Censorship and Cultural Judgment
Issue 8, September 2008 | Bryn Dodson
A year ago it would have surprised almost everyone to learn that in 2008, police would raid an art gallery and confiscate works by one of Australia's most eminent artists and photographers, on suspicion that those works were child pornography. The passionate discussion of censorship that followed the confiscation of Bill Henson's photographs, in newspapers, on talkback radio, and even in a public meeting assembled specially for the purpose, would all have been equally unexpected. Some social liberals have been mystified by the controversy, believing that 'we' (meaning the opponents of wide-ranging censorship, particularly of high culture) argued the censorship debate against the reactionaries and philistines in the 1970s, and won. Indeed, some active participants in the current debate are still expressing surprise at it.
Surprising though the Henson controversy might have been, it was, in hindsight, naive to think that the liberalisation of Australian censorship in the 1970s and following would end all controversies. Social change is always contingent, and new forms of real or perceived harm arising from the abuse of free expression may emerge over time. Further, no matter where the line is drawn between the acceptable and the obscene, there will be cases close to the boundary which are controversial. (Indeed, the very existence of a boundary invites artists to court controversy). The fierce disputes that have taken place since the legal aspect of the Henson case eventually spent itself are, in that respect, the mark of a healthy society.
Once charges against Henson were dropped and the fiercest clamour subsided, the forum held by the National Association for the Visual Arts, Art Censorship: the Bigger Picture, gave some indication of where argument in Australia about censorship is currently situated. Interestingly, traditional questions about the line between art and pornography were peripheral to the discussion. Even Hetty Johnston, the child welfare advocate whose complaints set the controversy in motion, saw the Henson photos as artistic (though she apparently did not treat the categories of art and pornography as mutually exclusive). Rather, the debate discussed whether current censorship concerns were fundamentally, or at least significantly, different to those of the past. Clive Hamilton and Hetty Johnston argued, albeit for very different reasons, that contemporary concerns were different, while Julian Burnside QC was among those who denied the present conflict was anything but a belated skirmish in the war between liberals and reactionaries.
One of the themes of the Art Censorship forum was the almost continuous call for Henson's work to be understood in context. This emphasis can perhaps partly be explained by the fact that 'child pornography' is defined, by section 91H of the Crimes Act 1900 (NSW) to include material placing a child under 16 'in a sexual context' in a manner that would cause offence to a reasonable person. The participants differed widely, however, on the 'context' they saw as significant in understanding and critiquing Henson's work. Artist Ian Howard and curator Tony Bond strongly emphasised the unity of the artist's vision and the need to understand the more contentious aspects of that work in light of the whole. Hamilton and Johnston, on the other hand, were more concerned to identify social trends and issues, and to examine Henson's work critically in light of society's current concerns. For Johnston, the key social issue was child welfare; for Hamilton, it was the sensitivity of contemporary society to matters affecting child welfare. These speakers were concerned to pass cultural judgment on Henson's photographs not as works of art, but as artefacts which tended to elicit particular responses - political, aesthetic or otherwise. These responses or potential responses were, in turn, grounds for assessing and criticising Henson's photographs.
The matters that might make up the 'context' of an artistic work are potentially as broad and diverse as the culture in which that work is made. One way of expressing the issue that seemed to divide the participants in the Art Censorship forum is this: in examining the 'context' of a work of art for the purposes of making a cultural judgment, how far is the work to be understood on its own terms? My contention is that it is a mistake to try to disentangle cultural judgment (a phrase which I use to mean a judgment which pronounces on the legitimacy of an artistic work in a particular society, whether for legal or other reasons) from the aesthetic merits of an artistic work. I make this claim through criticism of participants in the Henson debate: I first examine Hamilton's cultural judgment on Henson, that the disputed works are in 'bad taste', and explain why I think this attack on Henson is misguided. I then examine criticism that Henson's works arouse (or even encourage) paedophiles, and argue that it is neither practical nor sound in principle to be beholden to the fear that art will be misused by those whose perversions we despise.
Clive Hamilton has been one of Henson's most persistent critics since the Henson controversy arose. That criticism is linked to his long-standing concern about 'corporate paedophilia', the sexualisation of children by commercial interests and the media: the Australia Institute released two papers on the subject while Hamilton was its Executive Director.
