For the freedom of art, freedom of law and freedom to err


Art cannot exist without freedom. And where freedom exists, art experiments must be allowed – experiments more or less in line with expectations and what viewers of art are accustomed to. There must be an acceptance of searching, allowing not only for wandering the “dirt track” where nobody has ever seen art, along with scandals where art has long been present. However, everything has its limits. Even the freedom of art. For art, these flexible limits set out the aesthetic canons of the era and the boundaries of law. The aesthetic canons protect the sensitivity of art viewers, while the law protects other values, recognised by the law as more important than the freedom of creativity. If these canons and values are breached by art, then the boundaries within which it is allowed are described by law and set out by the courts of law.

We are pleased to introduce an English translation of an essay by Ewa Łętowska and Krzysztof Pawłowski (under the penname “Acus”). It provides an inspiring insight into the problem of social and legal borders of the freedom of artistic expression, with examples from Polish and foreign cases. It is a part of a collection of texts published originally in “Europejski Przegląd Sądowy” (“European Court Review”), combining observations on legal phenomena with references to the art of opera. The book is illustrated by an artist “Sztuczne Fiołki”. The entire set of texts is going to be published soon by Wolters Kluwer (see the cover below).

– Polish Private Law –

Freedom and boundaries – companions of art

Art is a space for freedom. Absolute freedom. This applies to the freedom of the art viewer’s imagination. Creators have their boundaries of freedom set out quite clearly in their heads and/or pockets, depending on the funds available from their sponsors and on the censorship of the state, a director or fellow artists.  Particularly the last one from this list may be quite burdensome, as one cannot appeal against it or negotiate it. The judgements of community killed Socrates and many other promising performances or creators. For creators – bodily harm is rare, while their soul may more frequently be the victim – particularly the parts of their souls where their genus is hidden.  Therefore, creators and performers have always known that freedom has its boundaries, and that these boundaries change depending on people – some can enjoy it more, others less so: both with regards to location (what Warsaw finds amusing, is not done in Cracow at all) and depending on time.

Now, what about those viewers who are mainly “mass media consumers”, even those with more sophisticated tastes? They are more definite and more explicit in their judgements. For them, it is not quite so obvious that freedom (i.e. both being free to do something and free from something) has its limits, depending on what society allows as the acceptable framework. For them, it is also not quite so obvious that courts, acting as guardians of these limits (enjoying their broad autonomy in decision-making), move the limits here and there, depending on who wants to cross them.

Freedom in a democratic state is balanced between various values – privacy, artistic expression, good reputation, the right to information, to safety and integrity – and courts are the final instance setting out the borderlines. This fact is slowly and arduously making its way into social awareness and opinion, and into the minds of judges themselves. The courts are still not always able to notice that in cases referring to such important issues as freedom and its derivatives, stating with authority that something “infringes” or “does not infringe” the boundaries of freedom does not always suffice, but that it should always be clearly said why the judge resolving the conflict between freedoms, or between freedoms and somebody’s rights, established these boundaries exactly where he did, either by issuing a sentence for crossing the boundaries, or stating that the whole issue at hand still  falls within the rule of law.

Problems with evaluation

one of the book's illustrations

one of the book’s illustrations by Sztuczne Fiołki

Polish courts too often seem unaware of the fact that, for the parties of a conflict of values or of rights, each ruling resolving that conflict is only a resolution of the particular dispute, but at the same time, for society it is “creating new standards”. This was the case, for example, in the dispute regarding caricatures of the president published on the internet, in the case of Doda’s (Dorota Rabczewska, a pop star) opinion regarding the prophets who were “high on dope” while writing the Bible, in the accusations against Nergal (Adam Darski, a leader of a black metal music group) – the vocalist-offender who destroyed the Bible in public, or in the criminal case of the Russian band Pussy Riot, which serves as an example from abroad.

A film producer, infuriated by a review from a blogger-critic who described the film as the catastrophe of the year, threatens the critic with a court suit and demands millions in return for lost profits. Does this strike us as a novelty? Yes, as the defendant-to-be is a blogger using the internet, and no. Over forty years ago, in the Polish People’s Republic, a fuss was made in a trial disputing whether the opinion of a critic accompanying the opera during its performances abroad stating that it was applauded “moderately” and “sluggishly” infringed the moral rights of the creators. An imaginative or real conflict between freedom – usually the freedom of speech or artistic performance – and feelings or honour, suffering from an alleged or actual abuse of freedom, must quite often be resolved by courts (civil, criminal, or both).

