Recommended Citation: Malița, Liviu. “Arguing for Art, Debating Censorship.” Metacritic Journal for Comparative Studies and Theory 5.1 (2019): https://doi.org/10.24193/mjcst.2019.7.01
While the debate about the legitimacy of censorship or about its social and moral usefulness is rather old, decisive conclusions are yet to be reached. Art is a sensitive area of inquiry since there is a belief that only art should be exempted from censorship. It is necessary to distinguish between freedom of expression per se (which is a guaranteed fundamental right) and artistic freedom. Regarding the former, limitations are necessary to protect the dignity of the person and his fundamental rights,1 as well as to combat attitudes that are perceived as forms of “hate speech” (Frederick 86), but they may also be essential for ensuring fair competition rights. However, these limitations (which have their justification in the field of existence) “cannot be extrapolated along with the same prohibitions and the same penalties to works of art” (Huberman, qtd. in Burnet 44).
The very fictional character of art cancels out this transfer, by way of transfiguration. In an interview given during the “One World Romania” International Human Rights Documentary Film Festival (2012), Alexei Plutser-Sarno (a member of the Russian Voina group, an “anarchist punk-rock artistic movement”) stated that “between art and challenge, between art and crime, there are neither borders, nor any other types of interaction. They are situated in different planes, in worlds that never intersect.”2 The idea that censorship cannot be applied to art belongs to a tradition that goes back to Aristotle (Sapiro 108). The work of art has a different ontological classification than the real fact; therefore, a different legal classification is required. Art is fictional, so it is “beyond good and evil.” Artworks must be removed from the jurisdiction of law courts because they are legally unclassifiable. Even among those who concede that art must be subjected to some form of control there are many who assert that literary works, for example, should not be treated with the same severity as political, moral or scientific writings.
Art and Justice
Several arguments converge to show that justice is not qualified to judge artistic offences.
1.1. The Conservatism of Justice
The myopia of justice is explained by the conservative principle of law, in comparison with the innovative dimension of art. It is difficult, if not impossible (given the inertia of the system and the slow pace of the legal apparatus) for the dynamics of artistic transformations to be promptly reflected in the legislation. The legal act therefore tends to be lagging behind artistic phenomena. Incriminated works are often judged according to definitions belonging to an earlier stage of art.3 Such definitions are ineffective for assessing contemporary productions, which are always the subject of dispute. Often, in the case of inaugural works, what irritates and may cause rejection is the violation of artistic conventions rather than the transgression of moral norms. The risk to which a judge may be exposed is to make the unfortunate mistake of confusing morally offensive productions with artistic works that are deemed to be outrageous on account of their transgression against the frameworks of perception and the rules of artistic representation (Sapiro 295). The lack of synchronization (between the body of laws and the legal doctrine, on the one hand, and the social and artistic mutations of the present, on the other) threatens to delegitimize punishment, taking into account the fact that, in time, the boundaries of permissiveness have kept being pushed. The facts reveal the conservative character of censorship as opposed to the experimental character of contemporary art. The purpose of censorship is to strengthen cultural taboos (Willis 58, qtd. in Jacobsen 2) and to preserve traditional artistic values by discrediting modernist trends. Ultimately, under the utopian pretext of preserving morality intact, censorship leads, in fact, to the asphyxiation of the cultural space. Judging works of art and condemning the artists may paradoxically entail a situation where moral caveats become aesthetic shackles that block creation.
2. The judge’s artistic incompetence
A judge lacks the necessary authority to evaluate art. He does not condemn, as it is claimed, professions of immoral faith, but opts between various opposing morals (e.g. surrealist morality vs. bourgeois morality); because of his insufficient artistic training, the judge risks levelling artworks down when assessing them (Brochier 67). Legal conservatism often goes hand in hand with artistic mediocrity.
The “symbolically unlimited” nature of the work of art (to use a phrase belonging to Tudor Vianu) complicates matters. Thus, if we take the case of literature, the accusations that have been levelled against it have sparked a public debate on the interpretation of texts. Traditionally, justice has chosen (when deemed necessary) to condemn literary works for content-related issues. Gradually, the instability of meaning and the fundamental ambiguity of literary texts led, however, to querying not only the content, but also the form of discourse, the literary genre, the style and those components considered to epitomize the artistic personality of writers and their authorial intentions.4 At the same time, the judges’ literary incompetence became obvious (compromising the authority of their decisions), and their opinions came to be seen as the opinions of non-experts on aesthetic matters.
Surely, a judge can appeal to the institution of expert witnesses (artists, art critics). However, this procedure poses a twofold inconvenience. The first (perfectible) consists in the manner of making the selection. The second (fundamental) refers to the fact that proper expertise is difficult to obtain. It is usually the case that artistically innovative works end up in court, works that are contested in their own field of origin, since it takes time for their innovative contribution to be comprehended and for such works to forge a pathway in their own (artistic) domain. As a result, expert witnesses can contradict one another, depending on the artistic ideology they uphold.5
There are, of course, exceptions which may prove the aesthetic acuity of judges. A possible example is provided by the way in which a complaint against the poster of the film Amen by Costa-Gavras (2002) was settled in court. The poster is “a parodic composition, depicting a red cross that is highlighted against a dark background, extending along three sides in the shape of a hooked cross.” “Thanks to a skilful graphic game,” the poster denounced the Vatican’s role in the Second World War, “uniting the Christian cross and the hooked cross into one symbol.” Catholic bishops protested against the “unacceptable assimilation” and intolerable identification of the symbol of Christian faith with Nazi barbarity. The judge, however, did not settle the case in the bishops’ favour, considering that the author (Oliviero Toscani) could not be penalized. The president of the court rejected this “close reading” and deciphered in the incriminated image “the will to break down the Nazi cross, a symbol of totalitarianism, and to replant in the ground, as if to rehumanize it, the cross that every community continues to bear.” In the reasoning, the judge argued that “the swastika is incomplete, one arm being slanted downwards...” (Saint-Martin 66-69). Even multiplied, however, such examples do not constitute sufficient legal justification. On the contrary, they attest to the fact that it is always likely that the decision to ban a work of art may reflect the judge’s subjective preferences and aversions and not the intersubjective views of public opinion. The exceptions actually shed light on the kind of social role that the judge performs as a defender of the status quo, which is constantly contested by artists.
