As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
Over the past three years, several irate commentators have lambasted the University of Cape Town (UCT) – who happens to be my employer – for what they have called the egregious censorship of works of art by the University. The latest response comes in an open letter published on Politicsweb. Such critics use the wrong language to have the wrong conversation, when an intellectually much more stimulating and productive discussion is to be had about the aesthetic/political choices of large institutions who buy and display art.
In June 1989, the Corcoran Gallery of Art in Washington canceled a planned exhibition of photographs by Robert Mapplethorpe (who had died earlier that year of an Aids-related illness), because the gallery worried it would lose state funding if it displayed the artist’s work. Mapplethorpe’s photographs offended many people – mostly conservative and homophobic politicians and their constituents – because of the sexually explicit nature of the work.
The planned exhibition at the Corcoran included a number of homoerotic and sadomasochistic images, along with nudes of children. One of the most controversial pictures included in that show was “Man in Polyester Suit” (which was sold in 2015 for $478 000). This is a 1980 photo of the torso and crotch of the artist’s lover Milton Moore wearing a three-piece suit with his uncircumcised penis exposed. (In recent years some critics – mostly from the left – have argued that some of Mapplethorpe’s images objectify black men and are by definition racist.)
In 1990, the Contemporary Arts Center (CAC) in Cincinnati hosted the Mapplethorpe exhibition cancelled by the Corcoran. But on the day of the show’s opening, the CAC and its director Dennis Barrie were charged with obscenity. After a lengthy trial, a jury deliberated just two hours before acquitting Barrie and the CAC on all counts, determining that the photographs were indeed art and therefore not obscene.
UCT can obviously not afford to buy “Man in Polyester Suit”. But assume the University had unlimited funds to purchase art and that the photograph was for sale, would it constitute “censorship” if the University declined to buy the famous Mapplethorpe work? Would it constitute “censorship” if UCT bought the work and then declined to hang it in the foyer of the main hall where graduations take place?
What if UCT had already hung the work in the foyer and parents (confronted with a picture of the penis of Milton Moore during their daughter’s graduation) had objected to it because the work offended their Christian morals? Would it make a difference if the parents objected not so much because they were forced to look at a penis, but because the parents were racist and objected to the fact that they were forced to look at a black man’s penis?
Would it be worse if the University removed the photograph not because it worried about the feelings of the parents, but rather because it worried that the parents would stop donating large amounts of money to the University’s TB research Unit?
Would it make a difference if UCT had already bought the work, but had decided not to display it on campus, but rather had asked the Irma Stern Museum to display it to fee paying customers? Would your views be different if UCT refused to host the work at the Irma Stern museum because it objected to the “homosexual propaganda” contained in the exhibition?
Would your answer change if the work was bought by the Zeitz Museum of Contemporary Art Africa (MOCAA) and displayed there – before being removed after complaints from visitors who felt “offended” by what they called a “disgusting and perverted” work of art that insults God? What if the MOOCA displayed the work for several months before replacing it with newly acquired work as part of its normal policy of rotating the work in its collection?
I belabour the point somewhat to try and convince readers that the language of rights and censorship may not always be helpful when engaging with questions of what art should and should not be displayed, where that art should or should not be displayed, and when it should be permitted to take down art and/or to replace it with other art.
The problem is that the accusation of censorship makes it unnecessary for the accuser to explain why he or she disagrees with a particular decision to display or take down a work of art, or with the reasons given for the controversial decision. It also makes it unnecessary for the accuser to admit that his or her response was at least partly animated by his or her own ideological and aesthetic commitments, to reflect critically about those commitments, or to have to defend those commitments.
The right to freedom of expression is then deployed to end any discussion about the work of art – except in abstract aesthetic terms. If there is an absolute (or near-absolute) right to have any work of art (or any good work of art) displayed anywhere, and not to have that work of art ever removed or replaced, then it becomes unnecessary ever to respond to any political analysis or criticism of a work of art and its effects, or the ideology reflected or advanced by that work, or to any choice about when and where a work of art is to be displayed. I fear this position runs the risk of being anti-intellectual, and – I would suspect – anti-art.
Some who embrace this approach might even argue that art cannot be ideological, that you get bad art and good art, and that good art deserve to be displayed, but bad art not so much. This is not a position that I agree with or believe to be tenable. It is a view that might come as a surprise to people who consider Leni Riefenstahl’s “Triumph of the Will” a technical masterpiece, but nevertheless condemn the film because it was such an effective propaganda tool for the Nazi’s.
