Number 14

FREEDOM OF EXPRESSION IN THE ARTS AND ENTERTAINMENT

In the late 1980s, state prosecutors brought a criminal obscenity charge against the owner of a record store for

selling an album by the rap group, 2 Live Crew. Although this was the first time that obscenity charges had ever

been brought against song lyrics, the 2 Live Crew case focused the nation's attention on an old question: should

the government ever have the authority to dictate to its citizens what they may or may not listen to, read, or

watch?

American society has always been deeply ambivalent about this question. On the one hand, our history is filled

with examples of overt government censorship, from the 1873 Comstock Law to the 1996 Communications

Decency Act. Anthony Comstock, head of the Society for the Suppression of Vice, boasted 194,000 "questionable

pictures" and 134,000 pounds of books of "improper character" were destroyed under the Comstock Law — in the

first year alone. The Communications Decency Act imposed an unconstitutional censorship scheme on the

Internet, accurately described by a federal judge as "the most participatory form of mass speech yet developed."

On the other hand, the commitment to freedom of imagination and expression is deeply embedded in our national

psyche, buttressed by the First Amendment, and supported by a long line of Supreme Court decisions.

DOCUMENT

Freedom of Expression in the Arts and Entertainment Document Date: February 27, 2002

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Provocative and controversial art and in-your-face entertainment put our commitment to free speech to the test.

Why should we oppose censorship when scenes of murder and mayhem dominate the TV screen, when works of art

can be seen as a direct insult to peoples' religious beliefs, and when much sexually explicit material can be seen as

degrading to women? Why not let the majority's morality and taste dictate what others can look at or listen to?

The answer is simple, and timeless: a free society is based on the principle that each and every individual has the

right to decide what art or entertainment he or she wants — or does not want — to receive or create. Once you allow

the government to censor someone else, you cede to it the the power to censor you, or something you like.

Censorship is like poison gas: a powerful weapon that can harm you when the wind shifts.

Freedom of expression for ourselves requires freedom of expression for others. It is at the very heart of our

democracy.

SEXUAL SPEECH

Sex in art and entertainment is the most frequent target of censorship crusades. Many examples come to mind. A

painting of the classical statue of Venus de Milo was removed from a store because the managers of the shopping

mall found its semi-nudity "too shocking." Hundreds of works of literature, from Maya Angelou's I Know Why the

Caged Bird Sings to John Steinbeck's Grapes of Wrath, have been banned from public schools based on their

sexual content.

A museum director was charged with a crime for including sexually explicit photographs by Robert Mapplethorpe

in an art exhibit.

American law is, on the whole, the most speech-protective in the world — but sexual expression is treated as a

second-class citizen. No causal link between exposure to sexually explicit material and anti-social or violent

behavior has ever been scientifically established, in spite of many efforts to do so. Rather, the Supreme Court has

allowed censorship of sexual speech on moral grounds — a remnant of our nation's Puritan heritage.

This does not mean that all sexual expression can be censored, however. Only a narrow range of "obscene"

material can be suppressed; a term like "pornography" has no legal meaning . Nevertheless, even the relatively

narrow obscenity exception serves as a vehicle for abuse by government authorities as well as pressure groups

who want to impose their personal moral views on other people.

IS MEDIA VIOLENCE A THREAT TO SOCIETY?

Today's calls for censorship are not motivated solely by morality and taste, but also by the widespread belief that

exposure to images of violence causes people to act in destructive ways. Pro-censorship forces, including many

politicians, often cite a multitude of "scientific studies" that allegedly prove fictional violence leads to real-life

i l

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violence.

There is, in fact, virtually no evidence that fictional violence causes otherwise stable people to become violent.

And if we suppressed material based on the actions of unstable people, no work of fiction or art would be safe from

censorship. Serial killer Theodore Bundy collected cheerleading magazines. And the work most often cited by

psychopaths as justification for their acts of violence is the Bible.

But what about the rest of us? Does exposure to media violence actually lead to criminal or anti-social conduct by

otherwise stable people, including children, who spend an average of 28 hours watching television each week?

These are important questions. If there really were a clear cause-and-effect relationship between what normal

children see on TV and harmful actions, then limits on such expression might arguably be warranted.

WHAT THE STUDIES SHOW

Studies on the relationship between media violence and real violence are the subject of considerable debate.

Children have been shown TV programs with violent episodes in a laboratory setting and then tested for

"aggressive" behavior. Some of these studies suggest that watching TV violence may temporarily induce "object

aggression" in some children (such as popping balloons or hitting dolls or playing sports more aggressively) but

not actual criminal violence against another person.