It has therefore been concluded that it would be ridiculous for the aesthetic value of an artwork to be discussed in court.6 Artists themselves have been concerned to delegitimize such an approach. As for the justice system, it has compromised itself by reaching questionable decisions and by condemning several great artists throughout history.
3. The burden of proof concerning the harmfulness of art
It is, in fact, really difficult to produce the legal evidence that will prove (alleged) artistic offences, which are converted, by association, into non-artistic offences, as a rule. André Glucksmann believes that, as far as art is concerned, justice has failed to develop a “code of social threats” (Glucksmann 80). If it can be said to even exist, the harmful content of art is difficult to prove, so the driving force of censorship is not a certainty, but an anxiety, whose cultural perception is the “fear of representations” (Goady, qtd. in Glucksmann 76). The procedure, therefore, is exactly the opposite: first it resorts to exclusion (in order to protect) and only then is the “dangerous” nature of the censored content invoked, a content that is not so much the cause of the interdiction as its consequence. The very exclusion operated by censorship grants a work of art this “dangerous” character (sometimes abusively). The most common accusations against art are, therefore, those of immorality (pornography, obscenity), of “attacks against good morals” or of inciting violence, hatred, and racism. All three categories present controversial aspects.
(i) Art and pornography
The encounter between art and pornography is epistemically explosive (as it takes place between two “open” concepts, each likely to generate controversy) and is considered to be, according to legal norms, morally culpable. The question is whether it is rigorously possible to avoid this encounter. By systematizing the huge bibliography on this subject, Hans Maes inventories the main opinions expressed on this topic. The most prominent, first voiced by Peter Webb (1975) and frequently resumed afterwards, states that the dividing line between art and pornography is clear to the point of incompatibility.7 There are also some classic ways to mark that difference.8 However, the problem is that there are some generic differences which are difficult to prove in practice, where the situation is ambivalent. In any case, Maes contends, these dichotomies operated between some prototypical examples “will not serve to justify the claim that art and pornography are mutually exclusive.” A second sample, opposed to the first one, consists of theories which, taking note of the frequent violations of territory from both sides, argue either that pornography should be dissociated from obscenity, suggesting that only obscenity is incompatible with art (Huer; Mey; Graham),9 or that pornography has an aesthetic dimension.10 In any case, the differences are often minimal (quasi-imperceptible), generating errors. In the fine arts or in theatre and film, regrettable confusion has often been made between artistic nudity and pornography, for example. The works of writers like Flaubert, Byron or Baudelaire were condemned, in their own time, because of a blindness defined as ridiculous by posterity. Finally, to eliminate conceptual obscurity, it is recommended that one should consistently use the term “erotic” to denote the presence of sexual/sensual elements that are artistically transfigured in works of art.
Avoiding to let myself enmeshed in ever more refined conceptual distinctions, I will resume the conclusion reached by Maes, according to whom the best argument that the notion of “pornographic art” is not oxymoronic, but designates a legitimate artistic category is the very existence of pornographic artworks. His examples include Pauline Réage’s novel Histoire d’O, Nagisa Ôshima‘s film In the Realm of the Senses, Kitagawa Utamaro’s woodblock print Woman with man with black cloth and food service, or Mapplethorpe’s photograph Jim and Tom, Sausalito.11 If we continue to trace the line of demarcation between art and pornography with the firmness demanded by some theorists, many of the works of unquestionable artistic merit, Maes concludes, are on the “wrong” side (Maes, Drawing 4). Despite this argument, however, the suspicion remains that a work can be genuine both as art and as pornography,12 thus rendering the whole process as a circular one.
The sheer scale of theoretical debates on this issue reveals the difficulties of deciding in court on the pornographic/obscene character of a work and of providing a credible reasoning for the penalties applied. Achieving a hypothetical consensus does not close the file. There are radical interrogations of the socially dangerous and morally degrading nature of pornography13 and of the legitimacy of the government to ban its citizens from publishing and/or watching it.14 The dispute is waged between the right to freedom of expression and, respectively, the right to dignity and identity (self-image). The former is a fundamental right and includes (in the context) the freedom of autonomous beings to pursue their own conception of development and to expand/diversify, through experimentation, their means of sexual gratification.15 However, to the extent that pornography is considered harmful in emotional and relational terms, offensive and corrupting from a moral point of view, inducing libertinism, proposing role models that might deteriorate the self-image of people as social beings and partaking of “hate speech,” the right to free expression must be, in its case, (severely) restricted.
Even though, in life, pornography can be condemned (at least on account that it tends to corrode the organizational structures of society, attacking the core of the family and, by default, that of social cohesion), in art its harmful effect is, for many, unlikely. Symbolic transfiguration cancels it out.
In the case of literature, the situation is further complicated. Writings with explicit pornographic content (such as Sade’s novels) have a distinct philosophical character, which should protect them against censorship. They “not so much excite readers, as they fascinate intellectuals; hence, their weak erotic character” (Baudrillard 45). In addition, the accumulating effect of (perverse) sex sequences leads to a voidance of desire. The internal analysis of a literary work is not, however, necessarily conclusive. Often insufficient, it must be corroborated with contextualization.16 In fact, contextualism is inherent to late modern aesthetics, according to which artistic status is not intrinsic, but relational and extrinsic to the work (see ready-made artefacts).
