Obscenity, Pornography and Art - University of Melbourne

O B S C E N I T Y P O R N O G R A P H Y & A R T 

me d i a &a rt s 

l aw re v i ew 

O b s c e n i t y, 

Pornography & Art 

Colin Manch e s t e r 1 

This article looks at obscenity, pornography and art, examining the different ordinary and legal meanings that might be 

given to these terms, their inter-relationship and the extent to which they intersect. It considers approaches which the law 

has adopted in seeking to exclude art from the scope of obscenity provisions, thereby aiming to treat art differently from 

(other) obscene or pornographic material, and difficulties which might be encountered in practice in the operation and 

application of the law — the possible lack of appreciation of art and artistic merit on the part of those responsible for 

administering and enforcing the law; legal controls for the protection of art formulated in the Modernist period and based 

on assumptions and criteria which, with Postmodern art, no longer apply; a possible different perception of what art 

encompasses on the part of those making decisions in judicial proceedings, notably juries, from art critics and the art 

establishment; and, where artistic merit is merely one of number of a relevant factors to be taken into account, the ease with 

which other factors can be considered to outweigh the artistic merit. Its conclusion is that the difficulties are such that in 

practice art cannot effectively be excluded, in all instances, from the scope of obscenity provisions and some degree of 

conflict between art and obscenity law is inevitable. 

Introduction and meaning of terms 

Tr a d i t i o n a l l y, legal controls over material or conduct which involves nudity and/or is sexually explicit 

have been expressed in terms of the concepts of obscenity and/or indecency. The essential characteristic 

of obscenity, in its ordinary meaning, is offending against the recognised standards of propriety or 

m o d e s t y — as it is for indecency, albeit to a lesser degree. Thus the S h o rter Oxford English Dictionary d e f i n e s 

‘obscene’ as ‘offensive to modesty or decency; expressing or suggesting lewd thoughts’ and as ‘offensive 

to the senses or the mind; disgusting, filthy’, and ‘indecency’ as ‘unbecoming; in extremely bad taste, 

unseemly’ and ‘offending against propriety or delicacy; immodest; suggesting or tending to obscenity’. 

This ordinary meaning might be adopted by courts where the term ‘obscene’ or ‘indecent’ has been used 

in legislative provisions without further definition. Thus in England, Lord Parker CJ in R v Stanley s t a t e d 

that the words ‘indecent or obscene’ which appear in s 11 of the Post Office Act 1953 ‘convey one idea, 

n a m e l y, offending against the recognised standards of propriety, indecent being at the lower end of the 

1 Senior Lecturer in Law, University of Birmingham, England. I am grateful to my colleague David Salter for his 

comments on an earlier draft of this article. 

(1999) June 65

M A N C H E S T E R 

scale and obscene at the upper end of the scale’. 2 Similarly in Australia Windeyer J in C rowe v Graham, 

when considering the meaning of the same words in s 16 of the Obscene and Indecent Publications Act 1901- 

1955 (NSW), remarked: ‘The question still is — does the publication, by reason of the extent to which it 

deals with sexual matters, transgress the generally accepted bounds of decency? Common sense and a 

sense of decency must supply the answer. ’ 3 Whilst Windeyer J in this case linked ‘indecent’ with sexual 

matters, there is no indication in S t a n l e y that the ordinary meaning applies only to material or conduct 

involving such matters and it has been recognised that it may extend beyond this. 4 In some instances, 

h o w e v e r, the legislature has sought to prescribe the type of material or conduct covered and to focus on 

sexual or sex-related aspects. Section 159(8) of the Canadian Criminal Code, for instance, provides that 

any publication a dominant characteristic of which is the undue exploitation of sex, or sex and 

any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be 

deemed to be obscene. 

But courts and legislatures have not always adopted the ordinary meaning as the legal meaning. The 

meaning of ‘obscene’ adopted by the English common law for the common law offence of obscene libel was 

whether a publication had a tendency to deprave and corrupt those whose minds were open to immoral 

influences and into whose hands it may fall. This meaning, formulated by Cockburn CJ in R v Hicklin 5 in 1868, 

was adopted in other common law jurisdictions, including Australia. 6 The meaning has in substance been 

retained by the legislature in England in the Obscene Publications Act 1959, 7 which remains the major statutory 

provision regulating obscene material in English law, although in Australia it has been largely abandoned or 

ignored in more recent times. 8 The Hicklin formulation, like the ordinary meaning of ‘indecent’ or ‘obscene’, 

gives no indication as to the types of publication which can tend to deprave and corrupt and courts have 

taken the view that it is not restricted to ones involving nudity and/or which are sexually explicit. 9 

2 [1965] 2 QB 327, 333. See also R v Anderson [1972] 1 QB 304, 311-312, where Lord Wi d g e ry CJ stated: ‘So far as the Post 

Office count is concerned, there is no doubt in our judgment but that obscene in its context as an alternative to indecent 

has its ordinary or as it is sometimes called dictionary meaning. It includes things which are shocking and lewd and 

indecent and so on’. 

3 (1968) 41 ALJR 402, 410. Windeyer J went on to state (411-412): ‘ ... however obscenity and indecency be understood 

as grounds for the condemnation of a publication, the question is to be related to contemporary standards, community 

standards ... Contemporary standards are those currently accepted by the Australian community ... And community 

standards are those which ordinary decent minded people accept.’ 

4 Lord Reid, for example, in Knuller v DPP [1973] AC 453, 458 proclaimed that ‘indecency is not confined to sexual 

indecency; indeed it is difficult to find any limit short of saying that it includes anything which an ordinary decent man 

or woman would find to be shocking, disgusting or revolting’. 

5 (1868) LR 3 QBD 360, 371. 

6 See, for example, Ex parte Collins (1888) LR (NSW) 497 (NSW) and R v Close [1948] VLR 445 (Vic). In the latter case, the court 

appeared to adopt a dual test of whether a publication was obscene according to the ordinary meaning of the word and 

whether it had a tendency to deprave and corrupt: ‘There is no obscene libel unless what is published is b o t h o f f e n s i v e 

according to current standards of decency a n dcalculated or likely to have the effect described in H i c k l i n’, Fullager J, 463. 

7 The H i c k l i nformulation, contained in s 1 of the Act, was modified so that the tendency to deprave and corrupt was to be 

judged by reference to the likely audience rather than the most vulnerable members of society (those whose minds are 

open to immoral influences) and so that material was to be judged as a whole rather than by any isolated parts or aspects. 

8 See, for example, C rowe v Graham (1968) ALJR 402 (NSW), Mackinlay v Wi l e y [1971] WAR 3 (WA), Popow v Samuels ( 1 9 7 3 ) 

4 SASR 594 (SA). 

9 In John Calder (Publications) Ltd v Powell [1965] 1 QB 509, the Divisional Court in England upheld a ruling by 

magistrates that a book highlighting the favourable effects of drug-taking was obscene, in that it incited people to 

take drugs and as such was corrupting. Lord Parker CJ stated (515): ‘In my judgment, there is no reason whatever to 

confine obscenity and depravity to sex’. See also R v Skirving [1985] 2 All ER 705. 

66 media & arts law review — vol ❹ no ❷


In more recent years, there has, in some jurisdictions, been a move away from traditional terms like 

‘obscene’ or ‘indecent’ in favour of terms like ‘offensive’ or ‘objectionable’. 1 0 These might be employed 

either instead of or in addition to the traditional terms. In England, for example, the Williams Committee 

on Obscenity and Film Censorship recommended the former approach, taking the view that the existing 

variety of laws in this field should be scrapped and terms such as ‘obscene’, ‘indecent’ and ‘deprave and 

corrupt’ should be abandoned as having outlived their usefulness. 1 1 The Committee thought they should 

be replaced with a comprehensive new statute, under which the availability of material should be restricted 

so that it does not cause offence to reasonable people or is accessible to children. 1 2 Had the Committee’s 

recommendations been implemented, the restriction on availability would not have been confined to 

material that involved nudity and/or which was sexually explicit. Restrictions were to apply to: 

matter (other than the printed word) and to a performance whose unrestricted availability is 

offensive to reasonable people by reason of the manner in which it portrays, deals with or relates 

to violence, cruelty or horror, or sexual, faecal or urinary functions or genital organs. 1 3 

In New Zealand, the term ‘objectionable’ has been adopted, in preference to the term ‘obscene’, in the 

Films, Videos and Publications Classification Act 1993. A publication is ‘objectionable’ if it: 

describes, depicts, expresses, or otherwise deals with matters such as sex, horror, crime, cruelty 

or violence in such a manner that the availability of the publication is likely to be injurious to 

the public good. 1 4 

The term ‘objectionable’ has similarly been employed in the Censorship Act 1996 in Western Australia, 

although this statute also retains the traditional terms of ‘indecent or obscene’. 1 5 The latter terms, being 

undefined, might not be restricted to material or conduct involving nudity and/or which is sexually 

explicit, and ‘objectionable’ will also not be so restricted, for it is defined to extend to beyond this. It can 

10 This trend has been accompanied by a move towards criminalising possession of material in addition to its distribution or 

c i rculation. There are various possession offences, some of which carry sentences of imprisonment — for example, in 

Western Australia the Censorship Act 1996 s 40(4) provides: ‘A person who possesses or copies child pornography is guilty 

of a crime, and is liable to imprisonment for five years. ’ Similarly, in England, the Criminal Justice Act 1988 s 160(1) provides: 

‘It is an offence for a person to have any indecent photograph or pseudo-photograph of a child in his possession’, and the 

maximum penalty (under s 160(3), as amended by the Criminal Justice and Public Order Act 1994, s 86(1)) is a term of 

imprisonment not exceeding six months or a fine not exceeding level 5 on the standard scale [which is £5,000]. 

11 R e p o rt of the Committee on Obscenity and Film Censorship (Cmnd 7772, 1979) (Williams Committee Report ) R e c o m m e n d a t i o n s 

1 and 2. 