CORRELATIONAL STUDIES that seek to explain why some aggressive people have a history of watching a lot of

violent TV suffer from the chicken-and-egg dilemma: does violent TV cause such people to behave aggressively, or

do aggressive people simply prefer more violent entertainment? There is no definitive answer. But all scientists

agree that statistical correlations between two phenomena do not mean that one causes the other.

INTERNATIONAL COMPARISONS are no more helpful. Japanese TV and movies are famous for their extreme,

graphic violence, but Japan has a very low crime rate — much lower than many societies in which television

watching is relatively rare. What the sudies reveal on the issue of fictional violence and real world aggression is —

not much.

The only clear assertion that can be made is that the relationship between art and human behavior is a very

complex one. Violent and sexually explicit art and entertainment have been a staple of human cultures from time

immemorial. Many human behavioralists believe that these themes have a useful and constructive societal role,

serving as a vicarious outlet for individual aggression.

WHAT DOES ARTISTIC FREEDOM INCLUDE?

The Supreme Court has interpreted the First Amendment's protection of artistic expression very broadly. It

extends not only to books, theatrical works and paintings, but also to posters, television, music videos and comic

books — whatever the human creative impulse produces.

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Two fundamental principles come into play whenever a court must decide a case involving freedom of expression.

The first is "content neutrality"– the government cannot limit expression just because any listener, or even the

majority of a community, is offended by its content. In the context of art and entertainment, this means tolerating

some works that we might find offensive, insulting, outrageous — or just plain bad.

The second principle is that expression may be restricted only if it will clearly cause direct and imminent harm to

an important societal interest. The classic example is falsely shouting fire in a crowded theater and causing a

stampede. Even then, the speech may be silenced or punished only if there is no other way to avert the harm.

WHERE DO THE EXPERTS AGREE?

Whatever influence fictional violence has on behavior, most expert believe its effects are marginal compared to

other factors. Even small children know the difference between fiction and reality, and their attitudes and

behavior are shaped more by their life circumstances than by the books they read or the TV they watch. In 1972,

the U.S. Surgeon General's Advisory Committee on Television and Social Behavior released a 200-page report,

"Television and Growing Up: The Impact of Televised Violence," which concluded, "The effect [of television] is

small compared with many other possible causes, such as parental attitudes or knowledge of and experience with

the real violence of our society." Twenty-one years later, the American Psychological Association published its

1993 report, "Violence & Youth," and concluded, "The greatest predictor of future violent behavior is a previous

history of violence." In 1995, the Center for Communication Policy at UCLA, which monitors TV violence, came to

a similar conclusion in its yearly report: "It is known that television does not have a simple, direct stimulus-

response effect on its audiences."

Blaming the media does not get us very far, and, to the extent that diverts the public's attention from the real

causes of violence in society, it may do more harm than good.

WHICH MEDIA VIOLENCE WOULD YOU BAN?

A pro-censorship member of Congress once attacked the following shows for being too violent: The Miracle

Worker, Civil War Journal, Star Trek 9, The Untouchables, and Teenage Mutant Ninja Turtles. What would be left

if all these kinds of programs were purged from the airwaves? Is there good violence and bad violence? If so, who

decides? Sports and the news are at least as violent as fiction, from the fights that erupt during every televised

hockey game, to the videotaped beating of Rodney King by the LA Police Department, shown over and over gain

on prime time TV. If we accept censorship of violence in the media, we will have to censor sports and news

programs.

INDIVIDUAL RIGHTS, INDIVIDUAL DECISIONS

The First Amendment is based upon the belief that in a free and democratic society, individual adults must be free

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to decide for themselves what to read, write, paint, draw, see and hear. If we are disturbed by images of violence or

sex, we can change the channel, turn off the TV, and decline to go to certain movies or museum exhibits.

We can also exercise our own free speech rights by voicing our objections to forms of expression that we don't like.

Justice Louis Brandeis' advice that the remedy for messages we disagree with or dislike in art, entertainment or

politics is "more speech, not enforced silence," is as true today as it was when given in 1927.

Further, we can exercise our prerogative as parents without resorting to censorship. Devices now exist that make

it possible to block access to specific TV programs and internet sites. Periodicals that review books, recordings,

and films can help parents determine what they feel is appropriate for their youngsters. Viewing decisions can,

and should, be made at home, without government interference.

PORNOGRAPHIC! INDECENT! OBSCENE!

Justice John Marshall Harlan's line, "one man's vulgarity is another's lyric," sums up the impossibility of

developing a definition of obscenity that isn't hopelessly vague and subjective. And Justice Potter Stewart's

famous assurance, "I know it when I see it," is of small comfort to artists, writers, movie directors and lyricists

who must navigate the murky waters of obscenity law trying to figure out what police, prosecutors, judges and

juries will think.