These are difficult disputes – both for the courts and for the parties. For the courts they are tough because the conflicts must first be recognised, understood and verbalised; the opinion and arguments of the parties must first be considered and justified in the way that is understandable for the parties and for the audience. Such cases involve testing the limits of freedom, of the court’s authority and also of some transient issues such as social awareness, sense of humour and the cultural baggage of the parties. This belongs in the universal and not only in the European standards.

Disappointed opera spectators…

The best illustrating example here comes from the opera. In 2001, during the Salzburger Festspiele (a very popular music and theatre summer season), a SCANDAL occurred, as recorded in cultural and legal chronicles.

Die Fledermaus (The Bat), the operetta composed by Johann Strauss II and written by Karl Haffner and Richard Genée was staged. This very popular, light and unpretentious work of art is noted for its musical values, not only as the “Vienna operetta” (which it actually is) but also as a comic opera.  It is therefore usually staged in various “large” opera theatres and performed by first class singers. It is also one of the most favourite New Year’s Eve items in many operas and TV channels. Its plot takes place in Vienna, so the Austrians consider themselves the guardians of this opera.

Polish courts too often seem unaware of the fact that, for the parties of a conflict of values or of rights, each ruling resolving that conflict is only a resolution of the particular dispute, but at the same time, for society it is “creating new standards.

Its plot is quite simple: Prince Orlovsky (the role of travesti: a female singer dressed as a man), organises a ball attended by a married couple (in disguise and incognito) who are bored with each other, their maid – pretending to be an artist, and other “members of society”. A complicated qui pro quo causes some embarrassing adventures, resulting in the ball guests ending the joyous night in prison, while the main character must serve a minor sentence for insulting an official. These are not revolutionists but drunk revellers. They are not after a revolution, just after a lot of top quality alcohol. This piece of art was chosen for the finale of the 2001 festival and to finish the term of the director, Gerard Mortier. Director Mortier, considered a provocateur himself, engaged Hans Neuenfels, another scandalmonger, to direct the performance. This called for only one possible result – SUPERSCANDAL. And so it happened, Neuenfels rearranged everything his own way. No-one could even imagine what he managed to combine and pack onto the stage: he deleted some characters and added others, he changed dialogue, included Dadaist poetry, added 20th century ballet by Arnold Schoenberg to the 19th century music. He spiced it all up with jazz accents and fascist fanfares. And this was not all: he made a drug-addict and rapper of Prince Orlovsky, and Alfred – a singer in the original version – was changed into a Spanish fascist, while the head of the prison – a good-hearted type originally – was played as Mussolini, with the main character as Marshall Goering. In addition, there was plenty of the director’s favourite – social poignancy…

The performance became a giant scandal and received negative reviews from all the critics. The audience booed angrily. A couple of opera lovers (who were also lawyers), having paid EUR 260 each for the tickets, decided that they had received the opposite of what they paid for. In their opinion, they were given aliud, as there was a huge difference between what was expected and paid for, and what was received in return (if instead of a proper watch someone sells us a fake watch – a children’s toy in the form of a watch, this will exactly be an “other performance” i.e. “aliud”).So, as lawyers do, they sued the theatre demanding a refund for their tickets. Their claims were based on the fact that the theatre had failed in its duty to inform them. They had not been warned about the nature of the play and about the scope of innovations made in the staged version. They claimed that they expected to participate in just another staging of Die Fledermaus, while in fact the performance was a completely different piece of art. They lost the case.

… and the judgement

The courts of two instances decided that the authors of the performance are entitled to a very wide range of artistic freedom, based on constitutional law. The margin is set out solely by the principle of good faith. Both the director’s reputation and press information about the performance, as well as interviews and material made available to the audience, informed about the staging in a manner excluding the allegation of acting in bad faith. The main argument included the opinion that if information requirements are too high, then the related potential claims for compensation would have a negative, paralysing effect on the fundamental right to artistic freedom. Finally, the statement of claim was dismissed by Landesgericht Salzburg(Judgement of 10 March 2003, 53 R 417/02h). The proceedings lasted JUST two years – if it was down to the Polish courts, we would most likely still be waiting for the final and binding decision of the court.

