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Anthony Julius

Art’s Troubles

I

Duly acknowledging that the plural of anecdote is not data, I begin with some stories drawn from the recent history of liberal democracy.

• In November 2010, the Secretary of the Smithsonian Institution removed an edited version of footage used in David Wojnarowicz’s short silent film A Fire in My Belly from “Hide/Seek: Difference and Desire in American Portraiture” at the Smithsonian’s National Portrait Gallery after complaints from the Catholic League, and in response to threats of reduced federal funding. The video contains a scene with a crucifix covered in ants. William Donohue of the Catholic League claimed the work was “hate speech” against Catholics. The affair was initiated by an article contributed to the Christian News Service, a division of the Media Research Center, whose mission is to “prove — through sound scientific research — that liberal bias in the media does exist and undermines traditional American values.”

• In October 2015, Dareen Tatour, an Israeli Arab from a village in the Galilee, was arrested. She had written a poem: “I will not succumb to the ‘peaceful solution’ / Never lower my flags / Until I evict them from my land.” A video clip uploaded by Tatour shows her reading the poem, “Resist, my people, resist them,” against the backdrop of masked people throwing rocks and firebombs at Israeli security forces. The day after the uploading, she posted: “The Islamic Jihad movement hereby declares the continuation of the intifada throughout the West Bank…. Continuation means expansion… which means all of Palestine. And we must begin within the Green Line… for the victory of Al-Aqsa, and we shall declare a general intifada. #Resist.” In 2018, Tatour was given a five months’ jail sentence. In May 2019, her conviction for the poem was overturned by the Nazareth District Court, but not the conviction for her other social media posts. The poem, said the court, did not “involve unequivocal remarks that would provide the basis for a direct call to carry out acts.” And the court acknowledged that Tatour was known as a poet: “freedom of expression is [to be] accorded added weight when it also involves freedom of artistic and creative [expression].” The Israeli Supreme Court rejected the state’s motion for appeal.

• In 2017, the artist Sam Durant made a public sculpture, “Scaffold,” for location in the open grounds of the Walker Art Center in Minneapolis. It was an unpainted wood-and-metal structure, more than fifty feet tall, with a stairway that led to a platform with a scaffold. The work referred to seven executions between 1859 and 2006, including the execution in 1862 of thirty-eight Dakota-Sioux men. Protesters demanded the work’s destruction: “Not your story,” “Respect Dakota People!” “$200.00 reward for scalp of artist!!” Following mediation, the work was surrendered to the activists, who reportedly dismantled it, ceremonially burning the wood. Art critics endorsed the protest: “In general it’s time for all of us to shut up and listen.” “White Americans bear a responsibility to dismantle white supremacy. Let it burn.” The artist himself denied that he had been censored. “Censorship is when a more powerful group or individual removes speech or images from a less powerful party. That wasn’t the case. I chose to do what I did freely.”

• In April 2019, three Catholic priests in the Polish city of Koszalin burned books that they said promote sorcery, including one of J.K. Rowling’s  Harry Potter  novels, in a ceremony that they photographed and posted on Facebook. The books were ignited as prayers were said and a small group of people watched on. They cited in justification of the ceremony passages from Deuteronomy (“The graven images of their gods shall ye burn with fire”) and Acts (“Many of them also which used curious arts brought their books together and burned them before all men”). In August of the same year, a Roman Catholic pastor at a school in Nashville, Tennessee banned the Rowling novels: “These books present magic as both good and evil, which is not true, but in fact a clever deception. The curses and spells used in the books are actual curses and spells; which when read by a human being risk conjuring evil spirits into the presence of the person reading the text.”

• In August 2019, the release of the film The Hunt, in which “red state” Americans are stalked for sport by “elite liberals,” was cancelled. Donald Trump had tweeted: “Liberal Hollywood is Racist at the highest level, and with great Anger and Hate! They like to call themselves ‘Elite,’ but they are not Elite. In fact, it is often the people that they so strongly oppose that are actually the Elite. The movie coming out is made in order to inflame and cause chaos. They create their own violence, and then try to blame others. They are the true Racists, and are very bad for our Country!” The studio explained: “We stand by our film-makers and will continue to distribute films in partnership with bold and visionary creators, like those associated with this satirical social thriller, but we understand that now is not the right time to release this film.” Nine months later, with a new marketing campaign, the film duly appeared. The director explained: “The film was supposed to be an absurd satire and was not supposed to be serious and boring……. It’s been a long road.”

• In Germany, a Jewish activist has been litigating to have removed a thirteenth-century church carving of the Judensau, or “Jewish pig,” an infamous trope of medieval anti-Semitism, from the outer wall of the main church in Wittenberg. A memorial plaque installed in November 1988, containing in Hebrew words from Psalm 130, “Out of the depths, I cry to you,” does not satisfy the litigant. The district court ruled that the continued presence of the carving did not constitute evidence of “disregard for Jews living in Germany.” The judgment was upheld this year by the Higher Regional Court: the presence at the church of both a memorial to the Holocaust and an information board that explains the Judensau as part of the history of antisemitism justified retaining the carving. The campaign to remove the carving has Christian clerical support: “The Judensau grieves people because our Lord is blasphemed. And also the Jews and Israel are blasphemed by showing such a sculpture.” A local Jewish leader took a different position: “It should be seen within the context of the time period in which it was made,” he argued. “It should be kept on the church to remind people of antisemitism.”