The Supreme Court's current definition of constitutionally unprotected Obscenity, first announced in a 1973 case

called Miller v. California, has three requirements. The work must 1) appeal to the average person's prurient

(shameful, morbid) interest in sex; 2) depict sexual conduct in a "patently offensive way" as defined by community

standards; and 3) taken as a whole, lack serious literary, artistic, political, or scientific value.

The Supreme Court has held that Indecent expression — in contrast with "obscenity" — is entitled to some

constitutional protection, but that indecency in some media (broadcasting, cable, and telephone) may be

regulated. In its 1978 decision in Federal Communications Commission v. Pacifica, the Court ruled that the

government could require radio and television stations to air "indecent" material only during those hours when

children would be unlikely listeners or viewers. Broadcast indecency was defined as: "language that describes, in

terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or

excretory activities or organs." This vague concept continues to baffle both the public and the courts.

PORNOGRAPHY is not a legal term at all. Its dictionary definition is "writing or pictures intended to arouse

sexual desire." Pornography comes in as many varieties as the human sexual impulse and is protected by the First

Amendment unless it meets the definition for illegal obscenity.

WHAT IS CENSORSHIP?

Censorship, the suppression of words, images, or ideas that are "offensive," happens whenever some people

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succeed in imposing their personal political or moral values on others. Censorship can be carried out by the

government as well as private pressure groups. Censorship by the government is unconstitutional.

In contrast, when private individuals or groups organize boycotts against stores that sell magazines of which they

disapprove, their actions are protected by the First Amendment, although they can become dangerous in the

extreme. Private pressure groups, not the government, promulgated and enforced the infamous Hollywood

blacklists during the McCarthy period. But these private censorship campaigns are best countered by groups and

individuals speaking out and organizing in defense of the threatened expression.

Free Speech

Related Issues

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GE.13-11844

Human Rights Council Twenty-third session

Agenda item 3 Promotion and protection of all human rights, civil,

political, economic, social and cultural rights,

including the right to development

Report of the Special Rapporteur in the field of cultural rights, Farida Shaheed

The right to freedom of artistic expression and creativity*

Summary

The Special Rapporteur in the field of cultural rights, Ms. Farida Shaheed, submits the present report in accordance with Human Rights Council resolution 19/6.

In this report, the Special Rapporteur addresses the multi-faceted ways in which the right to the freedom indispensable for artistic expression and creativity may be curtailed. She reflects upon the growing worldwide concern that artistic voices have been or are being silenced by various means and in different ways. This report addresses laws and regulations restricting artistic freedoms as well as economic and financial issues significantly impacting on such freedoms. The underlying motivations are most often political, religious, cultural or moral, or lie in economic interests, or are a combination of those.

The Special Rapporteur encourages States to critically review their legislation and practices imposing restrictions on the right to freedom of artistic expression and creativity, taking into consideration their obligations to respect, protect and fulfil this right. The Special Rapporteur notes that more discussion is urgently needed in several areas that she has considered.

* The annexes to the present report are circulated in their languages of submission only.

United Nations A/HRC/23/34

General Assembly Distr.: General 14 March 2013 Original: English

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Contents

Paragraphs Page

I. Introduction ………………………………………………………………………………………………. 1–8 3

II. Legal framework ……………………………………………………………………………………….. 9–39 4

A. Protection in universal, regional and national instruments ……………………….. 9–24 4

B. Limitations to artistic freedoms ……………………………………………………………. 25–39 7

III. Restrictions and obstacles: the need for national assessments ………………………….. 40–84 9

A. Persons impacted ……………………………………………………………………………….. 42–43 9

B. Actors imposing restrictions or creating obstacles…………………………………… 44 10

C. Motivations ……………………………………………………………………………………….. 45–52 10

D. Specific measures and practices impacting on the right to freedom of artistic expression …………………………………………………………………………… 53–84 12

IV. Conclusion and recommendations ………………………………………………………………… 85–91 18

Annexes

I. Responses to the questionnaire on the right to artistic freedom ………………………………………………. 22

II. Experts’ meeting on the right to freedom of artistic expression (Geneva, 4-5 December 2012) – List of experts ……………………………………………………………………………………………………………….. 24

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I. Introduction

1. The present report focuses on the right to the freedom indispensable for artistic expression and creativity, protected under articles 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and 19 of the International Covenant on Civil and Political Rights (ICCPR).

2. Art constitutes an important vehicle for each person, individually and in community with others, as well as groups of people, to develop and express their humanity, worldview and meanings assigned to their existence and development. People in all societies create, make use of, or relate to, artistic expressions and creations.