12 Recommendations 1 and 4. 

13 Recommendation 7. 

14 Section 3(1). Section 3(2) goes on to provide that a publication shall be deemed to be objectionable if it promotes or 

supports, or tends to so promote or support (a) the exploitation of children and/or young persons for sexual purposes; 

or (b) the use of violence or coercion to compel any person to participate in or submit to sexual conduct; or (c) sexual 

conduct with or upon the body of a dead person; or (d) the use of urine or excrement in association with degrading 

or dehumanising conduct or sexual conduct; or (e) bestiality; or (f) acts of torture or the infliction of extreme violence 

or extreme cruelty. In determining whether any particular publication is objectionable, s 3(3) provides that particular 

weight shall be given to the extent and degree to which, and the manner in which, the publication deals with various 

matters; eg, exploitation of the nudity of children and/or young persons, promotion or encouragement of criminal 

acts or acts of terrorism. 

& me d i a 

a rt s 


15 See s 101, which contains various offences of using a computer service in connection with objectionable material such as 

transmitting, requesting the transmission or demonstrating articles known to be objectionable, and s 59, which contains 

various offences involving indecent or obscene articles, for example selling, supplying, possessing, or publicly displaying. 

(1999) June 67


include, inter alia, an article that promotes crime or violence, or incites or instructs in matters of crime or 

violence, and an article that describes or depicts, in a manner likely to cause offence to a reasonable adult, 

acts of torture or the infliction of extreme violence or extreme cruelty. 1 6 The terms ‘obscene’, ‘indecent’, 

‘offensive’ and ‘objectionable’ thus might, or might not, be limited to material or conduct involving 

nudity and/or which is sexually explicit. 

The concept of ‘pornography’, on the other hand, might be limited to such material, at least as regards 

its ordinary meaning. The Williams Committee on Obscenity and Film Censorship in England, 

considering the meaning of the term, stated: 

We take it that, as almost everyone understands the term, a pornographic representation is 

one that combines two features: it has a certain function or intention, to arouse its audience 

s e x u a l l y, and also a certain content, explicit representations of sexual material (organs, 

postures, activity, etc). 1 7 

It has been stated that this meaning coincides with the dictionary definition 1 8 but in more recent years, 

through the influence of feminist writings, the term has come to be associated in particular with 

representations of sexual material which are demeaning and degrading. As the New Zealand Committee 

of Inquiry into Pornography observed in 1989: 

the term ‘pornography’ in its now common and most useful meaning, derived from feminist 

writings ... refers ... to sexually explicit material which is demeaning or degrading to women (and 

sometimes to children or men). 1 9 

Attempts have been made to utilise the concept of ‘pornography’ as a basis for legal control, notably in 

the US with a civil rights ordinance drafted by two prominent feminist authors, Catherine McKinnon and 

Andrea Dworkin. 2 0 The ordinance sought to define pornography as: 

the graphic sexually explicit subordination of women through pictures and/or words that also 

includes one or more the following: (i) women are presented dehumanised as sexual objects, 

things or commodities; or (ii) women are presented as sexual objects who enjoy humiliation 

or pain; or (iii) women are presented as sexual objects experiencing sexual pleasure in rape, 

incest or other sexual assault; or (iv) women are presented as sexual objects tied up, cut up or 

mutilated or bruised or physically hurt; or (v) women are presented in postures or positions 

of sexual submission, servility or display; or (vi) women’s body parts — including but not 

limited to vaginas, breasts or buttocks — are exhibited such that women are reduced to those 

parts; or (vii) being penetrated by objects or animals; or (viii) women are presented in 

16 See s 99. 

17 Williams Committee Report, above n 11, [8.2]. 

18 New Zealand, Report of the Ministerial Committee of Inquiry into Pornography (1989) 27. 

19 Ibid, 28. 

20 The ordinance was drafted at the request of the city council of Minneapolis, Minnesota, passed by the city council, 

but subsequently vetoed by the mayor. A modified version was passed by the Indianapolis city council, signed by 

the mayor and became law, but its constitutional validity was almost immediately challenged on the ground that it 

infringed the right to freedom of speech guaranteed in the First Amendment to the US Constitution (on which see 

below notes 34-44 and text). The challenge proved to be successful and the ordinance was struck down by the 

Supreme Court: see American Booksellers Inc v Hudnut, 475 US 1001 (1986), affirming without opinion 771 F 2d 323 

(7th Cir, 1985). 



scenarios of degradation, humiliation, injury, torture, shown as filthy or inferior, bleeding, 

bruised, or hurt in a context that makes these conditions sexual. 21 

The term ‘art’, according to the Shorter Oxford English Dictionary, means (amongst other things) ‘skill 

applied to the acts of imitation or design’. The skill may be applied to create ‘works of art’, which 

traditionally have included works such as paintings, sculptures or engravings and more recently have 

encompassed new art forms and types of artistic works (for example, pop art or minimal art) 22 as well as 

new media such as films, videos and photography. The skill may be applied alternatively in creative 

performances (‘performance art’), which may themselves constitute ‘works of art’, whether or not they 

might be recorded in some tangible form such as on film, video or photograph. A legal meaning of ‘art’ 

may be in accordance with this definition. ‘Art’ may be defined as ‘a sphere of human activity dedicated 

to the expression of the aesthetic experience as substantiated in the creation of works of art’. 2 3 The legal 

meaning may, however, be narrower than this. It may be, depending on the context in which the term is 

used, that it will encompass only particular art forms. Any statutory restrictions on importing or exporting 

‘art’, for instance, would necessarily be confined to works of art (perhaps encompassing only older and 

more traditional works of art) and would not include performance art, at least where it is not recorded in 

a tangible form. Similarly, if works of art are excluded from prohibitions or restrictions on obscenity and 

p o r n o g r a p h y, but those prohibitions or restrictions are defined as having application only to tangible 

forms of material, performance act would be excluded, again unless recorded in a tangible form. 2 4 

It will be apparent from the examination above that the terms ‘obscenity’ (and the other related terms 

of ‘indecency’, ‘offensiveness’ and ‘objectionable’), ‘pornography’ and ‘art’ can have several shades of 

meaning and cannot be easily and readily defined. Further, definitional problems are compounded by 

the fact that all are essentially concerned with aesthetic matters, where the range of opinions is very 

wide, which makes determining whether something is obscene and/or pornographic and/or art an even 

more difficult task. 

The intersection of obscenity, pornography and art 

Whilst the terms ‘obscenity’ and ‘pornography’ may in large measure cover the same ground in respect 

of material or conduct involving nudity and/or which is sexually explicit, they need not be co-extensive 

and it is possible to draw some distinctions between them. The Williams Committee was of the view that 

the former term was a subjective one referring to people’s reactions to particular representations: 

... leaving aside the peculiar legal deprave and corrupt definition, it seems to us, insofar as it is 

not just used as a term of abuse, it principally expresses an intense or extreme version of what 

we have called ‘offensiveness’. It may be that it particularly emphasises the most strongly 

aversive element in that notion, the idea of an object’s being repulsive or disgusting. 25 

Pornography, on the other hand, the Committee felt was 

a rather more objective expression referring to a certain kind of writing, picture etc ... 

Pornography will have some tendency to be obscene, but will not necessarily be so ... a 

21 Andrea Dworkin and Catherine A McKinnon, Pornography and Civil Rights: A New Day for Women’s Equality (1988), 

138-139. The ordinance went on to provide that ‘the use of men, children, or transsexuals in place of women in ... 

this definition is also pornography ...’ 

22 See further below, n 81 and text. 

23 See Karlen, ‘What is Art?: A Sketch for a Legal Definition’ (1978) 94 Law Quarterly Review 383, 404. 

24 This is the case under the English Obscene Publications Act 1959 — see below n 55 and text. 


& me d i a 

a rt s 


(1999) June 69


tendency to be offensive is built into it, but it is not universally even offensive ... Still less must 

it inevitably be very strongly offensive or obscene. 26 

Can ‘art’ be pornographic or obscene or are the concepts — art on the one hand and pornographic or 

obscene works or conduct on the other hand — mutually exclusive? This seems to be a matter on which 

opinion is divided. As the Williams Committee observed, when referring to the evidence it had received 

from many witnesses on this area, ‘some ... were as certain that there could not possibly be an obscene 

work of art as others were that there could be’. 2 7 Perhaps the same could be said of a pornographic work 

of art. Art might be considered pornographic (as ordinarily defined), since it may take the form of writings, 

pictures and so on featuring explicit representations of sexual material 2 8 and may have the intention of 

sexual arousal. However, art in such a form (such as various 18th century Japanese prints of Utamaro and 

others) might be distinguished from pornography on the basis that pornography’s o n l y intention is sexual 

arousal, whereas any intention of sexual arousal in art might be seen as integrally bound up with its merits 

as an expressive design. 

E q u a l l y, art might be considered obscene (as ordinarily defined), since what is portrayed may be 

(strongly) offensive to those who observe it. Indeed, in some cases, offensiveness may have been intended 

and the artist may have wished deliberately to cause offence or shock to those witnessing his work, shock 

not infrequently being used by artists and others with a message to convey. Art which is offensive, 

h o w e v e r, may perhaps, at least in part, be distinguished from obscene representations on the basis that it 

may only be initially offensive and its merits become apparent once the offensiveness is past: 

[a] work ... may be experienced as offensive, and also be experienced as having aesthetic interest, 

but in the case of which the two experiences do not occur at the same time. These will be works 

which are found offensive at first, or by a spectator who remains distanced from them, but 

which lose that character for someone involved in them. 2 9 

Whilst this may distinguish some art from other obscene representations, it will not distinguish all art, 

f o r, as the Williams Committee recognised, ‘it would be unwise to deny that ... there could be works which 

were, and remained, offensive, indeed intensely offensive or obscene’. 3 0 

Likewise, if the legal meaning of obscenity is a tendency to deprave and corrupt, art might be regarded as 

obscene by having such a tendency. The implication of the ‘tendency to deprave and corrupt’ test is that the 

work or publication in question should have some kind of deleterious effect on an individual, although the 

nature of the effect is hard to specify. 3 1 In view of this, courts have, perhaps not surprisingly, showed a 

reluctance to provide further guidance on the meaning of these words3 2 and seem to have determined cases 

26 Ibid, [8.1] and [8.6]. 

27 Ibid, [8.1]. 

28 Such representations may need to be demeaning and degrading if they are to fall within the meaning commonly 

attributed to the term ‘pornography’ in recent years — see above n 19-21 and text. 