• Two years ago the artist Tomaz Schlegl built a wooden statue of Trump in Moravce, Slovenia. It was a twenty-six-foot tall wooden structure that had a mechanism to open Trump’s red painted mouth full of pointy teeth. The artist explained that the figure has two faces, like populism. “One is humane and nice, the other is that of a vampire.” He explained that he had designed the statue “because people have forgotten what the Statue of Liberty stands for.” The Trump-resembling statue wasn’t actually Trump, but “I want to alert people to the rise of populism and it would be difficult to find a bigger populist in this world than Donald Trump.” It was burned down in January 2020. The mayor of the town, deploring the arson, commented: “This is an attack against art and tolerance…. against Europe’s fundamental values.”

There is something arbitrary about this group of stories — others could have been chosen, without any loss of coherence in the picture of contemporary artistic freedom. There was the campaign against Dana Schutz’s painting of Emmett Till at the Whitney Museum, against Jeanine Cummins’ novel American Dirt, against Woody Allen’s film deal with Amazon, which was cancelled, and against his memoir, which was cancelled by one publisher but published by another one. There was the decision by the National Gallery of Art and three other major museums to delay until at least 2024 the Philip Guston retrospective planned for 2020, so that “additional perspectives and voices [can] shape how we present Guston’s work” (museum-speak for “we will submit our proposals to a panel of censors”). And though they are all recent stories, the larger narrative is not altogether new. In 1999, Mayor Rudolph Giuliani took exception to certain works in an exhibition at the Brooklyn Museum, notably Chris Ofili’s painting The Holy Virgin Mary. The mayor relied on a newspaper report: the Virgin was “splattered” with elephant dung, the painting was offensive to Catholics, the museum must cancel the show. (The museum offered to segregate some pictures and withdraw Ofili’s, but the mayor responded by withholding funds and terminating the museum’s lease. The museum injuncted him; the city appealed; it then dropped the appeal. The Jewish Orthodox Agudath Israel intervened on the mayor’s side.) In 2004, in Holland, the Dutch filmmaker Theo van Gogh was shot dead in Amsterdam by Mohammed Bouyeri, a 26-year-old Dutch-born Muslim who objected to the film Submission that Van Gogh had made earlier that year, with Ayaan Hirsi Ali, about violence against women in Islamic societies; the assassin left a note to Hirsi Ali pinned by a knife to the dead man’s chest. And in 2005, in Denmark, there occurred the cartoons affair. In response to an article about a writer’s difficulty in finding an illustrator to work on a book about Mohammed, the newspaper Jyllands-Posten  published twelve editorial cartoons, most of them depicting him. There was no immediate reaction. The Egyptian newspaper Al Fagr republished them, with no objection. Five days later, and thereafter, there were protests by fax, email, and phone; cyber-attacks, death threats, demonstrations, boycotts and calls to boycott, a summons to a “day of rage,” the withdrawal of  ambassadors, the burning of the Danish flag and of effigies  of Danish politicians, the exploding of car bombs, appeals to the United Nations, and deaths — about 250 dead in total and more than 800 injured. A decade later, when similar cartoons were published in the French satirical magazine Charlie Hebdo, its staff was massacred in its offices in Paris.

There is more. Behind each story, there stand others — behind the Allen stories, for example, there is the Polanski story and the Matzneff story. And behind those, some more foundational stories. In 1989, the Ayatollah Khomeini issued his fatwa against Salman Rushdie and his novel The Satanic Verses, which had already been burned in Muslim protests; there followed riots and murders, and the writer went into hiding for years. (The threat to his life subsists.) Also, in 1989, the Indian playwright and theater director Safdar Hashmi was murdered in a town near Delhi by supporters of the Indian National Congress Party; the mob beat him with iron rods and police batons, taking their time, unimpeded. In the United States in those years, there occurred, among other depredations against literature and the visual arts, the cancelling of the radio broadcast of Allen Ginsberg’s poem Howl; the campaign against Martin Scorsese’s film The Last Temptation of Christ; the political, legal, and legislative battles over Robert Mapplethorpe’s The Perfect Moment and Andres Serrano’s Piss Christ, and over Dread Scott’s What is the Proper Way to Display the United States Flag?; the dismantling of Richard Serra’s site-specific Tilted Arc; and the campaign against Bret Easton Ellis’ novel American Psycho. There were bombings, boycotts, legislation, administrative action, the ripping up on the Senate floor of a copy of Piss Christ by a senator protesting the work on behalf of “the religious community.”

Not all these stories have the same weight, of course. But taken together these episodes suggest that new terms of engagement have been established, across political and ideological lines, in the reception of works of art. The risks associated with the literary and artistic vocation have risen. New fears, sometimes mortal fears, now deform the creative decisions of writers and artists. Literature and the visual arts have become subject to a terrible and deeply illiberal cautiousness. (As a Danish imam warned the publisher of the cartoons, “When you see what happened in Holland and then still print the cartoons, that’s quite stupid.”) The interferences with what Joseph Brodsky called literature’s natural existence have grown brutal, overt, proud. We have witnessed the emergence of something akin to a new censorship conjuncture.

There are ironies and complications. This new era of intolerance of, and inhibition upon, literature and the visual arts has occurred in the very era when the major ideological competitor to liberalism collapsed, and with it a censorship model against which liberal democracies measured their own expressive freedom. Or more precisely and ironically, in the era when the Berlin Wall and Tiananmen Square occurred within months of each other — the former exemplifying the fall of tyranny, the latter signifying the reassertion of it. When China conceived the ambition to become the major economic competitor of the capitalist liberal democracies, it also initiated a censorship model to which over time the greatest private corporations of these same liberal democracies would defer. Since artworks are also products that sell in markets — since filmmakers need producers and distributors, and writers need publishers and booksellers, and artists need galleries and agents — they are implicated in, and thus both enabled and constrained by, relations of trade and the capitalist relations of production. Corporations will both accommodate censoring forces and be their own censors. As their respective histories with the Chinese market show, the technology corporations tend to put commercial interests before expressive freedoms. And that is another irony: this assault on art took place even as the World Wide Web, and then the Internet, was invented, with its exhilarating promises of unconfined liberty. But the new technology was soon discovered to have many uses. As Rushdie remarked in Joseph Anton, his memoir of his persecution, if Google had existed in 1989 the attack on him would have spread so swiftly and so widely that he would not have stood a chance.