Regardless of the credibility of such arguments, the solution is not, one might think, that of banning these works. Such a measure can only limit access to those books, which will continue to circulate in clandestine forms, producing, sometimes, not only a more powerful impact (through the secondary effect of reverse advertisement), but also proposing a distorted reading of those texts, in the sense of strengthening their “pornographic” character. The hypothetical argument is that reading selectively (in the case of adolescents, for example) certain “debauched” fragments increases, by decontextualization, the degree of perversity of those scenes, if they are read exclusively through that lens. No matter how raw and, apparently, not transfigured artistically, such blameable fragments present in literary works have an altogether different significance by the very fact that they are not confined to themselves, but belong to a parabolic whole, which transcends them. Only within the context as a whole do they acquire aesthetic value and do they reveal their problematizing, ironic, visionary, etc. dimensions. The part is resignified because it belongs to a whole that is so radically different from it. Thus, by being embedded in a broader and infinitely more complex narrative structure, these fragments are absolved of their degrading status, no matter how crude the language might be. They benefit from a “system effect”. In other words, a great writer can afford the coarseness of a pornographer without becoming one himself.
(ii) The offence and the encroachment on morality
Indecency is an obscure offence17 (the law does not define it precisely), undermined by a theoretical insufficiency.18 It remains, however, the most common wrongdoing in the name of which artists and journalists have been prosecuted, despite the fact that the fictional status of art should absolve one from such liability. True art cannot corrupt: it has a rectifying rather than a corrupting role. Naturally, disputes also persist on this topic.19
(iii) Incitement to violence
The relationship between art and violence is so old that it seems inextricable. The film industry has enhanced it exponentially. The aestheticization of violence becomes an actionable matter when there is a suspicion that the work of art incites to hatred and could lead to acts of violence. In this case, however, it cannot be demonstrated (as the law claims) that there is a direct causation between reading a book or watching a violent film and committing criminal acts.20 The work of art is an inextricable mixture of reality and illusion, which we cannot translate tale quale into reality. The transition to action negates the artistic status of the work: art, Kenneth Clark claims, loses its true character when it incites to action (Clark, qtd. in Maes). It remains a subject of controversy whether art really augments violence (fuelling or expanding it) or whether it amounts (in Aristotelian terms) to a form of purgation, to an imaginary escape valve, which allows the release of the aggressive potential through a phantasmatic experience.
Like indecency, incitement to violence is an imprecise offence. This imprecision paves the way for abuse (Sapiro 97). Each of these is, Gisèle Sapiro notes, a vague and flexible formula used in the court of justice when one cannot be prosecuted for more precisely defined crimes (Sapiro 102). There are no arguments to uphold the accusation of an “attack on good morals” or “public morals,” only “the cry of an outraged conscience”: this article of the law is nothing more than a “weapon of society, used to defend itself from what it deems can hurt it” (Sapiro 101-102). Keeping them in the Criminal Code requires stricter rephrasing. To this point, however, the way to reach consensus on legal action against art remains insufficiently clarified. Nor is it clear where we draw the limit between the freedom of the judiciary and the non-democratic restriction of the freedom of expression of the person undergoing trial. Where exactly does the disagreement between them start?
4. The misdemeanour of opinion
Such crimes (pornography, incitement to violence, indecency) contain a blatant contradiction, which can discredit the very fight against them. At the same time, the distinction between a wrongdoing and a misdemeanour of opinion is among the tests that can tell the difference between liberal societies and totalitarian regimes. The post factum legitimation of prohibitions is built around the argument that they punish culpable acts, which represent an abuse of the right to free speech. Conversely, the severity of preventive censorship (the only one that, some people maintain, deserves this name!) derives from the fact that it penalizes a misdemeanour of opinion, considered culpable because it does not comply with the official viewpoint.21 The legal issue of the misdemeanour of opinion continues to fuel the dilemma.22
Literature is a limit-case, in which the two perspectives cannot overlap. In this area, the very definition of the notion of “act” is problematic. In order to review the polemics, it suffices if we refer to the theory of commitment (in a moral and ontological sense) proposed by Sartre, a theory used to justify the indictment and conviction of French writers who collaborated with the Nazi regime, under Nazi occupation). Sartre argues that “to publish” is an act. The democratic argument (actually, a fallacy) is that what is censored is the act of publication (a deed that is objectively attributable to the publisher and the author, the only deed relevant to criminal law) and not the discourse itself, no matter how important the ideas would be as a basis for action.23 Let us note, first, that publishing is tantamount to inciting, in order to admit, in step two, that ideas are actually being censored.24 Literature relativizes the distinction between mere words and deeds, because, in a sense, the written word (writing) is the writer’s defining activity par excellence. Even without being disseminated, the very substance of creation is tainted. Thus, in the particular case of literature, to prohibit means simultaneously (Korolitski) a professional punishment. What can freedom of expression refer to in the case of a writer who has no right to publish? Guaranteeing this freedom seems to involve the prerequisite that the writer should be allowed to publish his texts, in other words, to disseminate, through publishing, his ideas, visions and conceptions, expressed in writing. If the work is not published and disseminated, the writer is not left with any relevant artistic space of self-expression. It turns out that prohibition has (in the case of the writer) a much more precarious legislative basis, by comparison. Whether what is punishable is the publication of an idea, or the idea itself, taken separately, each of them is insufficient to explain the prohibition. In fact, banning a book means withdrawing tolerance before (culpable) acts are committed; in other words, it means punishing a misdemeanour of opinion.
5. The perverse effects of censorship
Censorship has never been able to ban something permanently. However, unlike the work of art, which has no direct consequences on behaviours, censorship is harmful and produces paradoxical perverse effects. Among them, the following can be listed:
The presence of talent intensifies the act of censorship
The dangers of literature, for example, are commensurate with the author’s talent. Works that later entered the universal cultural heritage may have fallen victim to censorship on this account, while numerous other immoral writings remain unsanctioned legally, even though they are found to be morally reprehensible. Justice is not interested in them, because such writings do not enjoy sufficient notoriety.