30 Ibid, [8.15]. 

31 Ibid, [2.6]. It seems that the effect is primarily on the mind. In R v Hicklin (1868) LR 3 QBD 360, 371, Cockburn CJ 

referred to the publication in question encouraging ‘thoughts of a most impure and libidinous character’ and in DPP 

v Whyte [1972] 2 All ER 12 the House of Lords stressed that it was not necessary that any physical sexual activity 

should result from exposure to the publications. It was sufficient, their Lordships stated, if exposure had an effect on 

the mind, including the emotions. 

32 The English Court of Appeal in R v Calder & Boyars Ltd [1968] 3 All ER 644, 647, referring to the Obscene Publications 

Act 1959, s 1 (which defines ‘obscene’ as a tendency to deprave and corrupt) stated: ‘Where, as here, a statute lays 

down the definition of a word or phrase in plain English, it is rarely necessary and often unwise for the judge to 

attempt to improve upon or re-define the definition’ (Salmon LJ). 



more by reference to ordinary meaning (offending against recognised standards of propriety) than any 

causal effect. 3 3 A c c o r d i n g l y, if cases involving art are determined by reference to the ordinary meaning of 

offensiveness, art might be seen as having a tendency to deprave and corrupt and as obscene in this sense. 

The approach of the law 

Exclusion of art from obscenity provisions 

Although art might be regarded as either pornographic or obscene, this does not necessarily mean that 

the law will so regard it or, if it does, that legal sanctions or penalties should thereby be incurred. The law 

might, in various ways, seek to exclude art from the scope of obscenity provisions. These could include 

the following approaches: 

(a) Obscenity defined to exclude artistic work 

A legal definition of ‘obscene’ might be employed (either by legislatures or courts) which excludes works 

of art. This approach has been taken in America by the US Supreme Court, although the extent to which 

artistic work has been excluded from the definition has varied according to the formulation which has been 

adopted. In Roth v US3 4 and Memoirs of a Woman of Pleasure v Massachusetts, 3 5 the Supreme Court required 

a work to be ‘utterly without redeeming social value’ for it to be obscene, which suggests (because a 

complete absence of a n y social value has to be shown) that any work with a claim to artistic merit, perhaps 

however tenuous, would not be obscene. However, in Miller v Californ i a3 6 the Supreme Court subsequently 

departed significantly from this standard (which the Court thought created for the prosecution ‘a burden 

virtually impossible to discharge’ 3 7 ) by holding that a work can be obscene if, taken as a whole, it lacks 

serious literary, artistic, political or scientific value. 3 8 A c c o r d i n g l y, work which might have s o m e a r t i s t i c 

merit (and social value) may nevertheless be obscene if the merit (and value) is not considered sufficiently 

‘ s e r i o u s ’ . 3 9 Art which might previously have been found not to be obscene under the more stringent ‘utterly 

without redeeming social value’ test might now be found to be so. 

Although art might be more likely to be found obscene under the revised test in M i l l e r, the scope for 

material (artistic or otherwise) being found obscene is nevertheless restricted by the First Amendment to 

the US Constitution, which provides that ‘Congress shall make no law ... abridging the freedom of speech’ 

Whilst the US Supreme Court in Roth v US 4 0 held that obscene material was not constitutionally protected 

speech under the First Amendment and its dissemination could be prohibited, the prohibition extends only 

to material that is obscene under the M i l l e r formulation. Material that falls short of being ‘obscene’ (and is 

only ‘indecent’) cannot be prohibited and is entitled to protection, provided it involves expressive and 

communicative content (as is likely to be the case with material that might be regarded as art). 4 1 

33 It was the view of the Williams Committee [2.10] that ‘the literal sense of the statutory test of obscenity has been 

ignored, and the courts have applied their own assessment of what the public at large are prepared to accept and 

tolerate. ’ 

34 354 US 476 (1957). 

35 383 US 413 (1966). 

36 413 US 15 (1973). 

37 Ibid, 22. 

38 See also below, nn 82-88 and text. 

39 As Brennan J observed in his dissent in Paris Adult Theater I v Slaton, 413 US 49, 97 (1973), ‘[t]he Court’s approach 

necessarily assumes that some works will be deemed obscene — even though they clearly have some social value — 

because the State was able to prove that the value, measured by some unspecified standard, was not sufficiently 

“serious” to warrant protection’. 

40 354 US 476 (1957). 

& me d i a 

a rt s 


41 Artistic freedom, as part of freedom of expression, is thus afforded some constitutional protection in the United 

States, although such freedom may not be a consideration that has to be taken into account when reaching decisions 

(1999) June 71


H o w e v e r, it is well established that constitutionally protected ‘indecent’ speech might be subject to 

restrictions and be regulated as to the time, place and manner of such speech. As the Supreme Court observ e d 

in Grayned v City of Rockford, ‘[o]ur cases make ... clear ... that reasonable ‘time, place and manner’ regulations 

may be necessary to further significant governmental interests, and are permitted’. 4 2 In this case, the Court 

upheld a local ordinance that prohibited disruptive conduct near schools, which civil rights demonstrators 

had been charged with violating by picketing outside a school. The governmental interest in preventing 

school disruptions was balanced against the pickets’ interest in conducting their demonstration next to a 

school, to see whether the restriction on speech imposed by the ordinance was a reasonable one. It was held 

that it was, because the benefit of classroom order was greater than the burden of relocating the 

demonstration. Similarly, in Young v American Mini-Theaters Inc4 3 the government interest in preventing 

offence to those who choose not to view pornographic material was balanced against the interest of patrons 

and proprietors of adult bookstores and theatres having access to such material to see whether a zoning 

ordinance which sought to confine adult entertainment establishments to particular localities was a 

reasonable one. It was held that it was, since the ordinance left the access to and volume of adult 

entertainment essentially undiminished, as there remained many locations where adult entertainment 

establishments might continue to operate. As regards works of art that might be indecent, a similar balancing 

of interests arises between preventing offence to those who do not wish to view and allowing the work of 

artists to be exhibited to those who do wish to view. Thus, whilst indecent works might not be prohibited, 4 4 

they may be subject to reasonable ‘time, place and manner’ restrictions on their display or location. 

(b) Circumstances of dissemination negating obscenity or precluding legal action 

Even if obscenity is not specifically defined to exclude artistic work, the circumstances in which such 

work is disseminated may negate any finding of obscenity. Thus obscenity may be regarded as a relative 

concept: work or material might be classed not as obscene per se but as obscene by reference to the 

c i rcumstances of its dissemination. This approach has been taken in England, where, under s 1 of the 

Obscene Publications Act 1959, an article is deemed to be obscene only if its effect, taken as whole, is such 

as to tend to deprave and corrupt persons who are likely to read, see or hear the matter contained or 

embodied in it. 4 5 Traditional works of art displayed at venues such as galleries might, therefore, not be 

regarded as obscene, although display of them (or copies of them) elsewhere might be. That courts might 

treat differently works of art exhibited in galleries from their display elsewhere can be seen, for example, 

from the Australian case of In re Jacobs, where a bookseller was successfully prosecuted for selling an art 

book, and where it was stated: 

in other jurisdictions, for example, it is not one of the matters to be taken into account in making a decision on 

classification under the Classification (Publications, Films and Computer Games) Act 1995 s 11 in Australia (on which 

see below note 60 and preceding text). 

42 408 US 104, 115 (1972) (Marshall J). 

43 427 US 50 (1976). 

44 But see the examples referred to below at nn 99-102, which demonstrate that prohibition can occur and may not be 

the subject of legal challenge. 

45 There must be a tendency to deprave and corrupt a significant proportion of those persons — see below n 71. In some 

instances, legislation may provide that the circumstances are not relevant to determining obscenity or indecency. In 

South Australia, for example, theSummary Offences Act 1953 s 33 contains a number of offences in respect of indecent 

or offensive material and s 33(4) provides that ‘[i]n proceedings for an offence against this section, the circumstances 

of the production, sale, exhibition, delivery or possession of material to which the charge relates will be regarded as 

irrelevant to the question of whether or not the material is indecent or offensive material’. The SA Court of Criminal 

Appeal in Phillips v SA Police (1994) 75 A Crim R 480 has criticised this provision: ‘Section 33(4) seems to have been 

drawn on the footing that there is material which is either inherently indecent or obscene. The proposition is, I think, 

fallacious and the requirements of s 33(4) might lead to future difficulty. It is not difficult to postulate that certain 

material might be indecent in some circumstances but not in others’, 492 (Debelle J). 



It was very probable that ... the photographs were copies of works of art by distinguished 

masters, but it would depend on circumstances whether such reproductions of naked women 

were obscene or not. In galleries or museums mixed with other pictures or sculpture, and looked 

at merely as beautiful works of art, these would not be so considered; but it would be monstrous 

to say that a collection of 500 photographs of naked women, in all imaginable attitudes, offered 

for sale as these were, and some of them actually exhibited in the window of a shop in public 

thoroughfare within 100 yards of King Edward’s School, where 500 boys were educated, was not 

obscene or indecent. 4 6 

A l t e r n a t i v e l y, the view might be taken that works of art may be obscene, even if displayed in galleries or 

at similar venues, but the circumstances of dissemination in such instances should preclude legal action and 

not result in the institution of legal proceedings. The first English statute regulating obscene material, the 

Obscene Publications Act 1857, was based on this premise. This Act — which formed a model for legislation 

adopted in a number of other jurisdictions, including Australia 4 7 — sought to confer on the police a power 

to seize under warrant material believed to be obscene and seek its destruction before a magistrate. Some 

concern was expressed during the course of the legislation’s passage that these powers might be invoked 

against recognised literary or artistic works in which obscenity may be present and, in order to accommodate 

these concerns, an amendment was incorporated requiring the magistrate to be satisfied that the materials 

kept were ‘of such a character and description that the publication of them would be a misdemeanour, and 

proper to be prosecuted as such’. 4 8 Lord Lyndhurst, introducing the amendments at the suggestion of the 

l e g i s l a t i o n ’s sponsor, Lord Campbell, stated in respect of the latter requirement: 

The magistrate must ... be satisfied that the case is a proper one for prosecution, so that if 

indecent passages were taken out of such authors as Dryden and Pope, he would say ‘Although 

these are very indecent passages, and ought never to have been inserted in these works, yet this 

is not a case for a prosecution’. 4 9 

Whilst these remarks were made in respect of literary works, they would seem to have equal application 

to works of art. Although works of art may be obscene, when displayed at galleries and similar venues, a 

magistrate may take the view that this is not a case for prosecution and for the exercise of powers of 

d e s t r u c t i o n . 5 0 

In the above instance, it would be the court itself, in the form of the magistrate before whom the 

material was brought for destruction, that would decide whether the circumstances of dissemination 

should preclude legal action. In other instances, where prosecution is contemplated, it will be a matter of 

discretion for the prosecuting authorities. It may be decided that where works of art are involved no 

proceedings should be instituted or, if instituted, should be discontinued. Thus, for example, when the 

magazine A rt in Australia published in its December 1930 issue some of the artistic work of Norman 

Lindsay (featuring male nudes), the publishers were summonsed to answer charges of selling obscene 

46 37 JP 235, 236. 