And all the while a new era of illiberalism in Western politics was coming into being, for many reasons with which we are now wrestling. 1989 marked the moment when liberalism’s agon ceased to be with communism and reverted instead to versions of its former rivals: communitarianism, nationalism, xenophobia, and religious politics. New illiberal actors and newly invigorated illiberal communities, asserted themselves in Western societies, as civil society groups came to an understanding of a new kind of political activity. So if one were to ask, when did art’s new troubles begin, one could answer that they began in and around that single complex historical moment known as 1989. And these contemporary art censorship stories differ from older arts censorship stories in significant ways.

II

All these stories are taken from the everyday life of liberal democracies, or more or less liberal democracies. In not one of these stories does an official successfully interdict an artwork. There are no obscenity suits among them. With just one exception, there are no philistine judges, grandstanding prosecutors, or meek publishers in the dock. Customs officials are not active here, policing borders to keep out seditious material. There are no regulators, reviewing texts in advance of publication or performance. So how indeed are they censorship stories at all? We must reformulate our understanding of censorship, if we are to understand the censorship of our times.

“Censorship” today does not operate as a veto. It operates as a cost. The question for the writer or the artist is not, Can I get this past the censor? It is instead, Am I prepared to meet the burden, the consequences, of publication and exhibition — the abuse, the personal and professional danger, the ostracism, the fusillades of digital contempt? These costs, heterogeneous in everything but their uniform ugliness, contribute to the creation of an atmosphere. It is the atmosphere in which we now live. The scandalizing work of art may survive, but few dare follow.

Censorship today, in its specificity, must be grasped by reference to these profiles: the censoring actors, the censoring actions, and the censored. With respect to the censoring actors, we note, with pre-1989 times available as a contrast, that there has taken place a transfer of censoring energy from the state to civil society. In the West, certainly, we do not see arrests, raids, municipal and central government actions such as the defunding or closure of galleries, prosecutions and lawsuits, or legislation. Insofar as the state plays a part, it tends to be a neutral spectator (in its executive function) or as a positive restraint on censorship (in its judicial function). In respect of civil society, however, there has occurred a corresponding empowerment of associations, activists, confessional groups, self-identified minority communities, and private corporations. The censors among the activists are driven by the conviction that justice will be advanced by the suppression of the artwork. Their interventions have a self-dramatizing, vigilante quality. Artworks are wished out of existence as an exercise of virtue. The groups are very diverse: “stay-at-home moms” and “military veterans” (disparaged by “liberal Hollywood”), policemen (disparaged by rapper record labels), social justice warriors, and so on. Their censorings do not comprise acts of a sovereign authority; they have a random, unpredictable, qualified character, reflecting fundamental social and confessional divisions. As for the corporations, when they are not the instrument of activists (Christian fundamentalists, say), their responses to activists, foreign governments, and so on tends towards the placatory.

Correspondingly, with respect to censoring actions,  we find a comparable miscellany of public and private  (when not criminal) initiatives in place of administrative  and judicial acts of the state. The activists, right and left,  have available an extensive repertory of tactics: demonstrations, boycotts, public statements, digital denunciations, petitions, lethal violence, serious violence, and threats of  violence, property destruction, disruptions and intimidations,  mass meetings, marches, protester-confrontations, pickets, newspaper campaigns. As for corporations, the tactics, again, have become familiar: refusals to contract, and terminations of employment, publishing, and broadcasting contracts already concluded; editing books and films in accordance with the requirements of state authorities in overseas markets.

In all these instances, the wrong kind of attention is paid to an artwork — hostile, disparaging, dismissive. There is no respect for the claims of art; there is no respect for art’s integrity; there is no respect for artmaking. Art is regarded as nothing more than a commodity, a political statement, an insult or a defamation, a tendentious misrepresentation. If it 

is acknowledged as art, it is mere art — someone’s self-indulgence, wrongly secured against the superior interests of the censoring actors. All these actions are intended to frighten and burden the artist. And so artists and writers increasingly, and in subtle ways, become self-censoring — and thereupon burden other artists and writers with their own silent example. Self-censorship is now the dominant form of censorship. It is a complex phenomenon and hard to assess — how does one measure an absence? But recall the Jewel of Medina affair of 2008, the novel about one of the Prophet Mohammed’s wives that was withdrawn by Random House because it was “inflammatory.” Who now would risk such an enterprise? Instead we are, with rare exceptions, living in an age of safe art — most conforming to popular understandings of the inoffensive (or of “protest”), a few naughtily transgressive, but either way without bite.

As for the censored: what we have described as the given problem of censorship — the heterogeneity of civil society censoring actors; the retreat of the state from censoring activity; the collapse of the Soviet Union as the primary adversary of a liberal order; the emergence of China as a powerful, invasive, artworld-deforming censor; the absence of any rule-governed censorship — has meant, among other things, that the pre-1989 defenses against censorship, such as they were, no longer work. They were deployed in earlier, more forensic times, when the state, the then principal censoring actor, was open to limited reasoned challenge, and when civil society actors were subject to counter-pressure, and were embarrassable. Essential values were shared; appeals could be made to common interests; facts were still agreed upon.