Let us admit that this hinges on a limit of censorship, which is aware that it cannot eradicate or even control the (undesirable) phenomenon of pornography, so it tries to limit its public influence. That would explain the interest of censorship in artistic works authored by renowned writers. When such writings contain fragments that are “obscene” or “pornographic,” the influence they may exert on the public, given their prestige, is exponentially higher compared to the creations of specialized pornographers, which remain confined, as a rule, to their own niche of consumers. Such reasoning, invoked with good faith, reveals a logical stalemate: justice condemns (when it decides to do so) the works of great writers precisely because there is a presumption that they exceed the domain of literariness and touch on that of obscenity and pornography. The option to censor mainly these works and not the effervescent and reprehensible pornographic literature per se amounts, however, to an implicit recognition, in reverse, that their authors are genuine artists and not mere pornographers and that their works are, in fact, artistic, in spite of the accusation of pornography. Through the very act of accusing (only) genuine writers, judges seem to recognize the talent of those whom they condemn.
Censorship – an advertising machine
The counter-productive nature of censorship is illustrated by the fact that it often promotes the work it bans, by giving its fame (an “aura”) and increasing its audience.25 It is not rare for censored works to benefit from a more efficient dissemination than through the official circuitry. The taste for transgression arouses interest in a product that would undoubtedly be less noticeable in the absence of censorship’s sterilizing intervention. A paradox rears its head: censorship accidentally grants (commercial) value to the prohibited work, in the sense that it manages to achieve exactly the opposite of what it intends: instead of delegitimizing, denouncing and limiting access to a banned artwork, censorship, on the contrary, enshrines and creates popularity, a halo, an additional attractiveness.26 It has a promotional role, like that of a marketing campaign. To the extent that censorship has turned into a kind of involuntary advertising machine, one might say that it contains its own principle of self-destruction: by targeting an artwork, it augments its popularity. This amounts to a defeat for the official system, but for art it is a gain, a victory.
The confrontation between art and justice implies a constant, close and tense negotiation between the right to free expression, on the one hand, and the right to dignity (and identity), on the other. Both can be overstepped and there are situations in which they inconvenience/challenge each other. Therefore, the question whether art must be withdrawn from the social contract field is frequently reiterated. There is a persisting indecision regarding the question whether the freedom of art must be absolute or, on the contrary, if there should be limits to social permissiveness in relation to it. The current debate seems to indicate that relativism cannot be overcome. There are credible arguments on both sides. While we have an intuition that absolute immunity cannot be granted to art and literature, it is hard to argue convincingly in favour of judicial intervention to regulate this sensitive area of society. That is also because no good examples can be invoked, while errors and abuses abound.
The terms of this dilemma also constitute possible criteria according to which the complex and nuanced attitudes that have gained shape can be classified (simplifying, of course, the picture) into two opposed sets: one in favour of the unconditional, non-censurable, absolute freedom of art, and the other in favour of social control. The former brings together voices that say that the act of censorship is of a severity that is incompatible with the specificities of fiction, while the latter groups together opinions that art benefits from a laxity that verges on impunity. As Joel Gilles notes, each of the options is undermined by internal contradictions. If the answer to the need for control is no, it is equivalent to the notion of the insignificance of art and/or risks infantilizing the artist; art is done a disservice, being divested of the challenges that stimulate it (Gilles 21-22). In addition, making an exception for art means establishing an unacceptable conceptual hierarchy among the creations of the human spirit.27 If, on the contrary, the answer is yes, by this we credit art with meanings that have implications beyond its limits. If you are censored, it means that your work has a social impact and that it is taken seriously. However, we concede that it must be subject to common rules, without claiming that it has the right to escape social prohibition. What complicates the picture even more is the fact that the plans overlap and the same arguments are used with a different purpose in the two camps.
2. The theory of necessary control
The will and even the need to supervise artists and their art are based on both aesthetic and moral arguments. The argument is that if society waived its right of control over art, all it would achieve, by this exception, would be to promote the intolerance it wishes to avoid, for it would deprive itself, in fact, of “the legal possibility of penalizing the expression of sexist, racist, anti-Semitic innuendoes...” (Collin, qtd. in Upinsky 49). The political dimension of art is difficult to ignore; that is why it is necessary that art should obey the general principles, codes and rules that govern the public space. The fictional character of art does not imply the absence of every form of control. In fact, the argument that art has nothing to do with reality because it tackles our subjective relationship with it is contradictory. To defend the impunity of the art, disconnecting it from its bond with reality, is counter-productive (in essence, it is a vulgarized and absurd use of the critical concept of “referential illusion”), since it entails obliterating the conception from which it simultaneously derives its value. An additional problem for the exemption of art from censorship would be the difficulty of defining the artistic object today.
i. The protection of minors
If I were to select an incontrovertible justification for the social control of art, it would undoubtedly refer to the protection of vulnerable groups. “Not everything can be shown to anyone; not all people are of age” (Burnet 37) is the basic principle, which might be defined by the protection of the vulnerable, in the name of their own “good”. Certain age categories (such as children or adolescents) must be protected not because there is something harmful in the content of art, but because it may be inadequate for insufficiently mature people to appreciate it properly. In fact, the criminal codes of most European countries provide for the prohibition of broadcasting materials likely to expose minors to cultural shocks, with predictable consequences that are nonetheless difficult to quantify.28 The premise for this punishable restriction is that the censor is the voice of public interest. Appropriating the role of a parent, he exercises his profession only in relationship with the vulnerable members of society, to protect them from the undesirable consequences that they could become potential victims of. As a precaution, prevention action is required in their case. This is not a prohibition in the full sense of the term, but a contextual one, in order to preserve the innocence of children. The right to prohibit is based on the “fragility of the victim and not the harmfulness of the artist” (Burnet 40).
Excess can, however, compromise reasonable regulations of this kind. There is a tendency to gradually expand the circle of those who are considered “minors” and who need to be protected. Thus, the General Council of Var canceled Gloria Friedman’s exhibition, scheduled for December 2000, expressing the fear that what would be shown “would be incongruous with public expectations” (Burnet 40-45). In her commentary, Eliane Burnet shows that, behind the apparent respect for democratic rights, there hides a double contempt: one towards the public, considered unable to bear/tolerate anything that deviates from their expectations, but also a contempt for the artist, who becomes a kind of service provider, meeting (solely) the expectations of the public. The arrogance of politicians, who believe that “by a sort of state-granted grace, when they reach positions of power, they become able to appreciate what is good, in matters of art, for their fellow citizens” (Burnet 39), turns, in the best case scenario, into an excellent tool for the promotion of conformist, cliché art. The paternalism of censorship spills into partisan protectionism.