47 Between 1876 in Victoria and 1902 in Western Australia all Australian States passed legislation modelled on the 1857 

Act. 

48 See Obscene Publications Act 1857 s 1. 

49 Parl Debs (3rd series), vol 146, col 1360 (13 July 1857). 

50 The present provisions in England, contained in the Obscene Publications Act 1959 s 3 (which replaced the Obscene 

Publications Act 1857), do not contain a requirement for the magistrate to be satisfied that the case would be a proper 

one for prosecution, since a defence of public good on the grounds of, inter alia, artistic and literary merit is now 

available under s 4 of the 1959 Act (unlike under the 1857 Act). As to public good and artistic merit as a defence, see 

below, nn 53-59 and text. 

& me d i a 

a rt s 


(1999) June 73


material and to show cause why copies seized should not be destroyed, but the summonses were 

subsequently withdrawn. Although the case proceeded to trial, it was adjourned and, following 

i n t e rvention by the Attorney General, proceedings were discontinued. 5 1 Little is known or appears to have 

been written on how prosecutorial discretion is exercised in cases involving works of art, but the need for 

a sensitive exercise of discretion in such cases may be recognised by the prosecuting authorities. This has 

been recognised in England, for example, where no formal guidance is issued to local Crown prosecutors 

in respect of obscenity cases involving works of art, but there is a requirement for ‘reference upwards’ in 

such instances. Cases are referred for examination and decision at a higher level by the Central Casework 

Division of the Crown Prosecution Service in London. This has also been recognised in Western Australia, 

where a standing advisory committee has been established in order to assist the police in their assessment 

of art. 5 2 

(c) Artistic merit as a defence to legal action 

Whilst works of art might be considered obscene, it might nevertheless be felt to be in the public interest 

or for the public good that they be displayed or disseminated on account of their artistic merit. The artistic 

merit of the work may be regarded as outweighing its obscenity, as being of overriding importance and as 

providing a defence to the imposition of legal sanctions or penalties. It is not clear that the English 

common law recognised artistic merit as a defence — Stephen’s view was that it did, 5 3 although there 

appears to be no decided (English) case of a higher court to substantiate this 5 4 — but such a defence has 

been introduced by legislatures in a number of jurisdictions, including England and Australia. Thus, in 

England s 4(1) of the Obscene Publications Act 1959 provides that a person shall not be convicted of an 

offence of publishing an obscene article nor be subject to an order for forfeiture ‘if it is proved that the 

publication of the article in question is justified as being for the public good on the ground that it is in 

the interest of science, literature, art or learning, or of other objects of general concern.’ 5 5 This defence 

could have application in respect of artistic material in a variety of forms, since ‘article’ is widely defined 

in s 1(2) to include ‘any description of article containing or embodying matter to be read or looked at or 

both, any sound record, and any film or other record of a picture or pictures’. However, it may not be all 

51 Joseph Lamaro, appointed Attorney General a week after the hearing had been adjourned (on 10 June 1931), 

subsequently stated: ‘I do not feel proceedings should be instituted against the publishers of Art in Australia. The 

publication has been in existence for several years. It is artistic, aimed at encouraging Australian art. It has devoted a 

special number to each of the great Australian artists. In all its issues, or at least probably all except this one, no 

question of obscenity arises. I take it that on the score of ability Norman Lindsay is entitled to a “number”, but Art 

in Australia cannot be branded as obscene’: New South Wales Chief Secretary, Investigations of Indecent and Obscene 

Publications, 1925-41, file B31//3002. 

52 The committee was set up following the Petrillo case — see below, nns 63-64 and text. 

53 Sir James Fitzjames Stephen, Digest of the Criminal Law (1877) 105: ‘A person is justified in exhibiting disgusting 

objects, or publishing obscene books, papers, writings, prints, pictures, drawings or other representations, if their 

exhibition or publication is for the public good, as being necessary or advantageous to religion or morality, to the 

administration of justice, the pursuit of science, literature or art, or other objects of general interest; but the 

justification ceases if the publication is made in such circumstances as to exceed what the public good requires in 

regard to the particular matter published’. 

54 Although Stephen’s statement was expressly approved by Sir Ernest Wild, the Recorder of London, in his summing 

up to the jury at the Central Criminal Court in De Montalk, no comment was made on this point by Lord Hewart CJ 

when the case went on appeal to the Court of Criminal Appeal (see (1932) 23 Cr App R 182). 

55 This provision is expressed to be subject to subs (1A) of this section, which provides that ‘Subsection (1) shall not 

apply where the article in question is a moving picture film or soundtrack, but (a) a person shall not be convicted of 

an offence against section 2 of this Act in relation to any such film or soundtrack, and (b) an order of forfeiture of 

any such film or soundtrack shall not be made under section 3 of this Act, if it is proved that publication of the film 

or soundtrack is justified on the ground that it is in the interest of drama, opera, ballet or any other art, or of literature 

or learning’. 



inclusive. It would not, for example, seem to encompass ‘performance art’, unless the performance was 

recorded in some tangible form such as a video. 5 6 A defence of public good might nevertheless be available 

in respect of ‘performance art’ (which is not recorded) under the T h e a t res Act 1968. Section 3(1) of that 

Act provides: ‘A person shall not be convicted of an offence under s 2 of this Act [presenting or directing 

an obscene performance of a play] if it is proved that the giving of the performance in question was 

justified as being for the public good on the ground that it was in the interests of drama, opera, ballet 

or any other art, or of literature or learning’. The definition of ‘play’ in s 18(1)(a) of the Act — ‘any 

dramatic piece, whether involving improvisation or not, given wholly or in part by one or more persons 

present and performing and in which the whole or major part of what is done by such person or 

persons, whether by way speech, singing or acting, involves the playing of a role’ — would seem to be 

wide enough to include performance art and the performance artist could be said to be ‘presenting’ such 

a performance. 5 7 

A defence of artistic merit has similarly been recognised in Australia. Thus, in Victoria, s 70(2)(b) 

of the Crimes Act 1958 provides that it is a defence to a charge of possession of child pornography to 

prove that the film, photograph, publication or computer game in question possesses ‘artistic merit 

or is for a genuine medical, legal, scientific or educational purpose’, although s 70(3) goes on to 

provide that ‘the defence of artistic merit cannot be relied on in a case where the prosecution proves 

that the minor was actually under the age of 16 years’. Similarly, in South Australia, s 33(5)(b) of the 

S u m m a ry Offences Act 1953 provides that no offence involving indecent or offensive material is 

committed by reason of the production, sale, exhibition, delivery or possession of material that 

constitutes, or forms part of, a work of artistic merit if, having regard to the artistic nature and purposes 

of the work as a whole, there is no undue emphasis on its indecent or offensive aspects. Again, in 

Western Australia, under the Censorship Act 1996, proof that the article is of recognised literary, artistic 

or scientific merit or a bona fide medical article, and that its dissemination is justified as being for the 

public good is a defence to various offences under the Act. By s 58, these include the offences of 

disseminating or possessing indecent or obscene articles under s 59 and child pornography under s 60, 

and, by s 101(2) it is a defence to the offence under s 101(1) of using a computer service to 

disseminate an article containing objectionable material. 

Implicit in the concept of artistic merit as a defence is a recognition that a distinction can be drawn 

between good and bad art. Courts, perhaps understandably, have found it difficult to draw such a 

distinction and have not regarded themselves as particularly well equipped to do so. As Holmes J remarked 

in the US case of Bleistein v Donaldson Lithographing Company: 

It would be a dangerous undertaking for persons trained only to the law to constitute themselves final 

judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits. At the 

one extreme some works of genius would be sure to miss appreciation. Their very novelty would 

make them repulsive until the public had learned the new language in which their author spoke. It 

may be more than doubted, for instance, whether the etchings of Goya or the paintings of Manet 58 

56 This would be included, since this would constitute an ‘other record of a picture or pictures’: Attorney-General’s 

Reference (No 5 of 1980) [1981] 1 WLR 88. 

57 Section 18(2)(a) provides that ‘a person shall not be treated as presenting a performance of a play by reason only of 

his taking part therein as a performer’, but this should not prevent a performance artist from being regarded as 

‘presenting’ a performance. This provision was presumably included to prevent persons whose role was limited only 

to acting or participating (with no other responsibility beyond this) from committing an offence, whereas a 

performance artist’s role is unlikely to so restricted. 

58 The paintings of Manet in the 1860s are generally considered to represent the beginning of the Modernist period of 

art and proved to be controversial at the time. When Le Dejeuner sur l’herbe was first shown in 1863, for example, it 

caused outrage because of its casual depiction of nudity coupled with its unconventional paint style. 

