantaged or harmed or put at risk on account of someone else’s conduct; but when you drill into the case, it turns out not to be about a person suffering or about a person being put at risk.  Instead, it is about an insult or what is perceived as an insult.  The religion was insulted by the work and this indignation incited Pell to protest against the work with as many resources as he could muster, including the failed attempt to have the work indicted on legal grounds.
 
Given that the legal action was doomed and naive, my intervention in this ugly case was to tackle the hatred on religious grounds, since it seemed to me that Pell had no religious probity in his outrage.2  To damn Serrano’s work as blasphemous unfairly denies the work any dimension of theological good faith.  I pointed out that Christianity is based on mysteries, and care must be taken lest dogma foreclose on their meaning.  One of the key mysteries is the sacrifice of Christ on the cross for redemption.  In this awesome execution, God is humiliated and despised.  The sacrifice of the Son substitutes for all other sacrifices to appease the Father and justify sinners.
 
In the sacrament of holy communion, Christians share in the death of Christ and gain the remission inherent in the sacrifice of God.  When believers take the eucharist each week in church and consume the body and blood of Christ, they share in the carnal unmaking of Jesus.  Provided there is a sense of belief, partaking in the sacrifice is redemptive.  The sincere re-enactment of Christ’s undoing has the power of granting eternal life.
 
In its unpleasant combination of the wrong body fluids and a crucifix, Serrano’s Piss Christ invokes some of the nastier aspects of Christ’s humiliation and suffering, perhaps confounding the crucifixion with a macabre inversion of the sacrament of baptism, a dunking in the least holy of waters.  In the gruesome ordeal of crucifixion, Jesus very likely lost control of his bladder.  For extrapolating such abjection, the photograph is not automatically sacramental.  But it alludes to a circumstance which invites compassion and certainly presents imaginative parallels with the ritual undoing of Christ.  Many interpretations of Piss Christ are possible.  Only one of them is that it is an act of blasphemy.  With the orthodoxy that is the basis of the religion, I can see how any Catholic could consider Serrano’s image heretical; but, as an art critic, I found the charge of blasphemy improbable, especially given the artist’s catholicism.3
 
Serrano did not place Christ in urine but immersed an icon of Christ’s sacrifice, the crucifix, an image long sanctified by tradition and often accorded powers of its own in the minds of the pious.  The crucifix is a traditional visual institution, analogous to any form of authority by which faith is traditionally defined in the church.  When Serrano eccentrically re-stages Christ’s undoing, it is not Christ himself who goes under but his institutionalized representation.
 
With every celebration of the eucharist, Christ figuratively dies again.  In Serrano’s depiction, Christ dies again; only this time it isn’t the Christ of the flesh who dies but the Christ of a cultural institution, the Christ of art history, the authorized commodity, the conventional embodiment of Christ as artwork.  Serrano enacts the humiliation of the icon in a medium appropriately devoid of spirit, urine, insisting on the very corporality that the crucifix lacks.4
 
It is the antithesis of what is supposed to happen in the eucharist.  But that does not mean that the work lacks theological logic.  Instead of the Holy Ghost consecrating the elements to become the body and blood of Christ, the urine submerges the material object (with all its pretensions to divinity) in an abject medium, making it suffer the same kind of sacrifice that Christ endured on the cross.  It is a kind of neo-sacrifice from which the image gains a new immortality.  Perhaps the admixture of semen and blood in the urine alludes to the regenerative properties of the sacrifice.
 
Serrano’s work has to be seen alongside other contemporary artistic confrontations with Christian culture.  In The Age, I gave the example is Yasumasa Morimura’s photograph Playing with Gods, in which the artist represents himself as a child looking at three crucified female dolls in a Renaissance landscape.  At first we are shocked; but the work candidly relates, I imagine, the incomprehension of a Japanese boy upon encountering the bizarre images of torture in which Western spirituality posits its holiest mysteries.  Artists like Serrano and Morimura creatively work with allegory to propose new relationships with the ancient spiritual patrimony and clearly do not deserve the reactive intolerance that Pell exhibited.
All of these arguments, projected in a broadsheet of more than modest circulation in a large Australian town, were not, to the best of my knowledge, answered by any member of the clergy.5  Rather, with an air of valorously protecting the innocent—and at the same time insisting upon his authority—Pell declared that he was responsible for the spiritual welfare of his congregation, against which the artwork was derisive and anathema.  His argument boiled down to the motif that the image was offensive to Christians.  The basis and extent of the offence deserved no attention.  He did not contemplate, for example, how the ghoulish image of a man tortured on a cross—essentially promulgated throughout Christendom—might be considered offensive to any non-Christian who dislikes images of institutional violence and considers them an affront to the dignity of humankind.
 