The claimants were not impressed by the sentence and published a long, humorous opinion in a legal magazine (“Juristische Blätter” 2003, p. 595).They were supported by criminal lawyers who saw the whole situation as a scam deserving a criminal penalty, as the audience had not been informed clearly enough about the scale of innovations made in this work of art. (A. Hollaender, Betrug durch “Die Fledermaus”? Das Strafrecht im Spannungsverhältnis zur Feiheit der Kunst, “Österreichische Juristenzeitung” 2005, p. 50). Kornel Mundruczó, a Hungarian author, was very careful when preparing his version of Die Fledermaus – which could be seen at the beginning of the 21st century in Warsaw. It is a work dealing with euthanasia and the poster states that it is an interpretation and reworked version of the Strauss’ original, but not the original itself.

For us, the viewers, the most important information is that, in this conflict, the court in Salzburg was in favour of granting stronger protection to artistic freedom of speech, instead of protecting the “conservative” expectations of the audience. The expectations, in this case, were based not quite on the disappointment caused by obtaining inadequate performance for money, but on the belief that the performance did not correspond to the traditional expectations of the viewers. This was a case of freedoms opposing artistic freedom. The court adjudicated that citizens, including the creators, or mainly the creators, are entitled to be innovative and to instigate “small cultural revolutions” on the opera stage. However, for doing so, i.e. for such revolutions and for cultural hooliganism, they should not be penalised by a state under the rule of law!

The ECHR approach

book cover

the cover

However, when different types of freedom are in conflict, the effect of weighing these freedoms may be quite different. In 1994, in the case Otto-Preminger-Institut v Austria, the ECHR adjudicated that Austria had not violated the European Convention by forbidding the performance of a film based on a scandalising (and quite old) theatre play by Oskar Panizza – Liebeskonzil. The showing, which significantly was to be viewed by the local club members who knew what they were going to see, rather than by a wide, uninformed audience, was prohibited by the authorities of Innsbruck, an area considered particularly conservative. The film presented Christ and Holy Mary in a blasphemous manner, and this could be a bit too much for the Innsbruck residents.

Strasburg finally decided that censorship as a measure (as this was in fact the issue, as the organisers of the show were never punished) may be considered proportional, while the local judge knows the local circumstances and their cultural background, strongly Catholic in this particular case, much better than an international judge. Even Strasburg – quite rightly accused sometimes that it tends to assume too much power – decided that the margin of freedom of a national judge is much wider in cases where freedom is interfered with, and the interference is motivated by the need to protect morality and religious beliefs. The representatives of the prevailing religion in the region were exactly the ones afraid of the film. Interestingly, in several theatres in Austria, including one in Innsbruck, Liebeskonzil was shown despite local protests, and nobody censored the play.

Strasburg did not see any infringement of the European Convention in the censorship activities of the Austrian authorities and approved their motives. Both in this case and in other cases (Wingrove v Great Britain in1996, where a video showing St. Teresa in ecstasy was withdrawn) the issue did not concern penalising the film distributor or its creators, but forbidding the show instead. If penalties were added, in particular including imprisonment, the result of “weighing” the conflict of values would most likely be different.

Weighting values in practice

This is worth bearing in mind when referring to the arguments “from Strasburg” in the Polish discussions on penalties regarding the cases of Nergal, Nieznalska or Doda.  The first two incidents involved penalising the artists accused of offending religious feeling through their artistic activities. These cases were resolved in favour of the artists, although in the case of Nieznalska the whole proceedings lasted interminably long. The case involving Doda, however, is quite different. This case referred to an opinion, in fact, not even very strong one (i.e. a suggestion that the Bible was written by some individuals who were “high on dope” – she stated in a press interview that she “believes more in dinosaurs than in the Bible” because – in her opinion – “one finds it difficult to believe in something written by an individual who is drunk with wine or high after smoking some kind of dope.”) and made outside her artistic activities, that was supposed to offend religious feelings. Doda, who was penalised in Poland (judgement of the Regional Court in Warsaw of 18 June 2012, file No X Ka 496/12, the case is currently delayed by the Constitutional Tribunal, following a constitutional complaint) has declared that she will fight in Strasbourg, so this fight may enable those interested in finding out what can be said in Poland about “grass” and prophets.