The notion of a symbolic minority (the idea that the lack of appropriate instruction renders one fragile and that, by contrast, education makes us immune to the possible negative influences of art) can also motivate other behaviours, driven by the fantasy of an “enlightened” elite. Luxury editions of books29 or the prohibitive prices of certain products/artistic productions represent such a solution which paradoxically capitalizes, nowadays, on the Aristotelian theory of the two publics: elitist/professional/erudite and popular/amateurish/ignorant. The risk of manipulation present in this approach is illustrated by Pierre Bourdieu in the oxymoronic paradox of “enlightened obscurantism”.
ii. Censorship as a contrastive element necessary to art
To affirm that art and censorship form a dialectical couple amounts to postulating that art is edified under coercion (through confrontation). In the absence of censorship, the necessary fertile tension no longer accumulates. The ultimate consequence would be that we need to maintain censorship, because in its absence there would also be no place for anti-censorship discourse. If we examine the consequences of its suppression, censorship appears to be, paradoxically, necessary in art, says Eliane Burnet (Burnet 45). In other words, boundaries are needed for transgression to exist. “Censors,” says Thomas Schlesser, “attest to the power of art and the fears that it can induce: they make creators face their own responsibility, compelling them to resistance and transgression” (Schlesser 9). Transgression itself is the pole a dialectical couple, formed with the idea of constraint/regulation/norm, etc. Transgression loses its raison d'être if all regulatory forms are abolished and they can no longer stir the temptation to transgress.
The argument uses Toynbee’s challenge theory: fighting the enemy fortifies you, makes you ingenious. More precisely, censorship stimulates invention, forcing the artist to find subtler means of expression. “In art history,” says George Steiner, “one can see a correlation between the value of works of art and the violence exerted by the powers to be: the greater the coercion, the more alive the art. Hence the terrible conclusion that the greatest works of art were born out of the greatest tyrannies” (Burnet 48). Thus, a cycle sets in: subversion and transgression are the engine of art, which tests the fragility of order, which requires censorship.
iii. Censorship as a form of value selection
Often the censorship/anti-censorship dialectics is part of a complex system of exchanges at different levels of the cultural field, through which a selection/evaluation process is carried out. Integrated into this mechanism, censorship clarifies what is legitimate and what is not in a culture (Kidd x).
iv. Censorship: a cultural ferment
Although too rarely stressed, there is a cultural gain which consists in the enrichment and globalization of thinking caused by the migrations of authors who were ostracized in their home countries: “Forced exile constitutes a source of exchanges, strengthening the impact of thought that was intended to be suppressed and expanding its area of influence” (Goedert 13).
The experience of totalitarian regimes shows an amplification of the role of art. Having an ideologically constrained trajectory, words are charged with new symbolic and aesthetic meanings that reverberate socially.
v. Censorship: an artistic catalyst
Censorship becomes participatory, assisting to complement and sometimes to enhance the suppleness of the work. The quality of art increases through the act of censorship.30 It has been argued (especially in the case of literature) that the changes demanded by censors can be beneficial to the aesthetic value of a book, contributing indirectly to the enrichment of its imaginary universe. By a principle of amputation, writers sharpen their expressive acuity, refining their style.31 The obstacles to censorship are thus thwarted by poetic means. “Censorship,” Petre Răileanu comments, “works as a fuel of imagination and grants meaning to subversion” (Răileanu 7). Although possible,32 the valorisation of these side effects of censorship ignores the overwhelming multitude of authors’ testimonies about the opposite outcome. The work does not come out clarified/purified from the fire of censorship but, on the contrary, it emerges stunted and deformed, ideologically diminished and, implicitly, aesthetically mutilated.
It seems reasonable to lay emphasis on the term “side” when we talk about the “beneficial side effects “of censorship. It is not in the interest of censorship to stimulate creativity. On the contrary, its goals are mainly, if not entirely, destructive. Therefore, to argue that censorship as a status quo can produce these beneficial aesthetic results is an exaggeration or a non-sense.
Each of the above allegations has been met with opinions to the contrary.
The reasoning according to which art is reformed, out of necessity, when subjected to coercion is false. In fact, this is a sophism that introduces, through the back door, a prejudice against transgressive art, whose acts are regarded as gratuitous. The premise is tendentious against protesting writers, who are portrayed as arrested in a permanent act of reiterated rebellion. However, the artists’ revolt against totalitarian censorship, for example, is not an end in itself, but a reaction against restrictions that are felt to be dangerous for art and for the guaranteed freedoms of the individual. Liberators would not be needed if there were no oppressive bans. The relationship between censorship and transgression could be described, rather, as an arms race, as a ceaseless competition that generates refinements in both parties, both in the oppressor and in the oppressed.
In the same way, a perverse effect is that marginal artistic voices must become ever more ingenious, being forced to refine their discourse (including from an aesthetic point of view), so as to be heard and acknowledged. It is counter-intuitive to argue that artistic refinement would not have been possible otherwise. Subversive authors (a possible typology, because not all artists are militant) would prefer there not to exist censorship, and their main purpose is precisely to eliminate it in order to be able to freely express their own ideas.