There are three elements to the justification for banning Serrano’s work which we should summarize.  First, there is no identification of personal disadvantage or personal harm produced by the work.  Second, there is no science, no scholarship, no room to consider an apologia or arguments in favour of the work, even when these arguments are in broad sympathy with the teachings that are also adduced for the anathema.  And finally, the condemnation is based on hatred:  hatred for a putative infidel or something imagined as heretical or blasphemous.  This hatred requires no evidence or argument.  It is a statement of angry spiritual jealousy which has no productive dimension but which seeks only to punish and banish.6
My second case centres on the censorship of child imagery that arose around the Bill Henson affair and the subsequent Papapetrou-Art Monthly controversy where, in both cases, (i) the image of a naked child was published, (ii) the then Prime Minister Kevin Rudd declared vehement disapproval on moral grounds (iii) the art community made the predictable protestations of artistic freedom but also took down certain works and various magazines were destroyed, (iv) a large public reaction arose centred on protecting the rights of children and seeking to ban naked children in art and (v) the image was submitted to the Film and Literature Classification Board who arbitrated in favour of the artists and their publishers.7  Lest the last word be recorded as a win for artistic freedom over child protection, Kevin Rudd instructed the Australia Council to draw up protocols for artists working with children, which have had the effect of stifling most artistic work in the field, as certain sage experts had warned.8
 
Unlike Cardinal Pell, the antagonists at least had a moral claim of some immediacy and substance, namely the protection of children.  It was in fact a flimsy claim, better suited to sound-bytes than sustained argument, but at least an argument was put and serious people got behind it.  The PM had called, from within his deeply held personal beliefs, for the innocence of children to be protected.  Interestingly, in spite of black bars being used in televisual and tabloid reportage, the public reactions were only partly about obscenity; and in the case of Polixeni Papapetrou’s Beatrice Hatch by White Cliffs (which is manifestly innocent), antagonists were inclined to concede that the work is neither pornographic nor illegal but that it is nevertheless improper because it depicts a naked child and imagery of naked children should be banned.  The work is intolerable even though innocent.
 
One type of censorship which Bennett might have added in his synoptic collection is the partial obliteration of works, a kind of sanctimonious iconoclasm, which was applied to Henson’s work as well as Papapetrou’s.  Typically in reporting the scandal, as they saw it, the commercial television networks and tabloids would reproduce the work in question but disfigure the original image with black bars over the eyes or the breasts; in other circumstances, they would use extreme pixilation or blurring so that the image was censored in its details.  When applied to breast or bottom, this intervention presumably conceals any concupiscent element from the gaze of perverts; but when applied to the face, it is to de-identify the model.  While both interventions are designed to produce evidence of the exhibit with moral impunity, the discourse in the latter case is to protect the identity of the girl in question.
 
This entirely hypocritical style of censorship is specifically an offence to the moral rights of the artist, as his or her work is effectively defaced; and the work is remembered among often millions of people in a highly stigmatized form.  Through such bars or pixilation—either for de-identification or to restore propriety and decorum—the work is instantly criminalized.  In the visual language that everyone understands, the image is associated with crooks, paedophiles, felons who are frog-marched into court or gaol.  The work is demonized.  It is a kind of censorship akin to vandalism.
 
My intervention in the debate began by contemplating the value of Henson’s image in its ability to evoke various propositions around the perverse adult attraction to a juvenile body;9 however, I soon realized that facing a charge as pornographer, Henson (or rather his apologists, for the artist remained mute) could not afford to acknowledge any confessional element in his photography, as this would be construed as an alignment with paedophilia.  As a result, I concentrated my efforts on explaining the difference between art and pornography.10
 
However, when the attention turned to my family, I realized that the discourse had changed to an emphasis on the protection of children against exploitation and having their innocence robbed by art.  So, given that Kevin Rudd also expressed his loathing of the image on moral grounds, I began asking the Prime Minister in what way the innocence of a child is compromised by the photograph in question.11  Why would he not say that the innocence of a child was celebrated in the picture?  What is the agency in the image that perpetrates the theft of innocence?  Is it just the fact that a child is naked?  Given that the unselfconsciousness in child-nakedness is actually a sign of children’s innocence, the suggestion that children need their innocence protected by never being seen naked seems illogical.
 