& me d i a 

a rt s 


(1999) June 75


would have been sure of protection when seen for the first time. 5 9 

A c c o r d i n g l y, courts have been receptive to the admission of expert evidence as to artistic merit when 

considering this as a defence. Indeed, legislative provisions may well make specific provision for the 

admission of expert evidence either in support of, or in order to negate, the defence. In England, for 

example, s 4(2) of the Obscene Publications Act 1959 provides: ‘It is hereby declared that the evidence of 

experts as to the literary, artistic, scientific or other merits of an article may be admitted in any proceedings 

under this Act either to establish or to negative the said ground’. Similarly, in NSW, for the offence of 

publishing indecent articles under s 578C of the Crimes Act 1900, s 578C(6) provides: 

In any proceedings for an offence under this section in which indecency is in issue, the opinion 

of an expert as to whether or not an article has any merit in the field of literature, art, medicine 

or science (and if so, the nature and extent of that merit) is admissible as evidence. 

(d) Artistic merit as a relevant consideration 

If no specific provision is made for the exclusion of art from the scope of obscenity provisions in 

accordance with any of the approaches mentioned above, artistic merit may nevertheless be recognised as 

a relevant consideration to be taken into account along with other factors in reaching a decision. Such an 

approach is adopted in Australia in the Classification (Publications, Films and Computer Games) Act 1995 

(Cth), s 11 of which provides: 

The matters to be taken into account in making a decision on the classification of a publication, a film or 

a computer game include: 

( a ) the standards of morality, decency and propriety generally accepted by reasonable adults; and 

( b ) the literary, artistic or educational merit (if any) of the publication, film or computer game; and 

( c ) the general character of the publication, film or computer game, including whether it is of a 

medical, legal or scientific character; and 

( d ) the persons or class of persons to or amongst whom it is published or is intended or likely to 

be published. 

This approach may or may not result in works of art being excluded from obscenity provisions. It will 

depend on what weight is given to artistic merit relative to other relevant considerations. Artistic merit 

may be regarded as paramount and as outweighing other factors, in which case works of art will be 

excluded. But equally, whilst artistic merit may be recognised and taken into account, other factors may 

be regarded as of overriding importance, with the result that works of art are not excluded. 6 0 

Consistency of approach 

The law might adopt any of the above approaches in seeking to exclude art from obscenity provisions 

and thereby treat art differently from other obscene work. Depending on the approach adopted, art might 

59 188 US 239, 251 (1903). Similar sentiments were expressed by Harper J in Pell v Council of Trustees of the National Gallery 

of Vi c t o r i a [1998] 2 VR 391 (on which, see below, nn 77-79 and text), when adverting to the relevance of a photograph 

being displayed in a gallery and being reproduced in a book of scholarship by an eminent art critic: ‘It is necessary to 

say at once, however, that their relevance is not attributable to any assumption by me of the role of art critic. It would 

not merely be presumptuous, but quite wrong, of me to attempt any such thing. It is not relevant to my task, and it 

would take the court into places in which it has no business to be. There is much wisdom, in this context, in the words 

of Landau, J, the Israeli judge who presided over the trial of Adolf Eichmann. The courts, he said, speak with an authority 

whose very weight depends upon its limitations. No one has made us judges of matters outside the realm of law’. 

60 The film Salo or 120 Days of Sodom provides an instance of where this has been the case — see below, nn 94-98 and text. 



be protected to a greater or lesser extent. If obscenity is defined to exclude artistic work or if artistic merit 

is a defence to legal action, the protection ought to be greater, at least in theory, than if artistic work is 

dependent on the circumstances of its dissemination to negate obscenity or to preclude legal action, or if 

artistic merit is merely a relevant consideration to be taken into account with other factors. In the former 

instances, the artistic merits of the work might per se be sufficient for the work to be treated differently, 

whereas in the latter instances they might not. Artistic merit, even if recognised and acknowledged, might 

not result in the work being treated differently if the circumstances of dissemination are not considered to 

justify this or if other relevant considerations are considered to outweigh artistic merit. 

If the law were to take a consistent approach, one particular method for excluding art from obscenity 

provisions would be adopted. In practice, however, consistency is often lacking because, in a particular 

jurisdiction, different methods for excluding art may be adopted. There may be a variety of different 

s t a t u t o ry provisions, as well as common law offences, in some of which one particular method is adopted, 

rather than another, for the exclusion of artistic work, or in others of which n o provision is made at all for 

exclusion. In England, for example, as indicated above, there is a defence of public good in the interests 

of art under both the Obscene Publications Act 1959 and the T h e a t res Act 1968. But no provision is made 

for the exclusion of art, either by way of a defence of public good or by adoption of any other method, 

under some other statutory provisions — for example, the P rotection of Children Act 1978 — or common 

law offences, such as outraging public decency. 6 1 S i m i l a r l y, in Western Australia different provision for the 

exclusion of art is made by the Censorship Act 1996. Section 58, for example, as indicated above, provides 

a defence for the offences of disseminating or possessing indecent or obscene material and child 

pornography if the defendant can prove that the article has recognised artistic merit and its dissemination 

is justified as being for the public good. By s 57, however, no such defence is available in respect of 

publications or films that are classified and, by s 8, in making a decision on the classification of a 

publication, the artistic merit, if any, of the publication is only one of a number of factors to be taken into 

a c c o u n t . 6 2 

The operation of law 

It can be seen from the previous section that the law has attempted in various ways to treat art 

differently from other obscene or pornographic material. How successful these attempts have been, 

h o w e v e r, is open to question, both in respect of traditional works of art and works of a less conventional 

kind. Over the course of the law’s history, works which would unquestionably be regarded as art, works 

which on occasions have been by artists of some repute, have from time to time come into conflict with 

the law. Whilst the law has sought to treat art differently, in practice, for various reasons, it has not always 

been able to do so. 

In the first instance, those responsible for administering and enforcing the law need not only to be 

aware that the law seeks to treat art differently but also be able to successfully distinguish what might 

61 For an example of a prosecution for this offence in respect of material which might be considered artistic, see Gibson 

[1991] 1 All ER 439, where there was an exhibition at a commercial art gallery of a model’s head to which were 

attached earrings made out of freeze-dried human foetuses. The Court of Appeal held that a provision in the Obscene 

Publications Act 1959 s 2(4), which precluded prosecutions at common law where the essence of the offence was the 

matter was obscene, only precluded prosecutions where the matter had a tendency to deprave and corrupt, not where 

it offended against recognised standards of propriety. Accordingly, since outraging public decency involved only the 

latter, and not the former, the provision did not preclude a prosecution for this common law offence. As the court 

recognised, this deprived the defendant of the opportunity of relying on a public good defence: ‘We should perhaps 

add that in this type of case, which is likely to be the subject of prosecution at common law, if this construction is 

correct it is unlikely that a defence of public good could possibly arise’, 444 (Lord Lane CJ). 

62 The factors that can be taken into account are the same as those contained in the Classification (Publications, Films 

and Computer Games) Act 1995 s 11 (on which see above, text preceding n 60). 

& me d i a 

a rt s 


(1999) June 77


constitute art from other obscene or pornographic material. It may not be easy to do so, since a lay observ e r 

may lack appreciation not only of artistic values and merits but also of the nature and scope of artistic work, 

given the considerable expansion in the boundaries of what might constitute art, to which reference is 

made below. 6 3 A c c o r d i n g l y, cases may arise from time to time where artistic material is seized and referred 

for prosecution. This has occurred recently both in Australia and in England in respect of material used by 

university students pursuing degree courses in art. One case in Western Australia concerned photographs 

taken by a (mature) student of her children in nude poses and one in England concerned photographic 

images taken from university library copy of a book about Robert Mapplethorpe and his work. 

In the former case, Concetta Petrillo, a student at the Edith Cowan University in Perth, as part of a 

project combining painting and photography, photographed her three sons, at the time (1995) aged 11, 

nine and five, in nude poses from famous paintings. The images were subsequently discovered by the 

police after they had been collected from a photographic laboratory and Petrillo was charged a few days 

later under s 320(6) of the Criminal Code Act Compilation Act 1913 with indecently recording a child under 

the age of 13. That the defendant was a diligent art student and devoted mother of the boys she had 

photographed, and manifestly not part of a child pornography ring, might have led to the charges being 

dropped, but this proved not to be the case. Following two years of preliminary hearings, the case went 

to trial. When it was heard, there was some surprise on the part of the judge that the case had proceeded 

so far. Nevertheless, a one and half day trial took place, although the prosecution proved to be 

unsuccessful. The jury, after retiring for several hours, found the defendant not guilty. 6 4 

In the latter case, the photographic images were from the book M a p p l e t h o r p e, by the artist Robert 

Mapplethorpe (with an introduction by Arthur C Danto), which had been published in 1992. The book 

comprised a collection of black and white photographs representing the artist’s work, ranging from early 

Polaroid photographs to the haunting self portraits taken shortly before his death. 6 5 A third year student 

in the University of Central England in Birmingham’s Institute of Art and Design had obtained the book 

from the University Library, intending to use photographs of images from the book in a major piece of 

coursework on ‘Fine Art versus Pornography’. The photographs had been taken for developing to a local 

chemist, who forwarded the negatives to the police. The West Midlands Police Paedophile and 

Pornography Squad visited the student’s flat, duly confiscated the book and referred it to the Crown 

Prosecution Service (CPS) for a decision on whether the work contravened the Obscene Publications Act 

1 9 5 9. The CPS’s initial advice to the police was that there were two photographs in the book which might 

contravene s 2 of the Obscene Publications Act 19596 6 and that there were grounds to ask the University for 

a voluntary destruction of its copy of the book. 6 7 The University, however, refused to allow voluntary 

63 See below, text following n 79. 

64 For further details of the case, see Alison Archer, ‘Crossing The Fine Line: The case of Concetta Petrillo’ (1997) 18:3 

Artline 54. Since the Petrillo case, a standing advisory committee has been set up, whose members include The Arts 

Law Centre of Australia, to assist the police in their assessment of art. 

65 The book, published by Jonathan Cape (now part of Random House Publishers), had been freely available in Britain 

since 1992 and had sold over 5,500 copies. 

66 The photographs in question were Helmut and Brooks, NYC, 1978, which shows a man ‘fisting’ (a form of anal sex) 

another man, and Jim and Tom, Sausalito, 1977, which features a man clad in a dog collar, a leather mask and trousers, 

urinating into another man’s mouth. 