I am inclined to think that there is no “good” censorship in literature, just the side effects of sterilizing interventions.33 Paradoxically, those who defend censorship, emphasizing its positive effects, condemn it radically. Whatever possible beneficial consequences may emerge are involuntary, strengthening in fact the negative essence of censorship. Through its arbitrary interventions, art is disfigured and constrained to become, in turn, compatible with a deformity that is fundamentally foreign to itself.
vi. Censorship as incitement to freedom
The defence of censorship reaches the apogee in the form of a paradox: not only does it ensure the protection of culture (and, implicitly, of human dignity), but censorship also becomes an incitement to freedom. Defining the “frontier between what is allowed and what is forbidden, it outlines a space of freedom, which is less destabilizing as the no man’s land of ‘everything is allowed’”.34 Censorship would therefore safeguard the beneficent rules for the community, the rules that are necessary for the proper functioning of society. If there are no more rules (prohibitions) to defy, then it is not freedom that acquires expression, but barbarity, anarchy, nothingness. The distinction between public and private is exploded and, with it, the differences that structure the cultural and social space disappear. As for art, it is allegedly subject to a levelling, flattening effect. The loss of the halo, the disappearance of the “auratic” dimension of the work of art reduces it to the status of mere commodity, vulgarized by mechanical reproduction. For Jean-Paul Curnier, the absence of censorship is tantamount to the disappearance of the right to criticism: “The total refusal of censorship risks becoming the prohibition to express revulsion, disgust, rejection, when the ignominy of the image is not a sign of aesthetic value,” and the “inability to express a critical judgment” (Curnier 65, qtd. in Burnet 47).
For art, a series of practical inconveniences arise from the common-sensical assertion of socially indispensable norms. When it comes to their enforcement, it is difficult, if not impossible, to distinguish between the standards understood as simple behavioural cues that are acceptable (even laudable and inspiring) and, respectively, rules that are perceived as unfair, discretionary and oppressive, with an inhibiting effect on art. Not only censors, but also some artists walk the thin line between the two contradictory meanings.
As for axiological collapse and immunity to criticism, given the absence of any grounds for prohibition entailed by the (presumptive) abolition of censorship, I am afraid that the reasoning is similar to the one exposed by Žižek, who mentions, among the symptoms of consumerist society, the shift from happiness as the privilege to the “duty” to be happy. The latter acquires, like the freedom to which censorship incites the artist, a convulsive quality. Telling it all, confessing to everything is a kind of self-administered secret delight for writers. In this hypothetical case, it becomes an imperative drive, as tyrannical as that of prohibition, which was supposed to be removed.
3. The theory of the absolute freedom of art
Art is a fundamental good. It enriches the quality of life, diversifies thinking and expression. Cumulatively, the criticism of censorship leads to an encomiastic discourse, which affirms the right of art to a statute of extraterritoriality (where current rules and norms are suspended) and sacralises the artist. The museum is a possible prototypal example. The museum, says Eliane Burnet, “should be considered as a kind of foreign embassy with all the prerogatives of immunity and inviolability” (Burnet 41). Art, like the museum, is the enclave where one should not intervene to sterilize artworks, in the name of legal and/or moral considerations, and the artist is the beneficiary of a state of exceptionality. It is easy to see the romantic reflex in this option.35 What is curious, however, is that art lays claim to a privileged status in a moment and in a (postmodern) context which tends, by virtue of trans-aesthetic definitions, to reach democratization and to transgress the borders between art and life. On the one hand, the concept of “spontaneous creativity” imposed by pop culture has democratized art, cancelling the “aesthetic distance” between art and non-art. On the other hand, in a contradictory manner, the new democratic art tends to simultaneously preserve the privileges of talent.
For the critics of censorship, things are therefore clear: freedom is constitutive of art, which, in turn, is vital for democracy. They demand thus the legal entrenchment of the artist’s privileged status and the recognition of the absolute freedom of creation as a fundamental freedom.36 The argument is simple: tolerating freedom of expression is the only possible way forward, and art is able to resolve its own internal contradictions. For example, in cases where (see Dostoevsky) an authentic work of art carries with itself (also) a retrograde political message, such content is absorbed, suppressed and dialectically surpassed by the great artistic/aesthetic value of the whole. By contrast, the ultimate consequence of censorship is self-censorship.37 This marks the defeat of the freedom of thought and imagination.
The claim that art and artists should have an exceptional status conjures up arguments from two different registers.
i. The transgressions of art
The association between art and transgression has been strengthened by the emergence of the culture of originality, which promotes the “interesting” new (defined not just as something unprecedented, but also as something that is “captivating,” “enlightening” even). The classical tradition of praising prestigious canons and established conventions has been replaced, starting with romanticism, by a poetics of transgression, which violates norms, in both aesthetic and moral terms. Frequently, art violates some prohibitions. Aesthetically, the work of art dynamites the old cultural preserves, generating new ones, which will be challenged, in their turn, at a fast pace.38 Contemporary art has a strong experimental character (corresponding to the increasingly liberal character of society) and promotes an aesthetic of shock. Simultaneously, art is transgressive also in relation to the whole network of social norms and conventions, which it constantly provokes, pushing it into crisis, in the hope of forcing its resurrection. What if, asks Thomas Schlesser, given the generalized moral and social anaesthesia, “in order to awaken consciousness, art is condemned to step outside the law?” (Schlesser 199). Numerous contemporary artists uphold, in any case, the irreverent nature of creation.39 Conversely, genuine censorship imposes norms that are not only ideological, but also formal, consubstantial to art, which means that the moral ban on the work is simultaneously an artistic one. As for the artist, he has a history of violating prohibitions. He was declared a professional of transgression (Anthony Julius). It is considered, however, that, unlike a criminal, who is guilty of transgressing social and moral order, the artist’s transgression is creative, culturally productive.
Therefore, the need for the freedom of artistic expression is drawn from the very (alleged) transgressive nature of art. For over a century, transgression has been at the very core of art. It is art’s generating engine. Hence, the question arises whether there can be punishable transgressions in its case, without annihilating its specificity (its emblematic characteristic, its distinctive status)?
ii. The futility of censorship
Equally paradoxical is the second argument. The inefficiency of censorship, in the case of art, requires that it should be relinquished, not only because it is undemocratic and inopportune, but also because it is futile. Art is immune to censorship, because fiction eludes it through allegory, metaphor, metonymy, allusion and so on.