In an article appearing in Crikey on 23 May 2008, Hamilton objected particularly to the placement of the Henson photographs on the internet, saying 'if the photographs were seen only by the intended audience and in the gallery environment, the exhibition could fulfil its purpose without controversy'. However, by June Hamilton had seemingly toughened his line. In his contribution to the Art Censorship debate, Hamilton stated that he did not believe the Henson photographs were child pornography. However, he felt the decision to publish them 'at all' failed to take into account that:
Sex and children are a highly combustible mix, one rendered even more volatile by the relentless sexualisation of children by advertisers and the media over the last decade. The Henson exhibition cannot be isolated from an emergent social milieu in which children's maturation is increasingly drenched with erotic imagery and controlled by a commercial culture that exploits children by imposing on them adult forms of sexual desire and behaviour.
Hamilton went on to say that 'In an environment marked by widespread unease over the sexualisation of children and revulsion at paedophilia, Henson's work, whatever its artistic merit, was an exercise in bad taste, particularly [but by implication, not exclusively] when the images were uploaded to the internet'. It is striking that Hamiltons accusation of 'bad taste' is a cultural judgment that has no artistic or aesthetic content: it is a claim that rests entirely on the social context into which Henson's photographs were received.
If this cultural judgment is not an aesthetic judgment on the merits of Henson's work, what does it mean to say the photographs are in bad taste? Hamilton explains it is because in their social context, the photographs fail to address contemporary cultural concerns appropriately or sensitively. He twice draws an analogy between Henson's exhibition in contemporary Sydney and organising a Wagner concert in Israel:
For decades in post-war Israel performances of works by Richard Wagner were banned. The associations between Nazi Germany and Wagner's music were too strong in the minds of most Israelis. 
In the same way, Hamilton argues, the associations between naked children and their exploitation by paedophiles is simply too strong in the minds of most Australians to countenance an exhibition involving a depiction of a naked child:
In such a cultural environment, the naked body of a child, particularly a girl of 12 showing the first signs of sexual development, can no longer be viewed 'innocentlyâ?, and cannot but be seen by everyone, other than hermits, in a sexual context. 
Even if Hamilton is correct in his claims about our present cultural environment, however (and that is of course contestable) his argument is open to two objections. The first is that by accusing genuine artists of bad taste for representing a child's or adolescent's body, Hamilton is effectively suggesting that it would be in better taste not to produce those kinds of representations. However, that attitude seems to require that artists abandon the field to the corporate paedophiles whose output he detests. It seems Hamilton is saying that artists should not produce certain kinds of art because our culture has given certain elements of that art a pre-determined meaning.
If artists were to accept Hamilton's perceptions of community concern and refuse to depict naked children, the problem would not simply be that artists self-censored with regard to a particular subject. The power that artists would be ceding to corporate interests would not simply be the power to control subject-matter, but the power to contest meaning. If it were inappropriate for an artist to depict a naked child because of societal sensibilities, and artists did not do so, the meaning of depicting a naked child would be finally determined by our culture: such a depiction would invariably be a forbidden or pornographic image, an object of desire for paedophiles. It is precisely to resist these kinds of readings that we need artists who are capable of examining childhood and adolescence in ways that defy simplistic assumptions, even if their art necessarily offends those are too suspicious or too blinded by preconceptions to see it in light of the artist's intention as expressed in the work.
I have seen the Henson exhibition (on the internet) and it seems to me that it does resist the simplistic treatment of the youthful body generated by our popular culture. It is not difficult to see why many are offended by it: the often-used word 'confronting' is apt to describe the images of adolescents in particular. However, I cannot see how we would be better off without Henson's work. Hamilton is justly concerned with the power of corporate interests in our society, and has done more than most to publicise the problem and propose meaningful ways to address it. But by ascribing hegemonic power over the production of meaning to a coterie of marketers and advertisers, he attributes to them more power than they have; by taking his advice, we would offer them still more.
Secondly, Hamilton believes the sensitivity of society generally to this new 'milieu' or cultural environment is at least partly 'an over-compensation by society for its complicity in sanctioning the sexualisation of childhood'. If Hamilton is correct, the trend of 'over-compensation', as he describes it, seems to me more than a little hypocritical. The intense sensitivity that accompanies child protection issues and the issue of paedophilia has been accompanied by very little concrete action against those who exploit children for their own commercial ends ' a fact acknowledged by the Australia Institute's first report and one which the recent Senate report seems unlikely to remedy. If that is the case, why should the work of an artist such as Henson, which pays little regard to these sensitivities, be called into question for failing to conform to the prevailing hypocrisy?
