Guy Rundle’s recent article on the Bill Henson case in the Age has provoked some positive and negative criticism.
Even Andrew Bolt has quoted it positively, which suggests that something strange is afoot!
Left Wing Turncoats
I suspect that Bolt has embraced Rundle, because the Right loves no-one more than an apparent Left-wing turncoat. Not that the reverse isn’t equally appealing to the Left.
Bolt has quoted Rundle precisely because he appears to have broken ranks with the Libertarian Left and sided with the Moralistic Right on the issue of Bill Henson, Art, Pornography and the Law.
This issue reminds me of an earlier generation of American Leftists, some of whom crossed the border and became Neo-Conservatives.
One of them (and I just can’t remember who at the moment) once defined himself as a cultural radical, a social liberal and an economic conservative.
Having ceased to be (or never been) a communist or fellow-traveller, he still wanted to hold onto some sense of “radicalism” in the cultural sphere.
Since then, Neo-Conservatives have turned the word “liberal” into a pejorative.
It’s almost as if there is no middle ground, so that the world is now divided into conservative or radical (and god help you if you’re radical at the moment, even culturally).
There doesn’t seem to be any place anymore for a person who is prepared to question the basis of things that everyone else takes for granted.
Hard Cases Make Bad Law
Every now and then, even within a less radical world, there emerges an issue that forces us to re-think our values and our prejudices.
The Bill Henson case is one of these issues.
In Rundle’s words, it was a car crash waiting to happen.
And it was a car crash, precisely because it brought Art, Morality and the Law into conflict.
In a conflict like this, it’s interesting to see which side we fall on.
Rundle clearly falls on the side of Morality. In doing so, he chooses to take Art down with him.
Rundle’s Historical Perspective
Rundle starts by establishing an historical conflict between:
• philistine police and a smug general public; and
• artists bravely pushing the limits of freedom and critical thought.
He pretends to speak romantically of this era and the manner in which the Ern Malley case symbolised the conflict.
However, then he asserts that:
“60 years on, the country and the culture have changed.
“Globalisation, deregulation and higher education ensured that the problem with explicit material was not how to get it, but how to avoid it.
“As mass culture changed, so did mass values - Australians were at home with explicit treatments of sex, drugs and violence.”
So far so good from an historical point of view.
We have become a more tolerant society and there are some things that we can now tolerate that we didn’t tolerate before.
“Yet,“ he continues, “elite artists continued to tell the Ern Malley story in defence of their projects”.
Suddenly, he implies that, now that the battle has been won, anyone seeking anything more is over-reaching.
And the word “elite” has creapt into the debate.
Cultural conservatives always argued that any attempt by the Art World to exempt itself from the rules of propriety or decency was elitist.
They were trying to be above the Law.
The conservatives lost up to the extent that exemptions for Art exist in the Law today.
However, now we have Rundle and the conservatives on the same team.
Why did this happen?
The Car Crash Metaphor
Rundle constructs his car crash metaphor on the foundation of the following views:
“Henson's photos are not problematic because of what they depict, but because of who is involved in the depicting.
“The issue isn't a free speech one, it revolves around the status of children.
“Henson's defenders know this, and few of them, if any, believe the more libertarian case - that parents should be able to circulate explicit images of their children in any medium they like - so they have to fall back on a series of archaic judgements: Henson is a genius whose motives are pure, and the images circulate only in a gallery and art magazines, the argument goes.”
The first sentence states the nature of the conflict. And it is probably right.
However, the second sentence is the one that betrays his prejudice.
Because the status of children is involved, he asserts, the issue ceases to be a free speech issue.
Suddenly, the conflict ceases, because one value is self-evidently more important than the other.
The High Art Slur
I appreciate that a newspaper article isn’t the best opportunity for Rundle to explain the logic of his argument.
However, I wish that it had been a bit easier to follow.
OK, so Rundle assumes that the defenders of Henson will resort to the defence that Henson is pure and his images will only be displayed in galleries and art magazines.
Rundle reckons that they’re wrong because “the special status accorded gallery artists is simply a hangover of the exhausted high art/mass art distinction”.
At this point in his argumant, Rundle implies that he is vaguely embarrassed about his membership of an apparent elite and wishes to rescind his membership.
Later, he asserts that this elite is attempting to seek an “artistic privilege”.
In doing so, the supposed elite is out of step with mainstream society.
The radical wishes to become a populist.
The Limits of Permissiveness
Rundle is probably right when he asserts:
“People like child protection laws. The existence of a permissive society relies on law limiting the exploitation that it brings.”
This paragraph probably says most about the sophistication of his views.
Starting at the back end, we all object to the exploitation of children.
This is probably an issue on which the Left and the Right can agree (although it would have been nice if it had taken less then a century for the economic exploitation of children to cease).
However, ultimately, what the people like is Laws like the child protection laws.
This is where Rundle is most lacking in his analysis.
You don’t get any sense that Rundle knows what these Laws prohibit or exempt.
In particular, Rundle doesn’t seem to know how these Laws treat or exempt Art as they currently stand on the statute books and bind all of us.
What the Law Actually Says
Bill Henson is subject to New South Wales law.
The NSW Legislature has enacted a Law that it thought was necessary and appropriate to defend the interests of children in the context of pornography.
And it is that Law that we should all be concerned about enforcing.
Firstly, it must be said that the Law was expressly enacted to protect children from being used for pornographic purposes.
This, presumably, is the Law that Rundle thinks people like.
Yet, this Law itself contains an exemption for Art.
Artists Don’t Have to Change the Existing Law
It is not a matter of the artistic elite seeking an exemption from the Law or some unique “artistic privilege” that does not already exist.
The artistic elite (and any artist for that matter, no matter how high or low their brow) is entitled to the exemption contained in the Law that has been enacted, provided that they can satisfy the terms of the exemption.
If Henson is charged, then he is entitled to prove that the exemption applies to him.
He will have to argue, not that the Law doesn’t apply to him, but that the legal exemption contained within the Law does.
To constitute “child pornography”, Henson’s photgraphs would have to depict a person under (or apparently) under the age of 16 years in a sexual context in a manner that would in all the circumstances cause offence to reasonable persons.
If this basic offence was proven, then Henson would be entitled to rely on a statutory defence that he was acting for a genuine artistic purpose and his conduct was reasonable for that purpose.
In deciding to prosecute, the Director of Public Prosecutions has to decide whether he can successfully prove the charge and deny the defence.
Today’s decision shows that he thinks he can’t.
The Law has worked to achieve the goals set for it by the NSW Parliament when the Law was enacted.
If anybody doesn’t like it, they can lobby to change the Law, and no doubt they will.
Hopefully, we won’t see picketing and harassment of people who are working within their legal rights.
As for Rundle, I hope he enjoys his new bedfellows!