*

Art now attracts considerable censoring energy. There is no other discourse which figures in so many distinct censorship contexts. It attracts the greatest number of justifications for censorship. We may identify them: the national justification — art, tied up with the prestige of a nation, cannot be allowed to damage that prestige; the governing-class justification — artworks must not be allowed to generate inter-group conflict; the religious justification — artworks must not blaspheme, or cause offense to believers; the capitalist justification — artworks must not alienate consumers, or otherwise damage the corporation’s commercial interests.

Yet the properties of art that trouble censors are precisely the properties that define art. An attack on a work of art is thus always an attack on art itself. What is it about art works that gets them into so much trouble? We begin with the powerful effect that works of art have on us. We value the works that have these effects — but they also disturb us, and the trouble that art gets into derives from the trouble that art causes. The arts operate out of a radical openness. Everything is a subject for art and literature; everything can be shown; whatever can be imagined can be described. As the literary critic Terence Cave observed, fiction demands the right to go anywhere, to do anything that is humanly imaginable.

Art works are playful, mischievous; they perplex, and are elusive, constitutively slippery, and therefore by their nature provocative. Art serves no one’s agenda. It is its own project; it has its own ends. This has an erotic aspect: playfulness has its own force, its own drive. Art preys upon the vulnerabilities of intellectual systems, especially those that demand uniformity and regimentation. Art is disrespectful and artists are antinomian. The artist responds to demands of fidelity, Non serviam. He or she is consecrated to a resolute secularity and an instinct to transgress boundaries: the writer makes the sacred merely legendary, the painter turns icons into portraits. (The religious artist does not altogether escape this effect.) It makes sense to say, “I am a Millian” or “I am a Marxist,” but it does not make sense (or not the same sense) to say, “I am a Flaubertian” or “I am a Joycean.” The opinions that may be mined are typically amenable to contradictory interpretations — they invite contradictory interpretations. And let us not overlook the obvious: parody and satire, comedy and farce, are aesthetic modes. Laughter lives inside literature.

Identity politics tends to be fought out on the field of culture because identity is among art’s subjects. Art confers weight and depth upon identity; and so it is no wonder that identity groups now constitute themselves in part through their capacity for censoriousness. Race politics, gender politics: art has a salient place in them, as do art controversies, in which the various communities pursue cultural grievances by denying legitimacy to certain symbolic expressions. Identity warfare is attracted to art in much the same way that class warfare is attracted to factories. Politics in our day has taken a notably cultural turn, and so art has become a special focus of controversy. Of course, low politics also plays a role in these outrages against art — the Ayatollah’s fatwa was a power-play against Saudi hegemony, and Giuliani’s protest against a sacrilegious painting was a means of distracting Catholics from his pro-choice record. But the problem cannot be reduced to such politics alone.

Unlike artists, art cannot be manipulated. Specifically, works of art are immunized against fake news, because they are all openly fabricated. Novels are openly fictional: that is their integrity. The artist is the last truth-teller. As already fictional accounts, artworks cannot be subverted by “alternative facts,” and as forms of existence with a distinctively long reach, and a distinctive endurability, they are more difficult to “scream into silence” (Ben Nimmo’s phrase for the phenomenon described by Tim Wu as “reverse censorship,” a pathology of internet inundation). But this is hardly to say that works of art — and their makers — are not vulnerable. Artworks are accessible: books can be burned, canvases can be ripped, sculptures can be pulled down. They are also susceptible to supervision — by, among others, pre-publication “sensitivity readers.” One measure of censorship’s recent advance is the phenomenon of “publishable then, but not publishable now,” and “teachable then, but not teachable now,” and “screenable then, but not screenable now.” The essayist Meghan Daum relates that when she asked a professor of modern literature whether he still taught Lolita, he replied, “It’s just not worth the risk.” This widespread attitude is of course an attack on an essential aspect of art’s existence — its life beyond the moment of its creation.

III

To whom should we look for the defense of art?

Not the state. Of course, the state should provide effective protection for its citizens who are writers and artists. But the state cannot be art’s ally, in part because of its neutrality and in part because of its partisan tendencies. Even in those states which have a tradition of government patronage of the arts, the state must not take sides on aesthetic or cultural questions. Art criticism is not one of the functions of government, and the history of art under tyrannies, secular and religious, amply shows why not. Moreover, the state, or more specifically government, has its own interests that will most certainly interfere in the free and self-determined development of art and literature: its desire for civil peace, which may cause it to intervene in cultural controversy; its privileging of religious freedom, as defined by the confessional communities themselves; its desire for the soft power that art of a certain kind gives; its majoritarian prejudices; and so on.

What is more, the arguments for state involvement in the arts usually exclude too much art, preferring instead national projects with social and economic benefits, which are usually inimical to art’s spirit. Whatever the individual artist’s debts and responsibilities to her society, as an artist she works as an individual, not a member, not a citizen. It has often, and correctly, been said that the social responsibility of the writer is to write well. When the conditions of artistic freedom are present, the artist represents only her own imagination and intellect. John Frohnmayer, the chairman of the National Endowment of the Arts during the culture wars of the late 1980s and early 1990s, mis-stepped when he wrote: “We must reaffirm our desire as a country to be a leader in the realm of ideas and of the spirit.” That is not an ambition that any writer or artist should endorse.

Not the right. Simply stated, there is no decent theory of free speech (let alone free art speech) that has come from the illiberal right in any of its various, and often contradictory, reactionary and conservative versions. We will not find a defense of free intellectual and artistic speech in the counter-Enlightenment, or in the illiberal reaction to the French Revolution, or in the conservative or reactionary movements of the late-nineteenth century and early mid-twentieth century. The very notion of free speech is problematic to those traditions. They promote authority’s speech over dissenting speech. They reject the Kantian injunction, sapere aude, dare to know; they reject its associated politics, the freedom to make public use of one’s reason. They esteem reason’s estrangement — prejudice — in all its social forms: superstition, hierarchy, deference, custom.