3. Artists may entertain people, but they also contribute to social debates, sometimes bringing counter-discourses and potential counterweights to existing power centres. The vitality of artistic creativity is necessary for the development of vibrant cultures and the functioning of democratic societies. Artistic expressions and creations are an integral part of cultural life, which entails contesting meanings and revisiting culturally inherited ideas and concepts. The crucial task of implementation of universal human rights norms is to prevent the arbitrary privileging of certain perspectives on account of their traditional authority, institutional or economic power, or demographic supremacy in society. This principle lies at the heart of every issue raised in the debate over the right to freedom of artistic expression and creativity and possible limitations on that right.

4. There is no intention to propose a definition of art, or to suggest that additional rights should be recognized for artists. All persons enjoy the rights to freedom of expression and creativity, to participate in cultural life and to enjoy the arts. Expressions, whether artistic or not, always remain protected under the right to freedom of expression.

5. This report aims to understand the challenges and obstacles that impede the flourishing of artistic creativity, and make specific recommendations to overcome them. The approach adopted is broad. The report addresses forms of expression that carry an aesthetic and/or symbolic dimension, using different media including, but not limited to, painting and drawing, music, songs and dances, poetry and literature, theatre and circus, photography, cinema and video, architecture and sculpture, performances and public art interventions, etc., irrespective of whether their content is sacred or profane, political or apolitical, or whether it addresses social issues or not. It recognizes that artistic activity relies on a large number of actors not reducible to the artist per se, encompassing all those engaged in and contributing to the creation, production, distribution and dissemination of artistic expressions and creations. The Special Rapporteur is convinced that freedom of artistic expression and creativity cannot be dissociated from the right of all persons to enjoy the arts, as in many cases restrictions on artistic freedoms aim at denying people access to specific artworks. Hence, removing creative expressions from public access is a way to restrict artistic freedom. Ironically enough, restrictions are often imposed in the name of the public which, however, is prevented from making its own judgement.

6. Artistic expressions and creations come under particular attack because they can convey specific messages and articulate symbolic values in a powerful way, or may be considered as doing so. Motivations for restrictions stem from political, religious, cultural, moral or economic interests, and disturbing cases of violations are found on all continents.1

1 First World Conference on artistic freedom of expression, Oslo, 25-26 October 2012,

http://artsfreedom.org/?p=4057.

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7. The issue of violations of artistic freedom should be addressed more comprehensively by intergovernmental organizations. Media attention to cases of a few prominent artists tends to eclipse the reality lived by many people engaged in artistic activities around the world. Initiatives such as the establishment of safe cities for artists2 and the enhanced development of networks between artists and human rights defenders3 need to be supported.

8. In order to collect the views of States and other stakeholders, the Special Rapporteur disseminated a questionnaire on the right to artistic freedom. Responses were received from 28 States and 23 other stakeholders (annex I). The Special Rapporteur convened an experts’

meeting on the issue on 4 and 5 December 2012 (annex II), and a public consultation on 6 December 2012. The Special Rapporteur is grateful to all those who contributed.

II. Legal framework

A. Protection in universal, regional and national instruments

1. Universal and regional human rights instruments

9. The most explicit provisions protecting the freedom of artistic expression and creativity are to be found in article 15 (3) of ICESCR, under which States “undertake to respect the freedom indispensable for…creative activity” and in article 19 (2) of ICCPR, which states that the right to freedom of expression includes the freedom to seek, receive and impart information and ideas of all kinds “in the form of art”. Articles 13 and 31 of the Convention on the Rights of the Child, article 13 (1) of the American Convention on Human Rights and article 14 of its Protocol in the area of Economic, Social and Cultural Rights, and article 42 of the Arab Charter for Human Rights also contain such explicit provisions. In addition, under article 27 of the Universal Declaration of Human Rights (UDHR), everyone has the right “to enjoy the arts”.

10. Implicit provisions encompass those guaranteeing the right to freedom of expression or the right to take part in cultural life without specific reference to arts or creative activities. Relevant provisions include article 19 of the UDHR, article 10 of the European Convention for the Safeguard of Human Rights and Fundamental Freedoms, articles 9 and 17 of the African Charter on Human and Peoples’ Rights, and article 32 of the Arab Charter

for Human Rights. The Committee on Economic, Social and Cultural Rights has stressed that the right to take part in cultural life entails rights of participation in, access to, and contribution to cultural life, and encompasses the right of everyone “to seek and develop cultural knowledge and expressions and to share them with others, as well as to act creatively and take part in creative activity.”4

11. Other important provisions linked to artistic freedoms relate to the right to freedom of opinion, and freedom of thought, conscience and religion, since art is also a means of expressing a belief and developing a world vision. For many people, the experience of the aesthetic dimensions of life is intimately connected to the sacred or divine. The right to artistic freedom also relates to (a) the right of peaceful assembly; (b) the right to freedom of association, including the right of artists and creators to form and join trade unions; (c) the

2 See in particular Inter