The PM did not answer and the furore of moral majoritarians, which raged for a week around the Papapetrou-Art Monthly controversy, did not produce an argument in answer to the question.  The artworks stood accused of corrupting the innocence of children, legitimizing unhealthy appetites, inciting paedophiles, exploiting children, exposing them to risk of predators, failing to obtain appropriate consent from children or some other authority on their behalf, gazumping the rights of children and wrecking their future with the blight of having their childhood bodies displayed naked ubiquitously and in perpetuity.  The artwork was described as child abuse.
 
As I am the father of the girl in Papapetrou’s picture (as Papapetrou is the mother, and we are family) I felt a need to answer all of the accusations, wherever space allowed, including when this involved some aggressive and possibly fraudulent journalism by Andrew Bolt.12  The easiest argument to despatch was the risk of exposing Olympia to paedophilic attack as a result of publishing her image.  Given that most sexual crimes against children are committed by people known to the family, any added risk to a child in very safe keep is negligible.
 
The most rational of my opponents was Guy Rundle, who argued that naked child images should be banned because a child can never give informed consent and yet a parent cannot presume to pre-empt it, because later in life, the child may regret the decision made on his or her behalf, when his or her privacy has been irreversibly compromised.13  I frequently conceded (as on BBC World Service) that this is a possibility:  Olympia could one day reproach us for the picture.  But given that our children adore such artworks, it seems less likely than that Olympia would be proud of the picture; and that too follows the same logic of pre-empting what the child may feel in 20 years’ time, like most decisions that we take on our children’s behalf which inevitably affect their future.
 
Most, if not all, of the questions could be answered with reference to risk.14  The one defence that I never used was that of artistic freedom.  It strikes me that this is not so much politically unwinnable—because history has shown that the argument frequently comes off victorious—but that it is philosophically weak, lazy and not particularly ethical.15  I am suspicious of arguments that say that the aesthetic should trump the moral, because we can all imagine where that could end up.  Apparently Bill Henson is still using this argument to defend his choices.  In a recent announcement for his first public appearance since the affair, the synopsis declares:  ‘We should be wary of governments and interest groups who try to impose restrictions on the free exercise of the artistic imagination. Our zeal to protect innocence should not come at the cost of violating artistic experience.’
 
The dichotomy is catastrophic:  protecting innocence versus violating artistic experience!16  Which will you choose?  Of course it depends on the definition of terms; but, prima facie, I know that I would much rather stand by and watch someone violate artistic experience than stand by and watch someone violate a child.  Surely we have to put protecting innocence first, if that is our only other option.  The idea that artistic experience might have some priority over protecting innocence is frightening, an alarming ethical counterpart to profanity.  I wish Henson—who immediately after says that the basis of art is moral—had rather said:  artists agree with protecting the innocence of children and that is why we make art that dignifies and explores this innocence in all its conditions and fantasies, which include the innocent erotic dimensions of childhood, as we have recognized since Freud.  This statement, it seems, might suit his imagery.
Gratefully, Henson at least seems to have adopted the theme of risk in his lecture at Federation Square, which is a much sturdier defence.  During the debates of 2008, I pointed out that the risk of children sustaining psychological or physical harm are negligible compared to the risks of permanent disability caused by sport and other parentally directed ambitions.  I argued that it is hypocritical to denounce naked children in art on the sanctimonious basis that the models are exposed to risk and then at the same time condone contact sport, as if a symbol of healthy childhood, when risks of paraplegia or other forms of permanent damage are constant and cannot be eliminated.
 
