And whosoever shall offend one of these little ones..? Is 'community standard' applicable to cases of freedom of artistic expression?

Author:Gorski, Marcin
Position:Cultural Rights and Global Development

And whosoever shall offend one of these little ones that believe in me, it is better for him that a millstone were hanged about his neck, and he were cast into the sea Mark 9:42-50 King James Version (KJV) Is it really the 'common citizen' who should dictate what is and what is not acceptable in the sophisticated field of art? Or should we rather teach the general public new art conventions and trends by challenging traditional taste and habits? After all, if we really and seriously treat the 'community standard test' as decisive, we may end up with the conclusion that we cannot go any further but keep on admiring Hogarth's The Graham Children (1742) in London's National Portrait Gallery.

In spite of that, courts from different jurisdictions (e.g. the USA, India, Romania, the Russian Federation or Japan) continue to apply the 'community standard [or tolerance] test' in order to delimitate the scope of freedom of artistic expression. In some other states, the applicability of this test in cases concerning freedom of artistic expression has been disqualified either explicitly (Canada) or implicitly (Colombia). This text focuses on whether the community standard test is applicable at all to cases where freedom of artistic expression is at stake.

What is artistic expression?

Defining what is freedom of artistic expression (hereafter referred to as 'FAE') implies establishing, firstly, what is meant by 'artistic expression'. Farida Shaheed, the first UN Special Rapporteur in the field of cultural rights, declared in her 2013 Report on the right to freedom of artistic expression and creativity that she had no intention 'to propose a definition of art' (1). Similarly, the German Bundesverfassungsgericht held in the now famous Anachronistischer Zug case decision, that construing the definition of art [which is the notion employed in Article 5.3. of the German Grundgesetz--MG] cannot imply a reference to a general concept applicable to all manifestations of artistic activity and for all artistic genres (la[beta]t sich nicht durch einen fur alle Au[beta]erungsformen kunstlerischer Betdtigung und fur alle Kunstgattungen gleicherma[beta]en gultigen allgemeinen Begriff umschreiben) (2).

Therefore, in the majority of jurisdictions, courts abstain from defining the content of FAE. Some courts even criticize categorizing certain forms of expression as 'artistic'--like the South African Constitutional Court in Case and other (3). Some other courts simply assume that lawyers do not possess proper qualifications to assess artistic merit of disputed works (4). Indeed, if art is an autopoietic system (5), it is unlikely to be categorized from the perspective of another autopoietic system, namely the legal one (6).

Nevertheless, certain supreme or constitutional courts attempt to propose definitions of artistic expression. The earliest effort undertaken to that effect was the Mephisto decision (7) of the German Bundesverfassungsgericht delivered in 1971 where the BvG held that:

... the life sphere of art is to be determined by the structural features, which are characterized by the essence of art, and are their only characteristic features. The interpretation of the concept of art in the Constitution must be based on them. The essence of artistic activity is free creative creation, in which impressions and experiences of the artist are brought to immediate perception through the medium of a certain formal idiom. All artistic activity is an intertwining of conscious and unconscious processes, which are not rationally resolvable. In artistic creation, intuition, imagination and artistic sense work together; it is primarily not communication, but expression, and the most direct expression of the individual personality of the artist. The guarantee of freedom of art likewise affects the scope of work (Werkbereich) and the sphere of influence (Wirkbereich) of artistic creation. Both areas form an indissoluble unity. Not only the artistic activity (Werkbereich), but also the performance and dissemination of the work of art are necessary for the encounter with the work as a likewise art-specific process (8). Quite similarly, the Colombian Constitutional Court defined artistic expression as 'intimate way of turning into material reality that what previously existed only in artist's imagination' (9). ECtHR Justice de Meyer in his separate opinion in Muller (10) also reached similar conclusions declaring that:

Whilst the right to freedom of expression 'shall include' or 'includes' the freedom to 'seek', to 'receive' and to 'impart' 'information' and 'ideas', it may also include other things. The external manifestation of the human personality may take very different forms which cannot all be made to fit into the categories mentioned above. Finally, the Canadian Supreme Court held in Sharpe (11):

What may reasonably be viewed as art is admittedly a difficult question--one that philosophers have pondered through the ages. [...] The question of whether a particular drawing, film or text is art must be left to the trial judge to determine on the basis of a variety of factors. The subjective intention of the creator will be relevant, although it is unlikely to be conclusive. The form and content of the work may provide evidence as to whether it is art. Its connections with artistic conventions, traditions or styles may also be a factor. The opinion of experts on the subject may be helpful. Other factors, like the mode of production, display and distribution, may shed light on whether the depiction or writing possesses artistic value. It may be, as the case law develops, that the factors to be considered will be refined'. Without in fact entering into a judicial dialogue with each other, these authorities seem to have reached similar conclusions, namely that art (artistic expression) is a medium for expression of inseparable combination of conscious and unconscious processes occurring in the intimate sphere of the artist (expression of one's personality and feelings he or she experienced). It can, but not necessarily does it have to, constitute means of communicating information or ideas. Whether particular work constitutes art can be assessed by references to expert opinions, modes of distribution, artistic conventions, as well as content and form, however this list of...

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