Irish Times columnist John Waters has written an interesting article about what is now being called the Picturegate scandal. It is especially interesting because Waters, who is normally a fearless opponent of hypocrisy and the abuse of power, has this time chosen to defend the shocking abuse of power on behalf of Taoiseach Brian Cowen and has enlisted some remarkably thin arguments in his favour.
He begins by questioning the artist Conor Casby’s ability. Casby had said that he wanted to let the paintings speak for themselves. Waters questions what exactly they might say - "That the artist has an infantile obsession with toilet humour? That he nurtures some deep animus towards politicians? That he cannot draw? The only amusing thing here is Casby’s deluded belief that he has something to say."
It is a long-standing tactic for opponents of free speech to attack the style and to question the skill used to say those things they don’t want us to hear, particularly in the case of iconoclasts who dare to question matters of religion. For example the charge that The Life Of Brian was not funny, The Last Temptation Of Christ was boring or The Satanic Verses was gratuitously insulting. This misses the point of what freedom of expression is for and why it is important. Free speech is protected in a democratic society because it is necessary to allow criticism of even the most powerful interests and the most entrenched customs, in order that they can evolve to meet the demands of changing times. The principle is very old and its origin is variously claimed for Socrates, the Islamic caliph Omar, Magna Carta in England and the Dutch Catholic theologian Erasmus. It is entrenched in legal documents including Bunreacht na hÉireann, the Constitution of Ireland (although with exceptions which will be discussed here). However I have never come across the argument that free speech should apply only when the joke is funny, the story is entertaining, the analysis is flawless or the painting is a masterpiece. The artistic or logical merit of any work should never be an issue with regard to the author’s right to freely express his or her ideas.
"And though all the winds of doctrine were let loose to play on the earth, so Truth be in the field, we do injuriously by licensing and prohibiting misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse in a free and open encounter?" - John Milton, Areopagitica (1644)
While the cult of St. Biffo has yet to gain masses of converts outside of Clara, the defence of his dignity has been conducted with all the balance and proportion of a church inquisition. According to the original Sunday Tribune article, when the paintings were first discovered in the National Gallery and the RHA, the Gardaí were called: "Bemused officers told management, however, that it was unlikely the rogue artist had committed any type of criminal offence."
That relaxed approach changed after the above article appeared. The next day the state broadcaster RTÉ ran a television news story about the paintings, but subsequently removed the story from their website, following up with an apology the following evening. It later transpired that the Government press secretary had phoned the director-general of RTÉ, Cathal Goan, to complain, while a Government backbench TD issued a press release calling for Goan’s resignation. Many commentators have pointed out that if a private citizen had a complaint about a news article, they would be directed to use the Broadcasting Complaints Commission instead. Certainly it is highly questionable whether an apology for a non-libellous article would be issued the following day on the main evening news.
While this was going on, the radio station Today FM received a visit from Gardaí who asked for their co-operation in investigating the case. Producer Will Hanifin asked what the charges might be against Casby. He was told they were looking into allegations of incitement to hatred, criminal damage and public indecency.
Let’s look at incitement to hatred first. In the Incitement to Hatred act, 1989, the definition is as follows: "hatred" means hatred against a group of persons in the State or elsewhere on account of their race, colour, nationality, religion, ethnic or national origins, membership of the travelling community or sexual orientation. To prove the charge, it would be necessary to prove that the pictures of the solitary Brian Cowen would incite hatred against a group of persons, as opposed to just Mr. Cowen (who is unique). That’s assuming they did incite hatred, as opposed to disrespect or laughter.
Now let’s look at public indecency. This is defined in the Criminal Law (Amendment) Act 1935 as "[to] commit… any act in such a way as to offend modesty or cause scandal or injure the morals of the community". It is a summary offence with a maximum fine of €635 and/or six months’ imprisonment. We definitely have a scandal, but it is about the official reaction to the pictures rather than the pictures themselves. As reards modesty and injuring community morals, if these pictures are considered indecent then there are plenty of other images and texts that could also be sanctioned. Following that to its conclusion, the present recession would be a logical excuse to bring back the censorship of the 1930s as well.
The third charge is of criminal damage and it has to be conceded that someone did hammer a nail into a wall in both of those galleries in order to hang the pictures. Casby is reported as denying involvement in this one but we shall see if charges are brought. The Criminal Damage Act, 1991 specifies a maximum penalty (on indictment) of €12,700 or ten years’ imprisonment. Considering it is legal to build a motorway through the seat of the ancient High Kings at Tara, I’m not sure that he would get ten years hard labour for driving a nail into a wall, no matter how prestigious the building.