67 The nature of this advice is rather unusual. The Obscene Publications Act 1959 provides two methods for dealing with 

obscene material; a prosecution under s 2 against persons who publish obscene articles and a procedure under s 3 for 

obscene articles to be seized and brought before a magistrate with a view to their forfeiture and destruction. No provision 

is made for destruction, voluntary or otherwise, without recourse to judicial proceedings. Requesting voluntary 

destruction seems akin to a practice previously employed by the police, which has been strongly criticised by the courts, 

of destroying material following the issuing of disclaimers, inviting persons from whom obscene material was seized to 

disclaim ownership of it. In R v Metropolitan Police Commissioner ex parte Blackburn (No 3) [1973] 1 All ER 324, 333, the 

issuing of disclaimers was described by Phillimore LJ as ‘an undesirable and possibly illegal procedure’. 



destruction of the book under any circ u m s t a n c e s6 8 nor would the publishers agree to remove the two 

photographs in question or to pulp the publication, 6 9 so the case was referred to the CPS for possible 

prosecution. Referred initially to the local CPS in Birmingham but transferred almost immediately to the 

specialised Central Casework Division in London for consideration, 7 0 a period of several months elapsed, 

perhaps suggesting that a prosecution against the University and against the publishers may be the 

favoured course. However, at the end of September 1998, almost one year after the book had been seized, 

the CPS announced that no prosecution would be instituted, having concluded that there was ‘insufficient 

evidence to provide a realistic prospect of conviction against any person or company’. In the CPS’s view, 

the book would not, if viewed as a whole, be held to be obscene — as having a tendency to deprave and 

corrupt a significant number of those who were likely to read it. 7 1 If only two of the 382 photographs 

contained in the book were considered to be obscene, the book as a whole would not be, and, since the 

book was likely to be consulted in the main by art students and artists, it was unlikely that a significant 

number of them would be depraved and corrupted by it. Further, the CPS was of the view that publication 

of the book could be justified as being for the public good. Relief on the part of the University and the 

publishers at the eventual outcome, however, was tempered by the long delay which had ensued before a 

decision had been reached. 7 2 

Although no proceedings were instituted in this instance, legal action has been taken against 

M a p p l e t h o r p e ’s work in other jurisdictions. When an exhibition of 175 photographs of Mapplethorpe’s 

work (comprising flowers, portraits, nudes and graphic sexual poses) was on tour in the US in 1990, it 

appeared in the cities of Chicago, Berkerley and Hartford without incident, but thereafter ran into 

c o n t r o v e r s y. Following vigorous opposition in Congress from Senator Jesse Helms, a planned exhibition 

at the Corcoran Gallery of Art in Washington was cancelled, but a scheduled exhibition at the 

C o n t e m p o r a ry Art Centre in Cincinnati went ahead. On the opening day, the exhibition was raided by 

the police who ordered visitors out of the gallery while photographs were videotaped as evidence to 

support criminal charges. Seven photographs, of the 175 exhibited, were alleged to be obscene. Five 

featured sexually explicit homosexual activities, 7 3 whilst two portrayed children with their genitals 

68 See University of Central England Media Release 2485, March 1998. 

69 Independent, 13 March 1998. Gail Rebuck, Chief Executive of the publishers, Random House, was reported as stating: 

‘We consider this investigation to be wholly misguided, and are astonished that a scholarly work of such 

acknowledged artistic and literary merit should be at risk of prosecution. We will be making representations through 

our lawyers that no action should be taken ...’ 

70 See above, nn 51-52 and text. 

71 A book will be obscene under the Obscene Publications Act 1959 s 1 ‘if its effect ... is, if taken as a whole, such as to 

tend to deprave and corrupt persons who are likely to read ... the matter contained or embodied in it’ and in R v 

Calder & Boyars Ltd [1969] 1 QB 151, 168, the Court of Appeal stated that this meant ‘to tend to deprave and corrupt 

a significant proportion of those persons likely to read it’. What is a significant proportion, the court went on to 

remark ‘is a matter entirely for the jury to decide’. 

72 The delay was strongly criticised by the University’s Vice Chancellor, Dr Peter Knight, who had earlier written to 

Dame Barbara Mills, the Director of the CPS, to complain about the time being taken to come to a decision. Dr Knight 

was reported as stating: ‘I’m relieved all this is over. It should never have started and clearly the CPS has finally come 

to its senses. The police made a misjudgment right at the beginning ... The CPS should have advised more speedily 

and sensibly. Instead it took a year when it could have been resolved in a week. I would like an apology from the CPS 

because it provides advice on which the police act and this has all taken a year’: Birmingham Post, 1 October 1998. 

The referral for prosecution and long delay pending a decision in this case might be contrasted with the approach 

taken by the West Midlands Police some years earlier when the Japanese film Ai No Corrida (In the Realm of the Senses), 

which had been given an 18 Certificate by the British Board of Film Classification, was shown at another university 

institution, the Warwick Arts Centre. Seized by officers on a Friday night, the film was personally returned by a chief 

superintendent first thing on the following Monday morning, with a fulsome apology for the over-zealousness of his 

officers — see Grimley, ‘A thin blue line divides art and porn’, Birmingham Post, 5 March 1998. 

me d i a 

&a rt s 


73 The photographs appear to have included the two that featured in the case in England (on which, see above n 66). 

(1999) June 79


exposed (a little girl with her dress pulled up and a little boy nude on a couch). Obscenity proceedings 

were subsequently instituted against the Centre and its director Dennis Barrie, in which the central issue 

was whether the photographs were works of art. If they were, as the defence argued, the photographs 

could not be obscene under the test in Miller v Californ i a. 7 4 If they were not, as the prosecution contended, 

they might be found obscene. Expert witnesses (of whom there were six) called by the defence appear to 

have persuaded the jury of the artistic merit of the photographs7 5 and the defendants were acquitted of 

the charges. 

A related matter which might in practice prevent art being treated differently from other obscene or 

pornographic material is that, even if those responsible for administering and enforcing the law choose 

not to take any action against a work which might be regarded as art, others may seek to invoke the law 

against it. In some instances, there may be constraints on private individuals or bodies acting — in 

England, for instance, instituting a prosecution under the T h e a t res Act 1968 for presenting an obscene 

stage play requires the Attorney General’s consent7 6 — but in other cases there may not be. A recent 

notable example of individual action, involving not an obscenity prosecution but the seeking of 

injunctive relief to prevent the public exhibition of a photograph which might be indecent or obscene 

(and blasphemous), is that undertaken by the Catholic Archbishop of Melbourne, the Most Reverend Dr 

George Pell, in October 1997 in respect of the proposed inclusion of the photograph Piss Christ in an 

exhibition of the work of Andres Serrano at the National Gallery of Vi c t o r i a . 7 7 

The photograph in question depicts a crucifix, which shows the crucified Christ as if enveloped in a mist 

which is infused with the colours of a red and gold sunset, and is in itself inoffensive. According to the 

artist, however, the crucifix was immersed in urine when the photograph was taken. 7 8 The photograph’s 

showing of the son of God and the founder of the Christian church immersed in excrement, and its title 

Piss Christ, have proved deeply offensive not only to many Christians but also to non-Christians who have 

been offended at the offence given to others. The Supreme Court of Victoria declined to grant the 

injunctive relief sought, taking the view that the photograph was not blasphemous, since the matter 

complained of must raise the risk of a breach of the peace, perhaps general civil unrest, and there was no 

evidence of any unrest of any kind following or likely to follow the showing of the photograph in 

question. Whether or not the photograph was indecent or obscene, an alternative basis on which 

injunctive relief was sought, the court did not resolve. Harper J, before proceeding to consider the 

blasphemy issue, merely contented himself with the following remarks: 

The question whether this photograph is indecent or obscene is, given its religious context, and 

given that the court must have regard to contemporary standards in a multicultural, partly 

secular and largely tolerant, if not permissive, society, is not easy. The fact that the indecent or 

obscene quality of the photograph comes not from the image as such, but from its title and the 

v i e w e r ’s knowledge of its background, does not make the task easier. 

Harper J refers here to the photograph’s religious context in respect of the question whether it is 

indecent or obscene, although no reference is made to its artistic context. It may be that artistic 

74 See above n 36 and text. 

75 Press interviews with jurors indicate the photographs were accepted as serious works of art; for example, one juror 

told the New York Times that ‘The prosecution basically decided to show us the pictures so that we’d say they weren’t 

art when everybody else was telling us they were’, whilst another told the Cincinnati Enquirer that ‘The pictures were 

not pretty. No doubt about it. But, as it was brought up in the trial, to be art, it doesn’t have to be pretty’. 

76 Theatres Act 1968 s 8. 

77 Pell v Council of Trustees of the National Gallery of Victoria [1998] 2 VR 391. The Archbishop’s standing to seek 

injunctive relief was not challenged by the Council of Trustees of the National Gallery. 

78 The artist has been quoted as saying ‘It dawned on me that piss would give a nice yellow’ and ‘Urine symbolises waste, 

but is also a necessary bodily function; and perhaps the urine humanised Christ’. 



& me d i a 

a rt s 


recognition of the photograph would be relevant on the indecency or obscenity issue — the judge does 

refer towards the beginning of his judgment to artistic recognition of the photograph, stating it to be 

relevant, but without indicating in what sense 7 9 — but it is not clear whether or not this is the case. 

A second reason why art has not always been treated differently in practice from other obscene and/or 

pornographic material, at least in recent years, is that the boundaries of art during this time have 

expanded considerably in the period of Postmodern art, thereby requiring a greater range of material to 

be treated differently. The legal controls themselves, however, which seek to treat art differently may well 

have been formulated in the Modernist period before this expansion took place and be based on 

assumptions and criteria which seem no longer to have application. The Modernist period of art had 

developed by the 1950s, in what became known as ‘Late Modernism’, into a purist movement, 

distinguishing between good art and bad art, 8 0 regarding as good art that which was original, sincere and 

serious, and emphasising the value of high art over matters of popular culture. It was these restrictive 

constraints that led to the development of Postmodernism, which rejected the distinctions between good 

and bad art, the notions of originality, sincerity and ‘serious’ art, and the devaluing of mass culture. New 

types of art and art forms appeared, such as Pop Art, Minimal Art and Participatory Art, 8 1 t r a n s f o r m i n g 

the conception of what constituted ‘art’. Art could include derivative as well as original work (such as 

Sherrie Levene’s work in the early 1980s which consisted of re-photographing famous art photographs); it 

could include work which incorporated elements from popular culture (for example, cartoons); and it 

could include art work (such as graffiti art) and performance art which may not feature in any art context. 

