Progress thrives with free speech and tolerance, even of intolerance
By Michael J Harakis
WHEN asked about her position in relation to the now infamous paintings of Mr Gavriel which include various depictions of Christ, George Grivas being peed on, and others of the Archbishop, the justice minister said, “in dubio pro arte”. Notably she said this was her own personal position, which she helpfully translated as “when in doubt, favour art”.
She said she believed that rights should be taken seriously, referring to the work of Dworkin, one of the towering figures in the world of people who take justice seriously. She favoured allowing works to confront the zeitgeist.
She did not go as far as Voltaire, who said that he would defend “to the death” the right of someone to say something he disagreed with. Nevertheless, she is to be commended, in my view, not only for entering such a polarised debate and introducing tempered jurisprudence to it, but for standing from a place of authority to defend liberty in the face of a mob, particularly when some of the mob are close to authority themselves.
She said she would not want to see the persecution of artists in Cyprus, as has happened to others like Ai Weiwei elsewhere.
It is odd to me that this needed to be said in Europe in 2020. The law in nearly all of Europe and North America, among other places, is entirely consistent with the minister’s position. Vast Ai Weiwei works were displayed in the Tate Modern. Indeed, two years before the UK put into domestic law the European Convention on Human Rights (ECHR) that same gallery hung a huge painting depicting the serial child murderer, Myra Hindley, composed of handprints of children.
The breadth of freedom of expression under Article 10 of the ECHR is well established and binding in this country. The rights of an artist to produce works such as those of Mr Gavriel do not even remotely cross the line into the realm of illegality. If any state authority in the continent of Europe (apart from some exceptions, including Belarus, which is not a party to the ECHR) purported to forbid viewings of those paintings, in my view, there would be a clear breach of Article 10.
What I take issue with against those on my side of the argument is that they miss the point. Mr Gavriel is being defended by the two strawmen presented to the mob, two fallacies that lend to a toxic polarity to the debate.
The first fallacy is that the state has no basis to regulate freedom of expression. There is no legal system in the world where freedom of expression is not regulated. The question is one of extent and for what legitimate purpose.
At one end we have the United States. The 1st Amendment of their constitution is considered wide enough by their Supreme Court so that a Mr Brandenberg, a KKK leader, could gather hooded members of the self-proclaimed master race in Ohio to advocate for the forced expulsion of Jews and black people from the United States. The Supreme Court said the limit of free speech is not, as previously held, where a “clear and present danger” exists, but even further away. The Court said that speech is only forbidden, if it is directed at inciting imminent lawless action and is likely to result in that happening.
US jurisprudence venerates the “marketplace of ideas”, a nod to John Stuart Mill and the notion that the best ideas prevail and bad ideas expire when they are permitted to fight each other unimpeded, a kind of philosophical Darwinism.
In contrast, in Germany, even the market in goods and services can be limited by notions of human dignity. For example, the European Court of Justice in the Omega case, accepted that Germany’s laws forbidding the objectification of people was a legitimate ground to restrict EU derived market rights of free movement of goods and services related to a game involving simulated killing.
In European human rights law, Article 10.2 expressly permits states to restrict expression for, among other things, the protection of public safety and public morals. It would be true to say that limitations are treated as exceptions, which ought to be justified in each case and any restriction should be limited to the extent strictly necessary and by means that are proportionate. Nevertheless, Article 10.2, gives Germany the margin to prohibit the sale of Mein Kampf or displays of the swastika. German law takes account of its history and its society’s sensitivities when drawing the line.
Too often those of us who advocate for rights leave it to the other side, conservative forces, to demand the carve out of exceptions. As Dworkin says, “Politicians speak of a right to free speech or dignity or equality, with no suggestion that these rights are absolute, but with no attempt to suggest their impact on particular complex social situations (my emphasis).”
The second fallacy that has been put about is that Mr Gavriel’s art is to be tried. No one is proposing to ban his art! But the rights of Mr Gavriel are not those of a mere artist. He is an educator in position of leadership in a public school.
As the cases below indicate; the United States, the UK, Canada, and many other countries specifically limit free expression to varying degrees in the context of public education.
Despite its market of ideas dogma, the US Supreme Court decided it was permissible under the 1st Amendment, for a school to discipline a student for a political speech in a school election that contained thinly disguised sexual innuendo.
The European Commission on Human Rights considered that no human rights violation occurred where a teacher in the UK was dismissed for displaying anti-abortion slogans on his clothes.
In Canada, in Ross v New Brunswick School District No 15, the Canadian Supreme Court found no violation of the Canadian Charter of Fundamental Rights when a teacher was dismissed, because in his spare time he wrote anti-Semitic books. The Canadian court said the school required the inculcation of values of tolerance in a multicultural setting, “discrimination free education” and that primary school pupils might not find it easy to distinguish the teacher’s views expressed outside the school with those he expressed inside it.
Human rights jurisprudence recognises there is a difference between a cartoonist making an offensive depiction of the prophet Mohamed and a teacher doing so in a place where he has to face Muslim children the next morning.
Like the minister, I would favour a very wide ambit of free speech, even for educators. However, I think it is perfectly proper to ask where the line should be drawn and for government and society to be properly engaged on that issue.
My own view in his defence, is that Mr Gavriel is not merely confronting the zeitgeist; he is slapping the “dead hand of past generations that is pressing upon the minds of the living” (with apologies to Karl Marx). His work should be seen in the context of an establishment prescribed narrative.
We live in a country where dozens of major avenues are named after a man who did everything to destroy the state that paved them. We have a secular state in name only, with an Archbishop with his fingers everywhere and a hand that demands to be kissed during a pandemic. Our taught history is a cultivated persecution complex, mixed with ancestor worship. I would ask any Christian who was offended to display their Christian virtue and turn the other cheek. The social fabric of our society, including our children who have access to more knowledge than ever, should be robust enough to take the assault with dignity.
That said, I question Mr Gavriel’s sensibilities as an educator, an activist and as an artist. Iconoclasm is the destruction of art, not a dialogue. To some of our citizens Mr Grivas belongs to the pantheon of heroes that are celebrated in blue. Some of Mr Gavriel’s students might go home to parents whose hero was expressed by their teacher as being worthy of being peed on. Could he be pushing some of them to a golden dawn?
Urination can be a powerful and highly offensive assertion of dominance.
During the liberation of Europe, General George S Patton’s Third Army built a pontoon bridge over the Rhine. Upon his triumphant arrival in the middle of the bridge, with the world’s press behind him (thankfully behind him), the General urinated into the river. This was an assertion of might. The assertion of right came with Nuremberg, and the outcry over the dehumanisation of people gave us the rights that are now the better part of our European heritage. That is our true liberation as Europeans. We never had a Nuremberg for Cyprus.
Further away, the state of New Delhi depicts Hindu gods on boulevards specifically to stop people from peeing there. The hope is that in the world’s most populous democracy, even non- Hindus might respect the deities of others.
Progress, catharsis and truth thrive with free speech and tolerance, even of intolerance. Good educators are needed to prepare our children to enter the marketplace of ideas equipped with critical minds, freely arguing the meaning of a work of art.
Education that fosters critical thought should encourage respectful, constructive dialogue with people we disagree with and to that end those of us capable of influence over the next generation should lead by example. Our streets need new names. They do not need any more deities, and our educators should celebrate freedom by crossing bridges without needing to pee over them.
- Michael J Harakis, a lawyer expressing a personal opinion