There is a widespread misconception about the government’s bill to “strengthen artistic expression”. Some believe it closes a loophole. Others believe that, even if it’s unnecessary, it can’t do much harm. As Sir Humphrey might say, that’s courageously optimistic.
The amendment has the opposition’s support but it is based on a retrograde interpretation of the law. It turns the right to freedom of artistic expression on its head. It’s difficult to see how the amended law could be workable.
The bill takes an article in the criminal code, (339(1)(e)), which forbids insult and threats, and specifies it excludes artistic, satirical and comic expression. However, by specifying an exception, the government has, therefore, endorsed the idea that this law can be used to prosecute anyone else.
The consequences are absurd. If the bill becomes law, most people will still risk prosecution if they call Pastor Gordon John Manché an ‘asshole’ on their personal Facebook page. But if you set up a satirical Facebook page, lo and behold, no risk.
You will still be chancing it if you hail your public bête noire as a ‘sad prick’ (to cite a Strasbourg case involving the then French president Nicolas Sarkozy). But it’s nothing to worry about if you transform your ordinary speech into lyrics.
All you have to do is double down, rhyme ‘prick’ with ‘dick’, express that artistic thought in a quatrain and sing it. If you channel your inner għannej, it’s ok – folksinging is an approved art.
It’s entertaining to envisage a river of love flowing toward Manché this summer as, overnight, we become a nation of artists, satirists and comics. But there’s a lot wrong with a bill that renders itself meaningless as, soon, everyone can count as an artist.
If everyone’s an artist, what’s the point of the exception? Or will the police be expected to scrutinise our artistic, satiric or comic credentials? Some progress.
Four things are wrong with this bill. First, it’s unnecessary. Our constitution already protects artistic expression through the European Convention of Human Rights, which overrides any other law.
There’s no need to appeal to artistic expression. Strasbourg has ruled that curtailing free speech must be reasonably justifiable in a democratic society.
Moreover, the law the police used to prosecute Manché’s critics allows a margin for insult if it is proportionate to provocation.
The police should never have initiated the prosecution. By no reasonable measure does calling someone an asshole justify the curtailing of democratic freedom. Nor is the insult out of proportion to what provoked it (Manché reportedly called gay sex an abomination).
Second, the bill is based on a retrograde understanding of free speech and democratic freedoms.
Article 339 is self-evidently meant to cover private altercations, not democratic debate. Its sub-articles include forbidding setting your dog on people, emptying a bucket of water in their direction and throwing stones or hard objects into their property.
It’s in this context that insult (the Maltese word, inġurji, connotes strong insult) is outlawed – unless it’s proportionate to provocation.
If everyone’s an artist, what’s the point of the exception? Or will the police be expected to scrutinise our artistic, satiric or comic credentials?- Ranier Fsadni
In democratic debate, it makes no sense to speak of insult that’s proportional to provocation. How would a police inspector or a judge decide what level of insult is proportionate to environmental pillage, an excessively low minimum wage, a short spring hunting season, political hypocrisy or biblical views about sexual morals? Only the established limits of free speech can decide that. And they permit outrageous, provocative, shocking and virulent language.
Our parliament, however, has endorsed shrinking those limits. Its self-styled progressive amendment is based on a regressive idea of free speech.
Third, it turns the actual principle of freedom of artistic expression on its head. Beyond Malta, judicial authorities have protected artistic expression by saying it enjoys the benefits of ordinary speech. Free artistic expression rests on liberties that everyone enjoys.
Parliament, however, is saying artists get to enjoy a measure of free speech that the rest of us don’t have. In the name of giving artists protection that, in fact, they already have, parliament is weakening the free speech protections of the rest of us.
Or, rather, it’s allowing obstacles to get in the way of the exercise of our free speech. The use of article 339 to curtail debate would eventually be scoffed at in Strasbourg but many of us would be discouraged from embarking upon that long trek. That’s why this unnecessary bill isn’t harmless.
Fourth, because the bill is based on a perverse relationship between artistic speech and ordinary free speech, it’s hard to see how it could be made to work.
Artists are always pushing the boundaries of what counts as art. The best satire is po-faced. Comics like to trespass into bad taste. Will we have the police decide the boundaries? In 2009, they prosecuted a short story writer and his editor because the police thought the story didn’t look like fiction.
What will count as art? Artists can’t be licensed. Will something be deemed art, satire or comedy if it’s done in the ‘proper’ place (a gallery, stage or approved publication)? That would be a violation of real freedom of artistic expression, interfering with how one engages with the public.
No difficulty would arise if we had a parliament that understood free speech and stood up for it.
We wouldn’t need to ask if something is art but only if it crosses the established Strasbourg thresholds for any speech.
Instead, we’ve got a bill that’s unnecessary, chips away at free speech and, in practice, might even require the police to poke their noses into what’s art. Progressive? Yes, sure.