In the United States, to be sure, the situation is different. There is, after all, the First Amendment. Conservative articulations of freedom of speech are frequent and well-established. But if one subtracts from their positions what has been borrowed from the liberal order and what is merely self-interested (it is my speech I want heard), is there anything that remains upon which the arts may rely for protection? Let us disaggregate. There are the increasingly noisy and prominent activists of the alt-right, the Trumpists, the neo-Confederates, the militia groups at the Charlottesville “Unite the Right Free Speech March,” and the like. In the matter of free speech they are the merest and most discreditable of opportunists: we should not look to the champions of statues of Confederate generals to protect free speech. Then there are the publicists and the pundits, the Fox commentators, the Breitbart journalists, and the like. They are part borrowers, part opportunists. We should not look for a renewal of free speech thinking to the authors of  The New Thought Police: Inside the Left’s Assault on Free Speech  and Free Minds; Bullies: How the Left’s Culture of Fear and  Intimidation Silences Americans; The Silencing: How the Left is Killing Free Speech; End of Discussion: How the Left’s Outrage Industry Shuts Down Debate, Manipulates Voters, and Makes America Less Free (and Fun); Triggered: How the Left Thrives on Hate and Wants to Silence Us, and so on. Their defenses of free speech altogether lack integrity; they are merely ideological (and often paranoid) in their polemics.

And then there are the lawyers, the right-wing academics, think tanks, and lobby groups, the administrators, legislators and judges, and the corporations. The widely noticed “turn” of the political right towards the First Amendment had led only to its redefinition in the interests of conservative grievances and objectives: to the disadvantage of liberal causes (anti-discrimination measures, exercise of abortion rights free of harassment, university “speech codes,” and so on); to the disadvantage of trade unions (compulsory deduction of fees enlists employees in causes they may not support); to the benefit of for-profit corporations (conferring on “commercial speech” the high level of protection enjoyed by “political speech”); to the general benefit of right-wing political campaigns (disproportionately benefited by the striking down of campaign finance law in the name of corporate — or “associational” — free speech); and to the benefit of gun-rights activists (advancing Second Amendment interests with First Amendment arguments). So, again: part borrowers, part opportunists. These three prominent currents of American conservatism, united by their self-pity and their pseudo-constitutionalism, have nothing to contribute to a climate of cultural and artistic freedom. In the matter of a principled free speech doctrine, we can expect nothing from the right.

Not the left. There is no decent theory of free speech, let alone free art speech, that has come from the left. (Rosa Luxemburg is an exception.) There are only leftist critiques of liberal doctrine, external and immanent, respectively. In the external critique, liberal rights are mere bourgeois rights; they are a fraud, of instrumental value to one class, worthless to the other class. This criticism was pioneered by Marx, and successive generations of leftists have regularly rediscovered it in their own writing. A recent example is P.E. Moskowitz’s book The Case Against Free Speech, in which we read that “the First Amendment is nearly irrelevant, except as a propaganda tool … free speech has never really existed.” In the immanent critique, liberal rights are recognized but must be dramatically enlarged, even if they put the greater liberal undertaking in jeopardy; certainly, received liberal thinking about free speech is too tender to commercial interests, while weakening the interests of non-hegemonic groups (including artists and creative writers). Free speech requires campaign finance laws (to enable effective diversity of expressed opinion), restrictions on speech that inhibits speech, and so on.

While liberals may safely dismiss the external critique, they are obliged to engage conscientiously with the immanent critique. The elements of greatest relevance to art free speech relate to two discourses deprecated by the immanent critique. One is “hate speech,” the other is “appropriation speech.” It is frequently argued that minority groups characterized or addressed in a “hateful” way should not have their objections defeated by any free speech “trump.” Jeremy Waldron has given the most compelling (not least because it is also the most tentative) liberal critique of hate speech. He understands hate speech in terms of “expression scrawled on the walls, smeared on a leaflet, festooned on a banner, spat out onto the Internet or illuminated by the glare of a burning cross.” What then of literature and the visual arts? Here he is somewhat casual, writing in passing of “an offensive image of Jesus, like Andres Serrano’s Piss Christ.” Regarding “appropriation speech,” in this case the censor arrives on the scene as a territorialist, and addresses the over-bold artist: “This art, this subject, this style, etc. is mine. Stay in your lane. You cannot know my situation; you lack epistemic authority. You strain for authenticity, but it will always elude you.” This cultural nativism owes an unacknowledged debt to Herderian values and counter-Enlightenment ideas: the spiritual harmony of the group, the irreducible individuality of cultures, the risks of contamination and theft, and so on — in many ways a rather unfortunate provenance.

Sometimes hate speech and appropriation speech combine: “In your mouth, this is hate speech.” Sometimes, the one is treated as an instance of the other: “Appropriation speech is hate speech.” Though this hybrid is at least as old as Lamentations (“ani manginatam,” “I am their song,” the author writes of his vanquishers), it is largely a post-1989 phenomenon. Against it, the literary artist, the visual artist, is likely to respond with Goethe: “Only by making the riches of others our own do we bring anything great into the world.” Notwithstanding all this, however, and the broader switching of sides with the right on free speech (which is often overstated), the left remains an occasional ally.