The Constitution in its article 40.6.1.i guarantees "The right of the citizens to express freely their convictions and opinions." However it then qualifies this right by adding that speech "shall not be used to undermine public order or morality or the authority of the State" , and outlaws "blasphemous, seditious, or indecent matter". This raises the question of whether two paintings of the Taoiseach with his shirt off would fall foul of one of these exceptions. As regards indecency, the issue stands as to whether a picture of a male with his shirt off is indecent. Given that one national daily newspaper carries photographs of topless women every day I don’t think we can say it is. As regards sedition, this is an offence that remains on the statute books but has not been prosecuted in many years. If it is possibly sedition to hang an unflattering picture of a senior politician, it is definitely sedition to organise a "blue flu" strike. That covers public order and State authority as well; and we have already dealt with morality. The only one left is blasphemy, and unless the cult of St. Biffo wishes to bring charges I think we can forget this too.
John Waters also criticises broadcaster Pat Kenny who said that if he, Kenny, were the subject of the paintings he would buy them to hang on his bathroom wall. "The difference between himself and Brian Cowen, he asserted, was that he, Pat Kenny, has “a sense of humour”. Well, no. One difference is that Brian Cowen is Taoiseach and Pat Kenny is not."
Let’s examine what exactly being Taoiseach has to do with it. Michael Kennedy said that the pictures “represented a gross insult to the position of An Taoiseach, not to mention a personal affront to the dignity of the man himself”. And Today FM presenter Ray D’Arcy said that Hanafin had been told by one of the Gardaí that “the powers that be want action taken”. Labour Party politicians have rightly pointed out that it took the Gardaí six months to begin searching the offices of Anglo Irish Bank where serious wrongdoing was suspected. The clear difference between the Taoiseach and anyone else is that the Taoiseach is the head of government, and those around him can wield enormous power on his behalf. If a private citizen makes a mistake it can seriously affect himself, his family or his work colleagues. If the Taoiseach makes a mistake, by act or omission, it can make life worse for everyone in the country. This is precisely why it is so important that criticism of the Taoiseach is freely allowed, no matter what anyone thinks of the style or content of that criticism.
Waters goes on to assert that "The internet has reduced public debate to the level of a drunken argument, in which no holds are barred, in which deeply unpleasant people get to voice their ignorant opinions in the ugliest terms, in the name of “free speech”." It is not clear if he is blaming the people who express their opinions, or the technology they use to do so. Bloggers and other commentators are denounced, ad hominem, as deeply unpleasant and ignorant. The technology itself is blamed for lowering the tone of public debate, an argument which is reminiscent of the politician Oliver J. Flanagan who claimed on the Late Late Show in the 1960s that "there was no sex in Ireland before television." In fact it was the use of technology such as Twitter by concerned citizens which kept the story alive and focussed attention on the flagrant abuse of Government power; and that is surely a useful contribution to a healthy democracy.
Waters’ final point is that satire is not harmless. He cites the example of British Liberal politician David Steel who blamed the satirical programme Spitting Image for his party’s electoral shortcomings. Most scholars of the subject have instead laid the blame on the UK’s first-past-the-post electoral system which gave the SDP-Liberal alliance 3.5% of the seats with 25.4% of the votes. Waters fails to mention that at the same time Spitting Image was equally vitriolic towards Steele’s rivals Margaret Thatcher and Neil Kinnock. He also fails to mention the cutting satirical portrayals of Tony Blair, Bertie Ahern and George W. Bush which did nothing to prevent them staying in office for ten, eleven and eight years respectively. Such portrayals must always be based on characteristics the public already recognise in these politicians, otherwise they just would not work as satire. It cannot be comfortable to see oneself portrayed in a negative way, but that is both the price of high office and the recognition of high status that goes with it.
Sunday Tribune 29/03/09: ‘It took Gardaí six months to go into Anglo Irish’: reaction to cowengate
Irish Times 27/03/09: With public discourse so debased, the joke is on us
Irish Times 26/03/09: Gardai question artist under caution
Irish Times 25/03/09: RTÉ apologises for news item on Cowen nude portraits
Sunday Tribune 22/03/09: Cowen hung out to dry in National Gallery hijack