The court case resulting from allegations of offending religious feelings by the vocalist of Behemot ended with him being acquitted. In the justification, the court stated that although Nergal’s behaviour was very vulgar and unacceptable, it was not a crime (Judgement of the Regional Court in Gdańsk of 11 February 2014, file No V Ka 860/13). The participants of the concert were aware that they were not attending a religious music concert, and the vocalist behaviour did not offend anybody present. In addition, the band had forbidden any recordings being made during the concert, and the recording was published on the internet without Nergal’s knowledge or permission. The listeners and viewers of Nergal, who tenaciously pursued him for many years, were therefore offended at their own initiative, as they had searched for satanic concerts and related content on the internet. Whereas for the religious feelings to be offended (Article 196 of the Polish Criminal Code) it is necessary to act recklessly, at least – i.e. allowing for such an offence to occur (judgement of the Supreme Court of 29 October 2012, file No KZP 12/12). This was not the case here, as those present in the audience did not experience any offence, and the recording was published in breach of the artists’ prohibition.

The European problem, although not within the European Union, is the case of political-religious-and-what-not offence by Pussy Riot, the Russian band. In this case, the artistic freedom of performing and the citizen’s right to protest in a church constitute a mix that is impossible for anyone to properly deconstruct. Maybe only during the Final Judgement, if that ever occurs, and if God decides that it is worth dealing with such things. Though maybe it is worthwhile, and Pussy Riot are not necessarily the ones to act as defendants. These female performers most definitely wanted to indicate the alliance of “the throne and the altar”, while choosing the altar as the venue for their demonstration (In February 2012, the Members of Pussy Riot staged a performance in Moscow’s Cathedral of Christ the Saviour, singing the song “Mother of God, Chase Putin Away!” in front of iconostasis. This performance was considered offensive to religious feeling and the performers were sentenced to two years’ imprisonment in a penal colony.  They were released from the colony under an amnesty, four months before the end of their sentences. The sentence was widely criticised both from the point of view of proper judgement that religious beliefs were offended, and with regards to the adjudicated penalty).

They not only succeeded but they actually exceeded their own expectations. The argument that this scandalous demonstration was not in fact scandalous is a weak one. Therefore, it would be better to consider this case as an act of citizens’ disobedience: a demonstrative breach of law, perceived as unjust by the offenders. However, this assumes acceptance of the fact that the same law will be applied against the offender. And this was the case here. The argument over whether the penalty was draconian and stupid goes beyond the scope of this article.

A playground of freedom

Opera has always been an asylum of freedom of audience imagination. It keeps expanding and flourishing, and keeps both the artists and the audience happy. This freedom has no boundaries and everybody likes it this way. However, what is happening over the heads of those interested in what is on the stage? This is where the boundaries exist. Marked with very thin, almost invisible lines on the map of that difficult area where freedoms mix with the meanderings of law. The judges who draw the line must remember that this area is seismically active and keeps changing at all times.

Therefore, if a precise map in the form of justification is not attached to their judgements, indicating the judges’ preferences on the conflicting values, one may end up lost in the verdicts.

In truth, upon reading the commentaries published by the media, one feels that they have already become confused.

Posted on by ACUS in General Issues

About the author


EWA ŁĘTOWSKA - Professor of private law in the Institute of Legal Studies of the Polish Academy of Sciences and an Ordinary Member of the Academy, a Corresponding Member of the Polish Academy of Arts and Sciences, a member of the Académie de Droit Comparé, a former judge on the Constitutional Tribunal and previously of the Supreme Administrative Court, and in 1987 - 1992 the first Ombudsman in Poland. KRZYSZTOF PAWŁOWSKI - philosopher (graduated from the Institute of Philosophy of the University of Warsaw), worked closely with academic institutions and NGOs, writer.