Not the confessional communities. Religions are constitutively, even if not centrally, coercive systems. Within those systems of conformity, there are censorship sub-systems, protective of divinity and its claims, of institutions and clergy, of practices and dogmas. The master prohibition of these sub-systems relates to blasphemy. Religions are coercive of their own members, and in many cases also of non-members. Whether or not they hold political power, and no religion has been averse to it, they hold communal and social and cultural power. They certainly do not respect artistic autonomy, though they have permitted great artists to flourish in the doctrinal spaces in which they were commissioned to work. There is no decent theory of free speech that has come from any of the major religions. Certainly not from the monotheisms: they take ownership of speech. It is sacred both in its origins (“In the beginning was the Word”) and in its most elevated uses (Scripture, worship). Its lesser and other uses are denigrated or proscribed. Historically speaking, freedom of speech developed as a revolt against ecclesiastical authority.

Religions are invested in art, and they control it when they can — both their own art and the art of non-members. They subordinate the artist to confessional and institutional purposes. Christianity does so the most — its aesthetics are theological: just as God the Father is incarnated in God the Son, so God the Son is incarnated in the Icon, writes the art historian and philosopher Thierry de Duve. The Christian work of art, though it may be breathtakingly beautiful, affirms the theological and historical truth of the Christian story. The model religious artist is the Biblical artisan Bezalel, and the model religious artwork is his sumptuous construction of the Tabernacle in the desert. “Bezalel” means, in Hebrew, “in God’s shadow.” The general stance of the church towards art may be termed Bezalelian. “Artists avoid idolizing the arts,” writes a contemporary Bezalelian, “by resisting any temptation to isolation and instead living in the Christian community, where worship is given to God alone.”

Religion has too many red lines; it is too used to being in charge; it cleaves to the non-negotiable (“the Bible is our guide”); it must have the last word. And when the drive to subordinate art is denied, when the desired orthodoxy is frustrated or broken, a strong sense of grievance is generated, and this in turn leads repeatedly to scandalized protests — to the burning of books and the destruction of artworks. In a word, to iconoclasm, in its old and strict sense, as the doctrinally justified destruction of art with heterodox meanings, or the use of force in the name of religious intolerance. 

To be sure, confessional communities are ardent in defense of Bezalelian artists — of wedding photographers who refuse to photograph, and bakers who refuse to make cakes for same-sex marriages. And there is some truth in the argument that religion and art have common adversaries in the everyday materialism of consumerist societies, and could make common cause against everyday philistinism and banality. The history of the association of religion with beauty is long and marvelous. But in the matter of securing artistic freedoms, the confessional communities are simply not reliable. Certainly they have not been allies in recent times.

Not writers and artists. Though they are anti-censorship by vocation; though they named censorship (“Podsnappery,” “Mrs. Grundy”); though much of the best anti-censorship writing in modern times came from them (Wilde, Orwell, Kundera, Sinyavsky), advocacy is for writers and artists an unfair distraction and burden. It takes them away from artmaking. In 1884, the novelist George Moore, in Literature at Nurse, wrote: “My only regret is that a higher name than mine has not undertaken to wave the flag of liberalism.” Called upon to defend their work, artists get understandably irritated: “I don’t feel as though I have to defend it,” answered Ofili regarding The Holy Virgin Mary. “The people who are attacking this painting are attacking their own interpretation, not mine.” Moreover, their work is often opaque to them. It always holds more meanings than they know, than they designed. Byron cheerfully admitted as much: “Some have accused me of a strange design / Against the creed and morals of the land, / And trace it in this poem every line: / I don’t pretend that I quite understand / My own meaning when I would be very fine… “ And artists are often poor advocates in their own cause. They too readily concede the principle of censorship; they pursue vendettas, and they grandstand; they turn political; they contradict themselves; they advance bad arguments, which sometimes they mix up with better ones; they misrepresent their own work. What is more, they frequently undermine in their art the defenses that are commonly deployed on their behalf.

“But every artist has his faults,” Maupassant once said to Turgenev. “It is enough to be an artist.” In this censoring moment, that should be the beginning of wisdom.

IV

This leaves the liberals. Will they rise to the defense of literature and the visual arts? Freedom of speech, after all, is integral to a liberal society. As a historical matter, free speech is liberalism’s signature doctrine. It is embraced by all the major liberal thinkers; it is incorporated into all the international legal instruments that comprise the liberal order. Execrations of censorship are to be found everywhere in canonical liberal discourse — in Milton, in Jefferson, in Mill, in Hobhouse, in William James. Censorship stultifies the mind, they all affirm. It discourages learning, lowers self-respect, weakens our grasp on the truth and hinders the discovery of truth. Liberals typically figure prominently among the champions of oppressed authors and banned books; they tend to recoil, with a certain reflex of contempt, when in the presence of affronted readers or minatory censors.

But there is a problem. Liberalism has traditionally cast a cold eye on literature and the visual arts, and has been peculiarly unmoved by their vulnerability. Literary and artistic questions have not been pressing for liberals, in the matter of free speech. We may even speak of a failure within liberalism to value literature and the visual arts, or to value them in a way that translates into a defense of them within a broader defense of free speech.

To begin with, there is an historical circumstance that contributes to the explanation for this peculiar neglect. The defense of free speech in the liberal tradition is significantly tied up with the political virtue of toleration of religious dissent. This is reflected, for example, in the First Amendment to the American Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press …” The free exercise of religion requires the free exercise of speech. Liberalism was tied at its inception to the defense of confessional dissent. Starting from a position in which loyalty to the state requires loyalty to its ecclesiastical institutions (in Protestant states) or to the ecclesiastical institutions favored by it (in the case of Roman Catholic states), liberals asked: Can the state accommodate citizens who wish to give their loyalty to it, but not to its ecclesiastical institutions? They gave several reasons for their affirmative answer. Tolerance is itself a theological matter. It derives from a respect for the individual conscience. It is not just a defense of theological dissent; it is itself an act of theological dissent. But none of this, of course, has anything to do with the welcoming of art, of artists, of artmaking. What was applied to religious works, practices, beliefs, and collectives was not applied to literary works, practices, or collectives. No question of tolerance in respect of the creative writer or artist arose for liberalism, within its own historical trajectory. (Indeed, when illiberal elements sought to exercise a censoring influence over art, they were often accommodated by liberals).