Though fitting into a different part of David Bennett’s excellent taxonomy, all the elements of the Serrano censorship are rehearsed in the naked child controversy.  First, just like Pell, the PM and his moral acolytes could not identify disadvantage or harm produced by the work; and indeed Rudd was even challenged to produce this evidence by our then eleven-year old daughter, Olympia, which likewise drew no response, even though her intervention made international headlines (to the effect that naked girl berates Australian Prime Minister for the narrowness of his mind).  Second, no science or scholarship was produced; and no one had time to consider an apologia or arguments in favour of the work, even when these arguments were in broad sympathy with the very tenets of protecting the innocence of children.  And finally, just as with Serrano, the condemnation was based on hatred.  This was made explicit from the outset, when the Prime Minister declared of the beautiful Papapetrou image:  ‘I can’t stand that kind of thing’, just as he said that the Henson was ‘absolutely revolting’.   It is a telling turn of phrase:  I can’t stand it.  That means I hate it.  And as we know, this hatred required no evidence or argument to spread like a contagion, a thematic epidemic that multiplies beyond its propositions to become what Anna Munster identifies as a meme.17  It too proceeded from angry spiritual anal jealousy of no productive dimension but which sought only to banish naked children from art, which is more or less what the Australia Council Protocols have achieved.
 
So now I want to call upon the Australia Council to assume the leadership that it lacked during the Rudd years.  The Australia Council has real work to do, not so much to redeem its former artistically mortifying position but to lift the debate over censorship to a higher level.  In particular, our artistically traumatized country can no longer morally afford to leave censorship at the miserable point of balance that Bennett correctly identifies:  a kind of agitated arm-wrestle between artistic free speech and reactive community standards of decency.  Both are outmoded strategies in resolving cultural sensitivities and both fail the critical element which has been absent in Australian debate:  reason, evidence, science and logical argument.
 
The Australia Council could make a most valuable contribution if it could establish guidelines on censorship; and I would suggest the following principles.  All arguments for censorship must include
 
1. a statement identifying the persons who need to be protected 2.
 
2. an argued statement identifying the risks to such persons, remembering that risk is defined, as in all OHS cultures, as the severity of impact multiplied by the likelihood of the event occurring 
 
3. an evidential analysis comparing the risks thus identified with other risks in the community which are conventionally tolerated and viewed as responsible
 
4. a faithful acknowledgement of the people who would be disadvantaged or aggrieved by the censorship going ahead and
 
5. compelling arguments intended to refute their rights to produce and enjoy the work in question.
 
Until we have such a template, we will have nothing but chaos,18 in which largely empty claims for artistic merit attempt to overcome arbitrary and unscientific claims for community standards.
 
It is not enough to invoke community standards by asserting that a given community is affronted by a work and that the work therefore stands condemned by community standards.  Giving offence is neither illegal nor, in any absolute sense, immoral.19  Any leader of a large group of people, like George Pell, undoubtedly has the authority to say that thousands of people are offended by some work (even if I think that they should not be).  But that does not constitute a legitimate case for censorship.  Offending millions of people is legally no worse than offending one person:  it is just that the offensive content is shared among many, which indeed could even lessen the moral impact on any given individual by virtue of the consolations available within a homogeneous community.  An insult does not in itself constitute an argument for censorship.  We are constantly facing insults which are sometimes horrible; but a part of maturity is to cope with such derogation, perhaps by expressing our feelings in protest or perhaps by cultivating silent reciprocal contempt; because, as grown-ups we have the dialectical powers of language to offset and dismiss the arrogance or common wrong-headedness that is likely to come our way.  We have laws to prevent vilification, which is the malicious verbal demotion of a person or community in the esteem of others, as vilification—like slander and libel—can be seen as wilfully harmful, leading to persecution and disadvantage.20  But we correctly have no laws against insults, because insults are experienced subjectively as acute by the aggrieved and yet accurate by the insensitive person who launches them.  ‘My good man, you are getting frightfully tubby; perhaps you eat too much fat in your diet.’  ‘Sorry, but to play music like that you would have to be tone deaf.’  These insults are ugly but they fall outside the bounds of regulation; and to introduce legislation to curb such noise is to infantilize the community.  The issue in all cases is an estimation of the harm that the words cause; and without possessing evidence of harm, the insult is trivial as grounds for censorship.
 