The ideas that work must have any ‘value’ to constitute art and that the value of art could be objectively 

verified were very firmly jettisoned. 

In many instances, however, the legal controls which seek to treat art differently from other obscene or 

pornographic material have been formulated in the period before the advent of Postmodernism and are 

based on assumptions and notions which prevailed in the Modernist period, such as good and bad art, 

artistic value and serious art. This is true of the legal controls to which reference has been made in the 

previous section: the lack of serious artistic value criterion as a part of the definition of ‘obscene’ in the 

US set out in Miller v Californ i a, the defence of public good on the ground that publication is justified in 

the interest of art in England contained in section 4 of the Obscene Publications Act 1959, and the defences 

of artistic merit in Victoria contained in s 70(2)(b) of the Crimes Act 1958 and in South Australia contained 

in s 33(5)(b) of the S u m m a ry Offences Act 1953. 8 2 The conundrum here is that Postmodern art which may 

be obscene and/or pornographic will have to be judged under Modernist-based legal provisions by the 

v e ry criteria which Postmodern art has sought so decisively to reject and rebel against. 83 P o s t m o d e r n 

artists who reject the Modernist idea that work must have some ‘value’ to constitute art will be dependent 

on their work being regarded as having ‘value’ in order for it to be classed legally as not obscene or its 

publication as being for the public good, thereby enabling it to be treated differently from other obscene 

or pornographic material. 

79 Harper J stated: ‘Dr Potts [Director of the National Gallery of Victoria] deposes to his belief that Mr Serrano intends 

in his work to investigate contemporary spirituality. He also deposes to the fact that the photograph is reproduced in 

(among other publications) a book of undoubted scholarship by an art critic of undoubted eminence: Robert Hughes, 

American Visions: The Epic History of American Art. In addition to this, the Gallery is itself an institution of very high 

standard. These observations are relevant. I will come in due course to the reason why. ’ The reason why these 

observations are relevant is, with respect, not apparent from the remainder of the judgment. 

80 Drawing this distinction was seen as important in order to preserve quality: ‘art ... in its “purity” [would] find the 

guarantee of its standards of quality’; Greenberg, ‘Modernist Painting’, in Francisca and Harrison eds, Modern Art and 

Modernism: A Critical Anthology (1982), 6. 

81 See Greenberg, ‘Avant-Garde Attitudes: New Art in the Sixties’ in Smith (ed), Concerning Contemporary Art (1975). 

82 See above, n 36 and nn 53-57 and text. 

83 For a detailed consideration of this point in respect of US law under Miller v California, see Adler, ‘Postmodern Art and 

the Death of Obscenity Law’ (1990) 99 Yale Law Journal 1359. 

(1999) June 81


Work which may be artistic in the Modernist sense might, therefore, more easily be recognised as artistic 

under Modernist-based legal provisions, such as those referred to above, than work which is artistic in the 

Postmodernist sense. Recognition may be particularly difficult for Postmodern artists not only in cases 

where they have yet to establish any artistic reputation but also in some instances where they have 

received some acclaim for their work. Notable here is the work of established artists which is both sexually 

explicit, deliberately and extremely offensive, and seeks not to perpetrate but rather to conflate any 

distinction between art and other obscene or pornographic material. The work of the performance artist 

Annie Sprinkle provides a striking example. Sprinkle, a former prostitute and porn movie star8 4 t u r n e d 

performance artist, has emerged over the last decade or so as a prominent figure in the contemporary 

performance art scene. Creating in the first instance short individual works about her years working in the 

sex industry, these pieces, often performed at the Kitchen Center for the Performing Arts, a leading 

institution for performance and video art in New York, were later consolidated into a show initially 

entitled ‘Post Porn Modernist’ 8 5 and later re-titled ‘Post-Post Porn Modernist’. This show attracted 

widespread attention, both nationally in the US and internationally. After opening with four nights at the 

Harmony Burlesque towards the end of 1989, there followed a 14 night run of ‘Post Porn Modernist’ at 

the beginning of 1990 at the Kitchen Center, which generated a vehement wave of outrage, with 

allegations that the performance had been undertaken with a National Endowment for the Arts grant. 8 6 

The show nevertheless continued up until 1994, when there was a break in performance, before some final 

performances were given on a tour of Australia in 1996. During the break in performance, Sprinkle 

devoted most of her time to studying Tantric and other sex techniques and to conducting all-female ‘Sluts 

and Goddesses Workshops’ in an ongoing exploration of sex. 8 7 This work evolved into the production 

‘Metamorphosex’, billed as ‘Three Sex-Magic Ritual Performances’ and first performed at the Vo r t e x 

Theatre in Austin, Texas, in December 1995. Unlike ‘Post Porn Modernist’, Metamorphosex was not based 

on Sprinkle’s years in the sex industry but on her study of spiritual sexuality and featured a portrayal of 

the diverse sexual backgrounds and experiences of some 26 women who had participated in the 

w o r k s h o p s . 8 8 It did not attract the same degree of hostility and public outrage that ‘Post Porn Modernist’ 

had done when first appearing at the Kitchen Center, the performances in fact meeting with little critical 

response in the Austin press. 

Sprinkle has become recognised as one of a number of established feminist performance artists, 

alongside contemporaries such as Karen Finley (whose performances have included appearing in the nude, 

covered in chocolate sauce and adorned with bean sprouts to represent sperm, to symbolise the oppression 

84 Sprinkle, it appears, was photographed in numerous magazines and made over 400 pornographic movies before 

turning to the ‘legitimate’ art world. 

85 The title was borrowed from the Dutch artist Wink van Kempen, who used the term ‘post porn modernist’ to describe 

‘a certain genre of sexually explicit material that is more thoughtful, creative, and artistic than the rest’. 

86 Sprinkle was not in fact in receipt of an NEA grant and, although the Kitchen Center had received an NEA grant for 

a portion of the performances in their season, this did not include Sprinkle’s appearances. For details, see Carr, ‘New 

Attack on Arts Funding: This Witch-Hunt’s for You’, Village Voice, 20 February 1990, 55; Carr, On Edge: Performance at 

the End of the Twentieth Century (1993); and Dubin, Arresting Images: Impolitic Art and Uncivil Actions (1992). 

87 Tantric sex techniques include ‘energy orgasms’, created through breathing and visualisation of the chakras, and 

meditative eye gazing, whilst the ‘Sluts and Goddesses Workshops’ combine the sacred and profane aspects of 

women’s sexuality, commencing initially with women re-creating themselves as ‘inner sluts’ before the focus changes 

from ‘inner slut’ to ‘inner goddess’. As Sprinkle herself has explained, ‘we change our clothes and put on colourful 

goddess gowns and we do a lot of breathing and a lot of tantric and Taoist and some Native American techniques 

and, basically, go into ecstasy’: Masters, ‘Some Might Call It Art ...’, Washington Post, 9 February 1992. 

88 As was explained in the programme for the performance, ‘Twenty-six women of all ages, races, shapes, sexual 

preferences, and phases of their sexual evolutions gathered together for several evenings to connect, learn, prepare, 

and create in a workshop format. We now will perform three sex-magic ritual happenings in which the audience will 

be invited to share — to inspire us, co-create with us, and bear witness to our magnificence’. 



of women), her work has received critical acclaim 8 9 and has been referred to in both art and theatre 

journals. Yet there remains more than an element of doubt whether, in practice, work such as this would 

be treated differently from other obscene or pornographic material if obscenity prosecutions were 

instituted in respect of it. In the US, such work would seem to fall within the first two requirements of 

Miller v Californ i a, that for work to be obscene it must appeal to the prurient interest and be patently 

offensive, and may fall within the third requirement of a lack, taken as a whole, of serious literary, artistic, 

political or scientific value, since the ‘serious artistic value’ standard offers little protection for Postmodern 

a r t . 9 0 The position may well be similar in other jurisdictions with legal controls on obscenity which make 

comparable provision for the protection of (Modernist) art, whether as part of the definition of ‘obscene’ 

(as in the US) or by way of a defence of public good/artistic merit (as in England and some Australian 

states). However, although the protection of performance art such as that identified above may not have 

been envisaged under Modernist based legal provisions, that is not to say that supporting evidence that 

such performances constitute art could not be adduced under those provisions. Notwithstanding that 

concepts such as ‘serious value’ no longer remain appropriate in respect of Postmodern art, 9 1 art critics 

could no doubt be found in the case of an established artist (although perhaps not in the case of an artist 

whose work departed from accepted artistic practices and had received no acknowledgement) to support 

a contention that the work was art. 

A third reason why, in practice, the law has not invariably treated art differently, is that recognition of 

a work as art by art critics and the art establishment is no guarantee that it will be recognised as art in 

judicial proceedings by the decision-making body. Even if art critics advocate a Postmodernist work as art 

under Modernist based legal provisions, it does not follow that the work will be accepted as such. Whilst 

judges have been receptive to the admission of expert evidence on artistic issues, 9 2 lay persons who appear 

on juries which determine the outcome of cases, or lay persons who sit as magistrates hearing cases in 

some jurisdictions, may well not attach great weight to such evidence and may not be guided by it. Lay 

persons may see the boundaries of art in much narrower terms and have a more traditional perception of 

what constitutes art. One art critic has written of works like Sprinkle’s and Finley’s : 

U n d e r s t a n d a b l y, to audiences habituated to the traditional boundaries of art, to audiences for 

whom easel painting was still the quintessential art activity, these performances were offensive 

and even insulting ... But [these works] have been part of ... art ... legitimised by ... critical 

designation again and again. 9 3 

The works may be part of art but juries, like audiences, may be habituated to the traditional boundaries 

of art, may not recognise the works as part of art and may find them to be obscene. 