This is not to say that liberal arguments for free speech are limited to religion. But if we look at its arguments, we search in vain for literature and the visual arts. Instead we are instructed, quite correctly, that the validity of a proposition cannot be determined without exposing it to challenge, and that a silenced opinion may be true, and that a false opinion may yet contain a portion of the truth, and that true opinions may become mere prejudices if we are forced to defend them — and so all opinions must be permitted. We are also told, again correctly, that free speech is the precondition for controlling abuses and corruptions of state power, since it empowers citizens to act upon the government, and impedes the freedom of governments to act on citizens. It reverses the flow of power, governments do not limit citizens; citizens limit governments. And also that free speech is the precondition of deliberative democracy: autonomous citizens cannot act autonomously, that is, weigh the arguments for various courses of action, if they are denied access to relevant facts and arguments. The promoting of public discussion requires a vigorous, generous free speech regime. The liberal tradition also includes, particularly in Humboldt and Mill, the ideal of self-realization, which broaches the large realm of free communication and free culture.

But where does art figure in all this? Almost nowhere. Alexander Meiklejohn, the American philosopher and educator who wrote authoritatively about freedom of speech, did observe that “the people need novels and dramas and paintings and poems, because they will be called upon to vote” — a defense of the arts, but not in their integrity, a utilitarian defense. (He denied that the people needed movies, which are engaged in the “enslavement of our minds and wills.”) We can instead trace a liberal indifference, and in some cases even a liberal hostility, toward literature and the visual arts. How many liberals would have endorsed Schiller’s declaration that “if man is ever to solve the problem of politics, he will have to approach it through the problem of the aesthetic, because it is only through Beauty that Man makes his way to Freedom”? The great liberal thinkers have not found artworks to be useful texts to think with. Indeed, the liberal complaint that the literary sensibility has a reactionary character dates back to the French Revolution, its adversaries and its partisans. Writers such as Paine and Cobbett directed some of their most venomous attacks against a literary imagination whose origin they saw in a morally bankrupt, libertine, aristocratic culture. The confrontation thus framed, the decades that followed merely deepened it, with creative writers fully returning fire. Poets and novelists made nineteenth-century liberalism their declared enemy (Baudelaire, Dostoyevsky); twentieth-century liberalism is modernism’s declared enemy (Joyce is the honored exception); reactionary politics and avant-garde art are taken to be, in M.H. Abrams’ phrase, mutually implicative. This ignores, of course, the enlistment of the arts in the modern revolutions; but liberals are not revolutionaries.

It is therefore little wonder that when one surveys the modern intellectual history of liberalism, there are very few liberal thinkers for whom, in the elaboration of a theory of free speech, literature and art figured. I count two, both of them outside the Anglo-American tradition: Benjamin Constant and Alexis de Tocqueville. Here is Constant, in a direct affirmation of inclusiveness: “For forty years I have defended the same principle — freedom in all things: In religion, in philosophy, in literature, in industry, and in politics.” Constant defended this freedom against “the majority,” which in his view had the right to compel respect for public order and to prohibit expression of opinion which harmed others (by provoking physical violence or obstructing contrary opinions) but not to otherwise restrict expression. Constant was himself a man of letters, a novelist of the poignancies of love — a Romantic, who brings to mind Victor Hugo’s description of Romanticism as “liberalism in literature.” 

As for Tocqueville: in Democracy in America he wrote about democracy’s inhibiting effects on fresh and vigorous thought. “There is a general distaste for accepting any man’s word as proof of anything. So each man is narrowly shut in himself, and from there, judges the world.” This does not lead to debate. Each man mistrusts all others, but he is also no better than others. Who then to trust? “General sentiment,” by which Tocqueville means the tyrant he most fears in an open society: “public opinion.” He famously observed that “I know of no country where there is less independence of mind and true freedom of discussion than in America.” But then he went on to offer a brief account of the significance of literature in the growth of democratic sentiment, and a longer account of the type of literature that a democratic society might foster. Literature, he believed, is a counter to despotic tendencies. This is not literature passing as political theory; this is literature in its aesthetic integrity.

Constant and Tocqueville — but not Mill. This is surprising, since it was literature — the French writer Marmontel in particular — that saved Mill from his nervous breakdown and alerted him to the emotional limitations of utilitarianism. And yet it is Mill’s name that we must give to liberalism’s defeat in its first major test in respect of arts censorship. It was in 1858 that he completed On Liberty, one of the very scriptures of modern liberalism — but which, in this context, must be remembered as the great work on freedom of expression in which the philosopher failed to address three major setbacks to artistic freedom that happened even as he was writing it: the trial for obscenity (“an outrage to public morality and religion”) of Flaubert’s Madame Bovary, the trial for obscenity (“an insult to public decency”) of Baudelaire’s Les Fleurs du Mal, and the passage in Parliament of the Obscene Publications Act, which allowed the British state to seize and destroy works of art and literature without even giving their makers a right to be heard. It must also be added that in this failing Mill had successors in the weak response of liberals to the attack on Rushdie: not only were they few in number, but their defenses of the novelist rarely included defenses of the novel, of the dignity of his aesthetic project, of the autonomy of art and its right to blaspheme. The same blindness to art and its rights disfigured many liberal interventions in the American controversies of the late 1980s and early 1990s. They attacked Jesse Helms and company for many good reasons; just not this one.