One argument which should be regarded as inadmissible is threat.  In various sectarian contexts, one hears menacing ideas along the following lines.  If my community continues to be offended by such-and-such a work, I cannot guarantee that certain members will not express their feelings physically.  Exhibiting or publishing this flagrantly provocative work is a recipe for inciting violence; and we must at all costs protect the social cohesion that Australians love and expect by censoring the provocation.  This line of argument is itself outrageous and as much a threat to social cohesion as any work that it seeks to ban.
Protocols for censorship should specifically exclude from acceptability any tincture of bullying.  While there is political strength in numbers, there is no moral force in them; and claiming numbers has no power to augment the sense of an argument.  There is a common misconception about the rights of a large number of people, namely that the preferences of the majority must prevail over the rights of a minority.  Gratefully, the law is generally conceived to prevent exactly that motif; and we must follow the same rules with censorship.
Unfortunately, censorship is indeed often inspired by the fear that a large number of people is offended; and the reason for this conservative reflex is that censorship is often imposed reactively by authorities which have a greater interest in representing their local constituencies than the natural rights which all individuals ought to share on the planet.  An example is a municipal council closing an exhibition because it fears the disfavour of a disenfranchised part of the electorate.  So the council closes the exhibition on the basis that rate-payers’ money should not be used to anger the community.  Again, unless personal harm can be demonstrably added to the case, the argument on the basis of numbers does not build a compelling moral or legal case for censorship.  Even though political motives will continue to flourish in governmental settings, it is important for our national cultural authorities to intercede with the provision of protocols which moderate such political reflexes and demand better reasoning.  Governments may still ignore them or overrule the need to follow due process; but at least guidance has been offered where at present we have nothing but the chaos of defining community standards by the loudness of protestations, a form of pressure which shades off into bullying.
 
Fears of confronting great confusion in public policy draw me to the final conundrum in Bennett’s representation of censorship in Australia, which in many ways is the most forbidding:  the state law in New South Wales which removes the claim of artistic merit as a defence against charges of pornography.
At first, I was disheartened by this development, as I have argued that a distinction between art and pornography can legitimately be made and is perilously ignored.21  I proposed that while there may be large areas of overlap, the two intentions are distinct and have distinct visual powers.  In the matter of naked children, there is great risk that art and pornography are automatically collapsed.  However, while there may be overlap, there can also be a distinction; otherwise, we would have to consider all studies of the nude of either sex and of any age pornography as well as art, including the Apollo Belvedere or the Venus de Milo.  It would only take some sanctimonious soul in NSW to tell a court that the Donatello’s David is pornography and nobody could appeal along the lines that it is a great artistic masterpiece rather than pornography.  The owners of the Bargello in Florence would have a tough time convincing the NSW court, because it is illegitimate to claim that its artistic merit excuses it from the charge of pornography.  The argument is subtle and I feared that the NSW legislation would cause this fruitful distinction to remain forever closed to curiosity.
Given that intellectual capital is so fragile in this country and is as much subject to corrosion as growth, it seemed to me unfortunate that there is no longer any practical incentive to pursue the important dichotomy between art and pornography.  On reflection, however, it is not the worst outcome.  The NSW legislation denies that artistic merit can be used as a defence against an accusation of child pornography; but perhaps it is a good thing if artists do not argue along these lines because, irrespective of the distinction between art and pornography being real, the dependence upon artistic merit is spurious.
 
The issue has never been artistic merit.  The issue concerns artistic intention.  Merit should not come into it, since we will always be divided as to which works have what degree of artistic merit.  Most importantly, however, if a work is indeed malevolent in its intention, artistic merit compensates for nothing.  It may be technically very refined and propose ingenious fantasies with rich subject matter and, in at least those senses, it could be considered to have high artistic merit.  But that does not mean that it is not responsible to its intentions; and if these involve purveying disgusting abuse, we are justified in not excusing them by artistic merit.  If a symbolic portrait of Hitler trouncing the Jews were beautifully painted, or if a poem arguing for the inferiority of women or deriding Africans were very well written, we would not spring to its defence just because it has artistic merit.  Within a statement of fascism or bigotry, artistic merit will have no redemptive appeal.  It is ethically inadmissible to suggest that the aesthetic should trump the moral, because otherwise we would vouchsafe anything beautiful doing any amount of harm.  (Naturally this depends on our definition of beauty—because some might argue that the morally ugly can never be aesthetically beautiful—and, up to a point, it is nothing but lis verborum, a war of words.)
 
Though the NSW legislation discourages curiosity for an important article of aesthetic process, it is better if arts advocates drop their case that says:  because a work is beautiful or mystical or moving, it cannot be something quite contrary when viewed only as subject matter.  In the law, intention is always a critical factor; and however difficult it may be to establish artistic intention, it is much safer and more reliable than merit.
On both sides of a censorship debate, we have to know the stakes.  They must be about the personal harm that is done and the personal good that is done.  These elements have to be made available to analysis and reason and not declaimed in a kangaroo court as at present, where the loudest sound bytes drown out the others in a process known as community standards.  It is a non-sensical anachronistic concept which has no authority to arbitrate anything in art or morality.