As a respondent to the survey on “Censorship and Books” published by Magazine Litteraire in 1920, Borges seems to have amused himself with a deliberately contentious response. He asserted that censorship was not the unanimously feared enemy of literature, but, on the contrary, an incapacitated/powerless adversary that used inefficient and somewhat rudimentary weapons.40 Art tolerates censorship and has the resources to integrate and transform its sterilizing interventions, through metaphor and the poetics of incompleteness. Metaphor, Borges says, has always ensured artistic success through an extraordinary poetic intuition. Poetry is, by definition, transfiguration. It produces a quasi-alchemical transmutation of reality. A text that does not reach the level of metaphor (including as a structural trope) is not literature. The value of art lies (even for a poet of transparency like Whitman) in metaphorical language, which renders the text intangible to censorship. In fact, censorship responds and can react to the crude language,41 to unrefined expression, which is clearly provoking. However, one does not need to be either unpolished or unconventional to say what one means, using the language of art. According to this reasoning, it appears that censorship targets those literary texts (or fragments thereof) that forsake their artistic status through non-transfiguration.
Censorship is, in Borges’s view, irrelevant also from the perspective of a poetics of incompleteness. It is condemned by thinkers like Schopenhauer, for whom the literary text is sacrosanct and untouchable. In reality, it must be regarded, however, as an endlessly reworkable draft. All writers, Borges says (resorting to a Platonic-Jungian conceptual scaffolding), copy, reshuffle, rearrange the Great Universal Text, succeeding only in part to give shape to those non-sensible Ideas. Each literary work is an always already erroneous version of the archetypal Text.42 At this scale of vision, the impotence of censorship becomes obvious.
The truth is that Borges resorts to a poetic license. His declaration of acceptance of censorship takes the form of a metaphor eulogizing literature. The artist and his poetry are elevated to an area that is inaccessible to censorship. Despite all attempts at corseting it, art triumphs. Censorship can be defeated simply by ignoring it.
4. The difficulty of slipping through the horns of the dilemma
The bibliography of the problem indicates that the theme of censorship in art is a reason for permanent controversy. Although both positions taken in the dispute are comprehensible and compelling from the perspective of the ideology assumed by each, all these interpretations are undermined by various problems. The repeated failure to produce an impeccable volley of arguments can also be motivated by the collective emotional climate. The pathos that surrounds debates often makes them obscure and inoperative. There is no neutral space in which the battling ideas can be analysed, no (supraordinate) authentic court to arbitrate the conflict, only biased parties that dispute their supremacy.
There is no disagreement on which the rational camps might reach an agreement. Censorship is generally considered bad because it suppresses ideas and works. To claim that all actions against it are good would, however, be a reductionist fallacy. The recommendation to take account of paradigmatic examples in order to arrive at an adequate definition of censorship is incompatible with the disagreement generated by controversial cases. To use the same word for one and the other risks making the (traditional) concept of censorship inoperative. The desire to avoid lexical tricks (which push the problem one step behind, without solving it) raises questions about which moves are permissible and which ones are not in the effort to define censorship.
There is no trenchant response that might disarm all camps simultaneously. The final verdict must be suspended, because previous answers to the components of the issue under discussion could not be clarified/elucidated, resulting in endless (and sometimes implicit) attempts to define censorship.
In this dilemmatic context, it is difficult (even impossible) to answer the question if there is any solid reason why art should (not) be censored. For art is placed in the interval. Its position is problematic in any society. Ideally, it should be recognized that art has a status of its own and there should be a provisional (albeit unstable) balance. We would like to believe that there are beneficial forms of censorship, backed by the complementarity between Good, Law and Truth. However, if we stay true to reality and do not fall for utopia, we must recognize that censorship is repugnant since it is perceived as a means that contributes to the consolidation of power. The fact is that societies in which political power wants to turn art into its own instrument, there are always ways to regulate its privileges and limits, thus establishing censorship. Still, censorship cannot achieve infallibility. Art always finds remedies, means to express, in different ways, whatever censorship is trying to ban. Therefore, a dynamic dialectic has set in between various types of censorship and various forms of transgression/subversion. The themes of this confrontation are historically redefined, each era displaying its own spectrum of confrontation scenarios.
The issue of the immunity of art oscillates between the Scylla of excessive prohibitions and the Charybdis of some “Trojan horses” (vectors through which, it is believed, works of art carry messages with a socially toxic potential). Not only do the excesses of art cause a need for civic control, but they also fuel the excesses of censorship. The reverse holds true as well. In between the more extreme cases placed at the edge of the spectrum (the happiness or the unhappiness of art due to censorship or non-censorship) are the everyday situations, in which art is punished, gently or harshly, for its audacities. Permanently at work (including in liberal societies) is the silent censorship of an “anonymous authority” (Erich Fromm), which most often evinces a conservatism that is instinctively opposed to art’s liberties, especially to those verging on libertinism.
Translated into English by Carmen Borbely
Bartel, Christopher. “The Fine Art of Pornography? The Conflict Between Artistic Value and Pornographic Value.” Porn – Philosophy for Everyone: How to Think with Kink, edited by Dave Monroe. Wiley-Blackwell, 2010: 153-165.
Baudrillard, Jean. L’Echange symbolique et la mort. Gallimard, 1976.
Berger, Fred. “Pornography, Sex, and Censorship.” Social Theory and Practice, 4 (1977): 183-209.
Bovens, Luc. “Moral Luck, Photojournalism, and Pornography.” Journal of Value Inquiry 32 (1998): 205-217.
Brochier, Jean-Jacques, “Les arguments contre la censure.” Communications, 9 (1967) : 64-74. DOI : https://doi.org/10.3406/comm.1967.1129
Bruyere, Claire, and Henriette Touillier-Feybrabend. “La censure et ses masques.” Ethnologie francaise, vol. 36, no. 1, 2006.
Chiurato, Andrea. “«L’érotisme des autres»: phénoménologie de la pornographie chez Robbe-Grillet.” www.revue-analyses.org, vol. 7, no. 1, hiver 2012: 177-198
Clark, Kenneth. The Nude: A Study in Ideal Beauty. John Murray, 1956.
Danto, Arthur C. The Abuse of Beauty: Aesthetics and the Concept of Art. Open Court, 2003.
Domenach, Jacques (ed.). Censure, autocensure et art d’écrire. De l’Antiquité à nos jours. Editions Complexe, 2005.