Essentially, this point is a way of restating the platitude that an artist's role is to challenge society. Platitude or not, however, the point remains important, and Hamilton does not explain why an artist should refrain from producing works that may cause offence to some, unless one assumes artists should seek to avoid offending deeply-held sensibilities. (On the other hand, there is force to Hamilton's quite different point, that some of the promotion of Henson's work seems to have been calculated to create just this sort of controversy, and to that extent it is hypocritical to express outrage when public anger and disgust is in fact aroused.)
Hamilton is contemptuous of those he sees as having lost sight of the real debate on free speech and morality. He describes '[t]he libertarian outpourings in support of Henson and artistic freedom' as 'curiously obsolete'. It may well be true (and I believe it is) that corporate paedophilia is now a pressing concern in Australia. However, to reclaim culture from corporate interests, we will need art which is capable of supplying alternative ways of understanding childhood and sexuality than those supplied to us, pre-packaged, by advertisers. We will also need artists who are fearless in provoking our sensibilities and examining our prejudices. Hamilton's attack on corporate paedophilia cannot be purely negative if it is to succeed: we must articulate a language in which to explore the concept of childhood, and express our understanding of and aspirations for childhood. That language must resist the vacuous, if not outright destructive, influences of the advertising of our time. Whether he realises it or not, Hamilton needs artists like Henson.
Much of the concern surrounding Henson's work has related to the belief that his photographs will encourage deviancy in paedophiles, or even arouse such tendencies in those who might not previously have experienced them. Writing in the Australian, Phillip Adams claimed (in an article that otherwise defended Henson) 'there's little doubt that among those who crowd [Henson's] exhibitions, camouflaged by sophistication of the setting, are pedophiles'. Some warnings have been even direr, such as those of Channel Seven Morning Show presenter Jo Lamble:
People who would never cross the line in the past, they would never have sought out photos of naked children are now doing it because it's so accessible â?¦ They might look at something like [Henson's photographs] and think: 'Oh, OK, well that's art, so that's OK, it's tasteful', but it can give them the taste for it.
These concerns raise the question: how far is it possible or sensible to censor what art is publicly available by reference to the most perverted members of society? It is worth remembering that the law's test for obscenity was, until a few decades ago, whether a publication would tend to deprave or corrupt those among its audience who were susceptible to lewd influences. That approach resulted in the banning of not only pornography, but serious novels: since the only question was whether the work might arouse inappropriate thoughts in the vulnerable, no amount of artistic merit was a defence.
To take one example: in 1957, the High Court split three judges to two on whether certain American comic books, which showed women and men doing nothing more explicit than kissing and embracing, were obscene. The majority of the Court found the comic books were not obscene, at least partly because 'virtue never falters and right triumphs', and because they tended to end in marriage. However, one dissenting judge, Justice Webb, identified a class of vulnerable people to whom these patently harmless comics posed a threat: disturbed girls committed to an industrial home. This example may look absurd through modern eyes, but the point is that if one is determined to call some publication into question, there will always be a group of people that one can point to as endangered by an inappropriate viewing of that publication. Often, historically, this group is the young. Of course there are always legitimate concerns about the exposure of children to material which may disturb them, or which is not appropriate for their age and level of development. However, our system of censorship deals with those concerns, not by banning works which are unsuitable but by placing warnings and, in some cases, controls which prevent children from being exposed to that material, without unduly restraining consenting adults from seeing it.
If, as a society, we really believe that Henson's work is not pornographic except to those with the deviant tendency to find sexual arousal in inappropriate places, then the existence of such people is not good grounds to ban his work. It is objectionable in principle that control of artistic expression in a free society should not rest in the considered views of that society, but should be exercised by granting a veto to the perverted. This principle helps to explain why a publication must cause offence to a 'reasonable person' to constitute child pornography. The test does not criminalise any controversial work to which a person might take offence (or Henson would already have been jailed). Rather, it ensures that the sexual content of a work is not considered in isolation from the kinds of cultural judgments a reasonable person in our community might make about it. Without such a restriction, a memoir which recounted a childhood of abuse would constitute child pornography, since it would place a child in a sexual context. The 'offence to a reasonable person' requirement ensures that if a work's only or predominant appeal is to consumers of child pornography, or it is blatantly exploitative, then its production or publication is criminal. A 'reasonable person' test is obviously one on which people will disagree fiercely. However, to make a judgment based on that test, there is no avoiding consideration of the merits of the work itself, however difficult it might be to achieve consensus. Whether or not this test is the best that could be devised, it has the merit that cultural judgment remains in the hands of the reasonable person, and not in the hands of the depraved.