 
 
published in Banned books in Australia, third edition, Cussonia Press, University of Melbourne, Melbourne 2011, pp. 38–53
first presented at Banned books in Australia, A Baillieu Library Exhibition, University of Melbourne, 7 June – 27 August 2010

1 17(1)(b) of the Summary Offences Act 1966 (Vic).  Justice Harper of the Supreme Court refused to grant the injunction.  In explaining this refusal in Pell v Council of Trustees of the National Gallery of Victoria, Harper pointedly doubted the relevance of ‘blasphemous libel’ in a multicultural society.   He considered that this archaic legislation is anachronistic and reflects the age when state and church were linked.  This institutional collusion is prohibited by section 116 of the Federal Constitution.

2 ‘Blasphemy or just bad taste, it’s all in the eye of the beholder’, The Age, 10 October 1997, p. A19.  Parts of the following paragraphs are grafted from this brief Opinion piece.

3 Other critics of sympathetic persuasion came to this judgement, e.g. Sister Wendy Beckett, the well-known televisual Catholic nun, who declared in a television interview with Bill Moyers that she considered the work not to be blasphemous but rather a statement on ‘what we have done to Christ’.  Eleanor Heartney, ‘A consecrated critic — profile of popular television art critic Sister Wendy Beckett’, Art in America, July 1998.  Sighted May 2007.

4 These themes are considered at greater length in my book on art and sacrament, The Spirit of Secular Art: a History of the Sacramental Roots of Contemporary Artistic Values, Monash University ePress, Melbourne 2007.

5 Considerably later, Michael Casey, Anthony Fisher OP and Hayden Ramsay replied to Damien Casey, ‘Sacrifice, Piss Christ, and liberal excess’, Law, Text, Culture, June 2000, which was sighted still in August 2010 at http://dlibrary.acu.edu.au/staffhome/dacasey/Serrano.htm.  My text was not mentioned.

6 For an analysis of jealousy in cultural matters, see the introductory chapter to my book The jealousy of ideas:  research methods in the creative arts, Goldsmiths, University of London, 2009, at http://www.writing-pad.ac.uk/index.php?path=photos/20_Resources/08_The%20Jealousy%20of%20Ideas

7 Both episodes were matters of great anxiety, with much propagation of fear, whose economy is central to censorship.  See my ‘Naked fear: a new chapter in the history of anxiety’, antiTHESIS, vol. 20, 2010, pp. 73–90

8 The Australia Council sought feedback on its draft protocols and was warned of the withering effect of its ideas in submissions by writers like Stephanie Britton.  No notice was taken.  On the Protocols, see my ‘No sense treating children who pose for artists as employees’, The Age, 26 February 2010.

9 ‘Creepy?  Perhaps, but it’s not porn’ (Henson opinion), The Age, 24 May 2008, p. 9

10 ‘Saving Art’s Face’, Arena Magazine, no. 95, June-July 2008, pp. 45–46

11 ‘Critics opt for slogans not evidence’ (opinion on Papapetrou/Art Monthly controversy), The Age, 8 July 2008, p. 2

12 I replied to an article of Andrew Bolt in the Herald-Sun on 9 July, via his blog (http://blogs.news.com.au/heraldsun/andrewbolt/index.php/heraldsun/comments/column_lending_a_naked_daughter_for_a_stunt/P20), accessed August 2010; however, the following day, Bolt produced a further article in the Herald-Sun, which caused him to describe scurrilously a picture which I do not believe he ever saw.  So I posted a further reply to Bolt’s blog on 10 July, exposing not only his bad method but inquiring into whether the faults are tendentious or fraudulent.  This essay is no longer to be found on Bolt’s blog.  I cannot say when it was removed but 160 other posts remain.