Durand, Pascal, Accardo, Alain. Médias et censure, figures de l’ortodoxie. Editions de l’ULG, 2004.
Elliott, George P. “Against Pornography.” Perspectives on Pornography, edited by Douglas Hughes. St Martin’s Press, 1970: 72-95.
Ellis, Havelock. Studies in the Psychology of Sex: Volume 4. Bibliobazaar, 2007.
Essche, Eric Van (ed.). Le Sens de l’Indecence. La question de la censure des images a l’âge contemporain. La Lettre volée, 2005.
Fish, Stanley. There’s No Such Thing as Free Speech and It’s a Good Thing, Too. Oxford University Press, 1994.
Frederick, Danny. “Pornography and Freedom.” KRITIKE, volume V, no. 2 (December 2011): 84-95.
Glucksmann, André. “La métacensure.” Communications, vol. 9, no. 1, 1967.
Goedert, Nathalie (ed.). Censure et liberté: atteint ou protection?. Presses Universitaires de Sceaux, L’Harmattan, 2011.
Graham, Gordon. “Sex and Violence in Fact and Fiction. “ Media-Ethics, edited by Matthew Kieran. Routledge, 2008: 152-164.
Huer, Jon. Art, Beauty, and Pornography: A Journey Through American Culture. Prometheus, 1987.
Jacobsen, Carol. “Redefining Censorship. A Feminist View.” Art Journal, winter, 1991.
Julius, Anthony. Transgressions. The Offences of Art. Thames & Hudson L, 2002.
Kidd, Kenneth. “Not Censorship but Selection.” Censorship and/as Prising, 2 December 2008.
Kieran, Matthew. “Pornographic Art.” Philosophy and Literature 25 (2001): 31-45.
---. “On Obscenity: The Thrill and Repulsion of the Morally Prohibited.” Philosophy and Phenomenological Research 64 (2002): 31-55.
Korolitski, Ulysse. “Les justifications de la censure.” Raisons politiques, 2005/1, no. 17.
Langton, Rae. “Speech Acts and Unspeakable Acts.” Philosophy and Public Affairs 22 (1993): 305-330.
Lefrère, Jean-Jacques, and Michel Pierssens (eds.). La Censure, Du Lérot, 2006.
Levinson, Jerrold. “Erotic Art.” The Routledge Encyclopedia of Philosophy, edited by E. Craig. Routledge, 1998: 406-9.
Llosa, Vargas. Adevărul minciunilor. Ed. Alfa, 1999.
Maes, Hans. “Art and Pornography.” Journal of Aesthetic Education 43 (2009): 107-116.
---. “Art or Porn: Clear Division or False Dilemma?” Philosophy and Literature 35 (1), 2011: 51-64.
---. “Drawing the Line: Art versus Pornography.” Philosophy Compass, 6(6), 2011: 385–397.
Mag Uidhir, Christy. “Why Pornography Can’t Be Art.” Philosophy and Literature 33 (2009):193-203.
Mahon, Alyce. Eroticism & Art. Oxford University Press, 2005.
Malița, Liviu. “Cazul Brâncuși. Definițiile tradiționale ale artei.” Extremele artei, Ed. Accent, 2010: 8-27.
Marcus, Steven. The Other Victorians: A Study of Sexuality and Pornography in Mid-Nineteenth-Century England. Basic Books, 1964.
Mey, Kerstin. Art & Obscenity. I.B.Tauris, 2007.
Michelson, Peter. Speaking the Unspeakable: A Poetics of Obscenity. State University of New York Press, 1993.
Müller, Beate (ed.). Censorship and cultural regulation: Mapping the Territory. Critical Studies, October 2003.
Nabokov, Vladimir. “On a Book Entitled Lolita.” Lolita. Penguin, 1995: 311-317.
Nussbaum, Martha C. “Objectification.” Philosophy and Public Affairs 24 (1995): 249-291.
---. Hiding from Humanity: Disgust, Shame and the Law. Princeton University Press, 2004.
Pauvert, Jean-Jacques. Nouveaux (et moins nouveaux) visages de la censure suivi de L’Affaire Sade. Les Belles Lettres, 1994.
Peckham, Morse. Art and Pornography: An Experiment in Explanation. Basic Books, 1969.
Rasson, Luc. L’Ecrivain et le Dictateur. Ecrire l’expérience totalitaire, IMAGO, 2008.
Saint-Martin, Isabelle. “Christ, Pietà; Cène, à laffiche: écart et transgression dans la publicité et le cinéma,” Ethnologie francaise, vol. 36, no. 1, 2006: 66-69.
Sapiro, Gisèle. La responsabilité de l’écrivain. Littérature, droit et morale en France (XIX e – XXI e siècle). Editions du Seuil, 2011.
Schlesser, Thomas. L’art face à la censure. Cinq siècle d’interdits et de résistances. Editions Beaux Arts, 2011.
Schopenhauer, Arthur. The World as Will and Representation. Volume 1. Trans. E.F.J. Payne. Dover, 1965.
Scruton, Roger. “Flesh from the Butcher: How to Distinguish Eroticism from Pornography.” Times Literary Supplement, 15 April 2005: 11-13.
---. Beauty. Oxford University Press, 2009.
Sherman, Jeffrey G. “Love Speech: The Social Utility of Pornography.” Stanford Law Review, vol. 47, April 1995: 661-705.
Shusterman, Richard. “Aesthetic Censorship: Censoring Art for Art s Sake.” The Journal of Aesthetics and Art Criticism, Vol. 43, No. 2 (1984): 171-180.
---. “Aesthetic Experience: From Analysis to Eros.” Aesthetic Experience, edited by Richard Shusterman & Adele Tomlin. Routledge, 2008: 79-97.
Sontag, Susan. “The Pornographic Imagination.” Styles of Radical Will. Vintage, 1994: 35-73.
Spicher, Michael R. “The Distinct Basic Good of Aesthetic Experience and Its Political Import.” American Catholic Philosophical Quarterly, Vol. 87, No. 4