My view is that decisions about what is good or bad art are based not only on technical criteria but also on (partly unarticulated and unexamined) assumptions that the person making the judgment will seldom be fully aware of.
Those who are economically and socially dominant (and whose values and beliefs are culturally embedded in, and animate, decisions about what constitutes art, or what is good or bad art) often find it particularly upsetting when these unwritten rules (which may even be invisible to them) are criticized and the choices made in accordance with these rules are challenged. It is therefore not surprising that some respond to politically motivated criticism of art by largely avoiding engagement with the substance of the criticism, either by ridiculing those they disagree with or by invoking the right to free speech and the specter of censorship.
Because the curation of art raises difficult questions, and because reasonable people will differ on the best choices to be made about the acquisition and display of art by institutions, I would generally prefer arguments about this to avoid the language of rights and censorship. (An argument about whether it will a good idea to hang “Man in Polyester Suit” in the foyer of the UCT Kramer Law Building would surely be much more constructive if it moved beyond a shouting match on whether it would constitute censorship not to do so?)
If this argument is accepted, it may become possible to have a robust, even rude, but meaningful discussion (ok, let’s get real, I mean a heated argument or even a shouting match) about the choices different types of institutions should make about what art to acquire, whether to display that art, alongside what other art to display it, and where to display it.
With this in mind, we can return to the questions I raised about UCT acquiring and displaying Mapplethorpe’s “Man in Polyester Suit”, to see whether a move away from the language of censorship may not reveal that we agree about more than we may think.
I suspect most people who take the time to read this column will almost always object when the state prosecutes an artist or the head of an art museum for displaying art that make others uncomfortable, upset or disgust them or hurt their deeply held religious or moral beliefs or feelings. It’s the type of situation that most appropriate lends itself to the deployment of the language of rights and censorship, because rights in this context can be used as trumps and courts can be asked to enforce the right to freedom of expression to protect citizens from the authoritarian actions of the state.
I also suspect that few people who read this column will have any problem with a museum or other institution removing art from display and replacing it with other art if this is part of the normal process of rotating the display. While some of the people who have objected to the removal of certain artworks at UCT have claimed that the removal of displayed art is censorship per se, I suspect on reflection even they will agree that this view is not tolerable.
After all, institutions like art museums remove art from display every day. In fact Quartz magazine, who surveyed the holdings of 20 museums in 7 countries, found that, together, only 44% of the art included in the survey was on display. That’s 689 works in storage for just the dozen artists the magazine surveyed. I can’t imagine that even the most ardent critic of the decision by UCT to remove and/or replace some works of art with other works of art will argue that these museums are guilty of authoritarian censorship. So, when people accuse UCT of censorship, what they almost invariably mean, is that they disagree with the reasons given for the removal of a particular work. Would it not be better to drop the accusations of censorship and rather engage critically with the reasons given for a particular curatorial decision?
I might be wrong, but I also suspect that many readers will agree that it does not constitute censorship if a museum – following the latest trend in the museum world – replace some of the art made by male artists with art made by female artists. (Last year, during a visit to the Art Gallery of Ontario in Toronto, I was struck by the sizeable number of works by female artists displayed on the walls, and assumed that this was done as part of a deliberate policy to correct the previous erasure of women artists.)
Other choices (and the reasons advanced for them) would spark far more controversy. When considering where you stand on a particular work of art, I would argue that different criteria should apply to art displayed in a museum than to public art. It would be much easier to argue for the display of “Man in Polyester Suit” in an art gallery than on the wall of a high school. I also think the reasons behind specific choices should be subjected to critical scrutiny.
This is why I would be outraged if the Zeitz MOOCA took down “Man in a Polyester Suit” because of homophobic protests outside the museum, but would not be upset if that work was not hanged in the foyer of the Kramer Law Building because it would be deeply disturbing to some visitors, either for puritanical reasons or because it would be read as objectifying black men.
I am sure some people will disagree with me, and may try to show that the assumptions on which I base my view are wrong or that I am just a closet prude. Such disagreement would be perfectly normal. As long as we do not turn this disagreement into a completely misguided shouting match about censorship, both sides might even learn something from the argument that might ensue.BACK TO TOP