13 See my reply: ‘Paternalism revisited:  Robert Nelson responds to Guy Rundle’, Arena Magazine, no. 97, October–November 2008, pp. 47–48

14 The arguments are considered in ‘A personal political analysis of the Papapetrou controversy’ at http://www.polixenipapapetrou.net/text.php?txt=RN_analysis_art_monthly_controversy&cat=On%20Polixeni%20Papapetrou, last visited August 2010

15 The efficacy of this argument is reinforced by legislation, as censorship can be seen as a human rights violation.  The Charter of Human Rights and Responsibilities 2006 requires public authorities in Victoria to protect, promote, respect and fulfil some 20 listed human rights.  Similar provisions apply under an Australian Capital Territory law.  Notable for any discussion of censorship in Victoria is Section 15,  Freedom of Expression (see: http://www.austlii.edu.au/au/legis/vic/consol_act/cohrara2006433/ ).  Also, S.15(3) talks about the 'special duties and responsibilities' that flow to Victorians from their right to freedom of expression.  It is likely this right includes the right to hear other people’s expression.  Other sections of the CHR relevant to a discussion of censorship include S.14 Freedom of Thought, Conscience and Belief, S.18 Taking Part in Public Life and S.19 Cultural Rights. I am grateful to Chris Gill, who was a participant in the August public forum at the Bailieu Library, University of Melbourne, for this footnote.

16 as was immediately observed in numerous blogs and the mainstream press, e.g. Michael Coulter, ‘Henson leaves moral issues of his art unexposed’, Opinion, The Sunday Age, 8 August 2010, p. 19.  Coulter also criticizes Henson’s conception of art as ‘a force of nature that’s beyond anyone’s control’ and other romantic embarrassments, which he aligns with arrogance and contempt.

17 Anna Munster, Continuum, vol. 23, Issue 1, February 2009, pp. 3–12, available online at http://www.informaworld.com.ezp.lib.unimelb.edu.au/smpp/section?content=a908315485&fulltext=713240928  (accessed 3 March 2009)

18 The protocols would greatly enhance the current legislative architecture:  S.7 of The Charter of Human Rights and Responsibilities 2006 outlines those circumstances in which public authorities, including government, may lawfully limit any right, including the S.15 right to Freedom of Expression.  In effect, S.7 means that a limitation to the right to freedom of expression (e.g. censorship) may be lawful if it can be shown to be:  Reasonable – sensible, based on consultation and the circumstances; Necessary – having a sufficiently important purpose; Justified – evidence-based and relevant to achieving its purpose; Proportionate – the least restrictive means to achieve the purpose. I am grateful to Chris Gill, who was a participant in the August public forum at the Bailieu Library, University of Melbourne, for this footnote.

19 In some circumstances, offending someone is against the law, as with sexual harassment.  At work, in education, the provision of goods and services and in some other areas of public life (listed - for Victoria see: http://www.austlii.edu.au/au/legis/vic/consol_act/eoa1995250/index.html#s85 ), it may be against state and/or Commonwealth law to engage in unwelcome conduct of a sexual nature that a reasonable person would anticipate to offend, humiliate or intimidate another.  Such conduct allows the victim to demand that the behaviour stop, that management take action, or to complain to an anti-discrimination board or commission in their state or territory, or to the Australian Human Rights Commission.  I am grateful to Chris Gill, who was a participant in the August public forum at the Bailieu Library, University of Melbourne, for this footnote.

20 The Victorian Racial and Religious Tolerance Act 2001 (RRTA) makes it unlawful (a complaint can be made to the Commission) and in some instances against the criminal law (meaning that the Police can become involved) to commit ‘a public act which incites hatred towards, serious contempt for, or severe ridicule of, a person or group on the grounds of race or religion.’  There has been much written about this law since it was passed in Victoria, especially after the case brought against the Catch The Fire Ministries. The Herald Sun and The Australian have taken a particular interest in it, as they have to human rights more generally.  See http://www.austlii.edu.au/cgi-bin/sinosrch.cgi?method=boolean&query=racial+and+religious+tolerance&meta=%2Fau&mask_path=.  Again, I am grateful to Chris Gill, who was a participant in the August public forum at the Bailieu Library, University of Melbourne, for this footnote.

21 Robert Nelson, ‘Saving Art’s Face’, Arena Magazine, no. 95, June-July 2008, pp. 45–46.

By Robert Nelson

Robert Nelson

Associate Professor Robert Nelson is Associate Director, Student Experience at Monash University and Art Critic for The Age. Robert has recently published a book on painting, The visual language of painting: an aesthetic analysis of representational technique, Australian Scholarly Publishing, Melbourne 2010 (Some of Robert's other books are available freely online