*

We have discovered a problem. Even liberals are not good on literature and the arts, and this matters now more than ever before. How might things improve? We could attempt to give liberals reasons why they should take literature and the visual arts seriously. We might make the case for a liberal literature — the case advanced finely by Martha Nussbaum in her discussion of The Princess Casamassima, which she reads as contending for “liberalism as the guiding principle in politics,” taken by her to include “a demand for artist’s freedom of expression.” But what about works of art that contend for a conservative politics? No, the case for artistic freedom must be made only on the grounds of art as such. Writers and artists will not find relief from their troubles unless art itself, aesthetic expression as such, is explicitly inducted into the class of protected free speech.

There are many reasons to do so. I will give only some. Art is a human good. An attack on literature and art is an attack on capacities and practices that constitute human beings as human and allow us to flourish. When we attack writers and artists, we attack ourselves. We are species-constituted by our artmaking and art-experiencing capacities; we realize ourselves by our artmaking and art-experiencing practices. The arts aid mental development and social harmony; they offer representations of a transfigured world. Art contributes to our understanding of ourselves and of the world; art makes it easier for us to live peaceably together. That is to say, it makes us more transparent to ourselves, and it makes the world more transparent, as well as less threatening and more beautiful. Artworks are goods whose desirability cannot adequately be expressed in individual terms — that is to say, they are “public” or “communal” goods.

We must recognize (and value) the form of existence of the writer and the artist. People who pursue the literary and artistic life are pursuing an estimable life, and the fruits of their pursuit, their literary and art works, should be secure. They have a “plan,” in the liberal sense of the word; in more heroic and Tocquevillian terms, they seek to forge their own destiny. They certainly pursue a conception of the good life. That is, to make use of a distinction drawn by Jeremy Waldron, they are to be held to account not by reference to what they have done, but rather by reference to what in general they are doing. Free speech occupies a special place in this “plan.” It is the precondition to the artistic vocation. None of this has anything to do with the seeking of privileges. That some will pursue this plan in a degraded manner is not to any point. The pornographer stands to the art world as the fundamentalist stands  to the religious world. Each is reductive, blinkered, unthinking — but it would be an inconsistency to grant toleration to the one and deny it to the other.

The makers of art (and the audiences for art) merit recognition as a distinct group. Artists are not best imagined as individuals under contract; they should be recognized as members of their own communities, with their own practices and institutions. Artmaking is the characteristic activity of art-communities. And if art-makers are in their own way a group, then they, and their art, merit the protective attention that identity- and religious-groups and their products typically receive in liberal societies. Indeed, the liberal state should take positive steps to ensure that art-making flourishes when threatened by confessional or other “identity” groups. In certain respects, the art community is the ideal community, and a model for all given communities; the free speech that it needs is the free speech that we would all need for our ideal existence. 

The art community is many communities. None is coercive. All are time-bound: specific formations do not last. They have no transcendental quality. They are fully secular. They are self-constituting: they do not require myths of origin. They are non-exclusive. They are unboundaried; there are no impassable barriers to entry. They are open to the world; they address the world; their solicitations are gentle and may always be refused. Literary and art communities are communities for anti-communitarians. They can never be a menace to society, in the sense that fanatical communities, or fanatical members of other communities, are a menace.

Art is a liberal good: to defend literature today is to defend liberalism, not as an ideology or a political doctrine but by modelling the benefits of its freedoms. How do we name the members of a liberal society? One way is to call them citizen-readers. Among art’s forms and kinds, it is the novel — with its many standpoints, its diversity of human types, its provisionality, its interest in ambiguity and complexity — that comprises the distinctive art form of a liberal democratic society. To make war on the novel really is to make war on liberal democracy.

Literature and the visual arts have so many things in common with liberal societies. They are both committed to a certain process of making explicit. “The liberal insistence,” writes Waldron, “[is] that all social arrangements are subject to critical scrutiny by individuals, and that men and women reveal and exercise their highest powers as free agents when they engage in this sort of scrutiny of the arrangements under which they are to live.” He goes on, “society should be a transparent order, in the sense that its workings and principles should be well-known and available for public apprehension and scrutiny.” Does this not describe the work of the writer? And they are both reflexive: for the liberal, identities should be treated as a matter for continuous exploration, receiving at best only conditional and contingent statement. And they both tend to the agonistic. By the agonistic, I mean interests or goods in irresolvable conflict — one that cannot be settled and cannot be won. There can be no resolved triumph of one over the other. The understanding by each of the other is bound up with each’s self-understanding; neither recognizes itself in the account given of it by the other. Liberal societies exist to accommodate agonistic conflicts, and art exists to explore them. It also has its own agons — with religion, with philosophy, with science, with history. The work of art, said Calvino, is a battleground.

Both liberal societies and the arts are committed to a flourishing civil society. Precisely because literature, in its difference from other writing, solves no problems and saves no souls, it represents a commitment to the structural openness of a wholly secular space, one which is not programmatic, not driving towards any final, settled state in which uniformity rules. The artwork, like the open society, is promiscuous in the invitation that it extends. It is available to all; all may enjoy it; all may interpret it; all may judge it. Both liberal societies and the arts, in sum, have the same necessary condition. That condition is freedom. Illiberal societies prescribe a literature and visual arts that is both a diversion (“bread and circuses”) and an instrument of legitimation (“soft power”). But liberal societies need the existence of a free literature and art. Works of art are liberal public goods.

From time to time, and in our time almost daily, events occur that prompt the question: Is liberalism equal to the challenge? I do not believe that the censorship of literature and the visual arts is the worst evil in our world, but it is a bad thing, and there is too much of it around. In these censoring times, liberals should strive to give to aesthetic expression an honored place in their theory of free speech.