Further, if the sole enquiry in making a cultural judgment concerns what arouses paedophiles, the scope of the examination could be wide indeed. The Australia Institute's first report on the sexualisation of children summarises research to the effect that paedophiles generate their own erotic materials from innocuous sources. It is neither practical, nor appropriate, to attempt to ban publications for their effect without some clear evidence of a link between a publication and the claimed harm, and a means of addressing that harm without unduly interfering with other interests, including free speech. In doing so, the criteria cannot be set by those whose interpretations of artistic works we do not accept, endorse, or comprehend.
If there is a common thread in what I have been criticising, it is to be found in the failure of those passing cultural judgment to engage with Henson's work. Hamilton offers a judgment on Henson's work expressly independent of its artistic merit. Others simply state the effect that, in their view ' and without offering a shred of evidence ' the photographs will have on fringe elements of our society. I contend, by contrast, that it is only by engaging with Henson's work that we are in a position to judge it. If it fails on its own terms as a work of art, if it has technical failings or treats its themes crudely, it can be criticised. If it is child pornography, the artist and the gallery can be prosecuted. But an attack on the legitimacy of an artistic work should not be, as some have tried to make it, an activity unrelated to any critical engagement with the work itself. As I have tried to show, such an approach is self-defeating. Culture, like nature, abhors a vacuum, and singling out the work of an artist like Henson for criticism and potential criminal sanction undermines many of the aims of his detractors.
Bryn Dodson graduated from the University of Western Australia with degrees in arts and law. He currently works in a law firm in Perth.
- Organised by Watch on Censorship in association with the National Association for the Visual Arts. Art Censorhip: The Bigger Picture can be viewed at https://www.themonthly.com.au/tm/node/1054. Its participants were David Marr, Ian Howard, Tony Bond, Hetty Johnson, Julian Burnside QC and Clive Hamilton.
- For instance, Clive Hamilton: his contribution to the forum referred to at n 1 above, 'Defending the Last Taboo: A contribution to Art Censorship: the Bigger Picture forum' is also available https://www.clivehamilton.net.au/cms/media/documents/articles/defending_the_last_taboo.pdf, 4.
- Distilling Hetty Johnston's position into a set of propositions causes some difficulty: see above, n 1.
- E Rush and A LaNauze Corporate Paedophilia: The Sexualisation of Children in Australia, Discussion Paper No.90, October 2006, and E Rush and A LaNauze Letting Kids Be Kids: Stopping the Sexualisation of Children in Australia, Discussion Paper No.93, December 2006, both available https://www.tai.org.au/?q=node/8.
- See C Hamilton https://www.clivehamilton.net.au/cms/media/documents/articles/henson_fracas__art_the_victim_of_child_sexualisation.pdf.
- Above n 2.
- C Hamilton 'Art or porn is not the question' Crikey 26 May 2008, available https://www.crikey.com.au/Media-Arts-and-Sports/20080526-Hamilton-Art-or-pornography-is-not-the-question.html. The analogy is also used in his Art Censorship contribution, above n 6.
- Above n 7.
- At the time of writing, the Henson exhibition can be seen at the Roslyn Oxley9 gallery website: https://www.roslynoxley9.com.au/.
- Above n 6, 1.
- E Rush and A LaNauze Corporate Paedophilia: Sexualisation of Children in Australia Discussion Paper No 90 (Canberra: The Australia Institute, 2006) 51. Available https://www.tai.org.au/?q=node/8&offset=2.
- Above n 6, 4.
- P Adams 'Lock up Lewis Carroll' The Australian, 27 May 2008.
- 'Bill Henson naked child photo dangerous: psychologist' The Australian, 23 May 2008.
- R v Hicklin (1868) LR 3 QB 360, 371.
- See, for instance, the infamous Love Me Sailor trial of Australian novelist Robert Close: R v Close  VLR 445, the numerous prosecutions of Erskine Caldwell's God's Little Acre such as Kyte-Powell v William Heinemann Ltd  VR 425; and the self-explanatory Re Lolita  NZLR 542.
- Transport Publishing Co Pty Ltd v The Literature Board of Review (1957) 99 CLR 111, 126-130 (Justice Webb). In the same case, Justice MacTiernan said (124), Some of the publications, of course, are less evil than others, but all are distinctly evil'
- In Re Lolita, above n 16, 570-571 it was warned that Nabokov's classic 'could become a subject of conversation and discussion in adolescent gatherings that are by no means devoted to literary studies'.
- Above n 10, 40-41.