As regards whether juries do recognise the works as part of art, the way in which the law seeks to exclude 

art from the scope of obscenity provisions and the question on whom the burden of proof rests on the 

issue of whether a work may constitute a work of art may be significant. If, as in the US, obscenity is 

defined to exclude artistic work, it will be for the prosecution to show beyond reasonable doubt that the 

89 See, for example, Norine Dworkin, ‘Deep Inside Annie Sprinkle’, On the Issues (Fall 1992) 20, 23: ‘No one straddles the 

schism between pornography and art as effectively as Annie Sprinkle. Brandishing a sense of sexual potency usually 

accorded only to men, Sprinkle repossesses the female body, inserting a female subjectivity into the canon of 

representation’. 

90 Adler, above n 83, 1371-1372. 

91 Although the ‘serious value’ standard no longer remains appropriate, it is hard to adopt any standard to replace it, 

since Postmodern art by its very nature was a reaction to Modernist standards and constraints and defies any 

standards used to judge it. The only standard essentially is that there is no standard. 

92 See above, nn58-59 and text. 

93 McEvilley, ‘Art in the Dark’ in R Hertz (ed), Theories of Contemporary Art (1985) 296. 

me d i a 

&a rt s 


(1999) June 83


work lacks serious artistic value. If the jury take the view that there is a possibility that a work is art and 

has artistic merit, as well they might if there is testimony to this effect from art critics or others who are 

familiar with the world of art, then the work would not be obscene, no offence would be committed and 

they should acquit the artist or other person responsible for disseminating the work. If, on the other hand, 

a defence of public good or artistic merit is provided for works of art, it will be for the defendant to 

establish its existence on a balance of probabilities. Here the jury will need to be satisfied that it is m o re 

likely than not that a work is art and has artistic merit, a more exacting standard which the jury may not 

feel, particularly in the case of unconventional work, has been met. 

A fourth reason why art may not in practice be excluded is that where artistic merit is merely a relevant 

consideration to be taken into account with a number of other factors, those other factors can easily be 

considered to outweigh the artistic merit. Different persons or bodies may weigh the relevant factors 

differently and come to a different conclusion in respect of the same subject matter. Classification in 

Australia of Paolo Passolini’s film Salo or 120 Days of Sodom, a film based on the literary work of the 

Marquis de Sade, provides a good illustration. The film, released in 1975, was refused a classification 

certificate in Australia until 1993, when it was given a ‘Restricted’ (R) classification which prohibited 

viewing by persons under the age of 18. The decision of the Classification Review Board to classify the 

film was a unanimous one and underlying the decision was an acceptance that the film was a serious 

work of art. Passolini was an acknowledged filmmaker and the film was considered to be pursuing a 

serious political purpose by depicting the sexual degradation and torture of young men and women at 

the hands of four high ranking officials, a duke, a bishop, a magistrate and president in Fascist Italy 

during the final stages of World War II. 94 In releasing the film, the Board sought to protect adults from 

being offended by requiring the following warning in trailers and advertising: ‘Adult Themes of High 

Intensity, Strong Depictions of Violence, Strong Sexual References’. In reaching its decision, however, 

little, if any, weight appeared to be given to the apparent age of the actors in the film. 

Classification of the film proved controversial and in 1997 a request for reclassification, in 

accordance with s 39(3) of the Classification (Publications, Films and Computer Games) Act 1995, was 

made by the Attorney General for Queensland. The apparent age of the actors in the film now assumed 

a greater significance, in the light of a provision in the National Classification Code, in Sch 1 to the 

1995 Act, which required refusal of a classification for films that ‘depict in a way that is likely to cause 

offence to a reasonable adult a minor who is, or who appears to be, under 16 (whether or not engaged 

in sexual activity)’. Films might cause offence under the Code, requiring refusal of a classification, 

when they ‘depict, express or otherwise deal with matters of sex, drug misuse or addiction, crime, 

c r u e l t y, violence or revolting or abhorrent phenomena in such a way that they offend against the 

standards of morality, decency and propriety generally accepted by reasonable adults to the extent that 

they should not be classified’. Although the provision on depicting minors would most obviously 

preclude classification of pornographic films featuring and exploiting persons under 16, the provision 

is more extensive in scope. Refusal is required whatever the actors are doing and whatever their ages 

as long as they a p p e a r to be under 16, whether or not the issues are dealt with in a serious way, and 

whether or not films have artistic merit. When reclassification of Salo was considered by the 

Classification Board, a majority were of the view that the actors who played the victims in the film did 

not appear to be under 16, which meant that regard could be had to the film’s artistic merit. The film 

was felt to have ‘considerable artistic merit’ and the majority declined to depart from the 1993 

classification that restricted viewing to adults: 

94 As the Board’s deputy convenor, the film critic Keith Connolly, observed, ‘I’d never seen the members so shaken by 

what they’d seen. We were all revolted by the film but that was not the point. Pasolini was a great film maker and 

serious filmgoers shouldn’t be deprived of the opportunity to see his work’ — see David Marr, ‘Art vs Innocence’, 

Sydney Morning Herald, 25 May 1998. 



In the majority view the depictions of violence are not gratuitous as they are justified in the 

context of a defensible storyline in a film of considerable artistic merit. In the majority’s view 

the depictions are not exploitative as they do not appear to purposefully debase or abuse the 

enjoyment of viewers. 

In the majority’s view the depictions of violence are not excessive ... [and] depictions of implied 

sexual violence are not frequent, gratuitous or exploitative. 9 5 

Whilst artistic merit was an important relevant consideration for the majority in reaching its decision, 

there was no express acknowledgement in the Board’s Report of any such merit by the minority. In the 

view of the minority, ‘the depictions of sexual or other violence are gratuitous and exploitative and offend 

against the recognised standards of morality, decency and propriety generally accepted by reasonable 

adults to the extent that they should be classified RC [Refused Classification]’ and ‘it is not clear that all 

of the victims are over the age of sixteen’. 9 6 Whether or not the minority felt the film had any artistic 

merit, it is clear that any merit it might have was, in their view, outweighed and overridden by other 

relevant considerations that need to be taken into account, in particular, the relevant consideration of 

offence against recognised standards. 

Different considerations were similarly given different weight when an appeal against the Board’s 

decision was heard by the Classification Review Board. A differently constituted Review Board from the 

one that had given S a l o a ‘Restricted’ (R) classification in 1993, 9 7 by a majority, reversed the decision on 

17 February 1998 and classified the film RC, which meant that it could no longer legally be exhibited in 

Australian cinemas. Whilst all members of the Review Board agreed that at the very least the film ‘could 

be said to have’ artistic merit, a majority took the view that Pasolini had not shown an effective 

connection between the horrors of the film and late Italian fascism and felt that the offensiveness of the 

film outweighed any artistic merit. The majority was not clearly of the view that the victims in the film 

appeared to be under 16, which would enable the film to have been classified RC irrespective of any artistic 

merit. However, offensiveness at seeing young people abused in the film was regarded as paramount and 

increased by the fact that they appeared to be, if not under 16, then under 18. The film was regarded as 

containing ‘a large number of offensive fetishes, the offence of which was increased by the involvement 

of young people who, if not clearly under 16 years, nevertheless looked like persons under the age of 18’. 

It can be seen from the case of S a l o that, where artistic merit is merely a relevant consideration, art may 

not in practice be treated differently from other obscene or pornographic material. Whether it is treated 

differently will depend on how the decision-making body chooses to exercise its discretion. Section 11 of 

the 1995 Act 9 8 identifies various considerations to be taken into account, one of which is artistic merit, 

but gives no indication of what weight is to be attached to this, relative to the other considerations. This 

is left to the decision-making body and different members of a decision-making body, or different 

decision-making bodies, may attach different weight to artistic merit, as they have in the case of S a l o. 

Where no significant weight is attached, artistic merit will not prevail and art will not in practice be 

treated differently in such instances from other obscene or pornographic material. 

95 Office of Film and Literature Classification, Classification Board Report 97/1174. An announcement of the Board’s 

decision (‘Reclassification of Salo’, 25 June 1997) contained a statement that ‘The Classification Board noted that the 

film is an historical work which would be likely to be viewed by ‘art house’ audiences who could be expected to know 

of the film and its subject matter by reputation and public record.’ 

96 Ibid. 

97 Only one of the six members of the Review Board, Brent Waters, a child psychiatrist, had been party to the earlier 

classification decision. As well as a change in personnel, the nature of the Board’s composition had changed since the 

original classification decision. A Board on which there was a strong representation for the film industry had given 

way to one whose principal professional interest was children — see Marr, above n 94. 

98 Section 11 is set out above in text preceding n 60. 

& me d i a 

a rt s 


(1999) June 85


Conclusion 

A number of factors combine to make the inter-relationship between obscenity, pornography and 

art a complex and perplexing one. Not only might the terms themselves have a number of meanings 

but also, whichever meaning is adopted, there is a wide diversity of opinion as to whether something 

is obscene, pornographic or art. Any definition or standard that is adopted to determine whether 

something is obscene, pornographic or art is likely to be challenged. It is in the nature of those who 

seek to produce or disseminate material which might be considered obscene or pornographic to push 

back the boundary separating legality from illegality, just as it is in the nature of artists to transgress 

any boundary delineating art which is erected. Distinguishing between obscenity and pornography on 

the one hand and art on the other hand, it has to be said, is a process which (to say the least) is fraught 

with difficulties. Although the law does aim to treat art differently from other obscene or pornographic 

material, experience suggests that this aim is not one which can be readily achieved in practice. It 

seems inevitable that cases will arise from time to time which will bring work which can claim to 

constitute art into conflict with the law, whether these be high profile ones involving established 

artists such as Mapplethorpe and Serrano or ones which attract little or no attention involving artists 

who might be undiscovered, unpopular or unrecognised. 

Works may not come into conflict frequently with the law and perhaps the best that can be hoped 

for is that such cases are kept to a minimum. It is not often that legal proceedings are instituted against 

works of art, although both classification of works by bodies such as the Office of Film and Literature 

Classification and informal rather than legal censorship appear to be more common. Indeed, a quick 

trawl of the internet revealed several instances of informal censorship, as indicated below: 

• an oil painting of a nude woman’s torso, which did not feature in an exhibition of artwork of 

female art students from Montpelier High School in Vermont, United States, that was on display in 

1997 in Montpelier City Hall, but remained under wraps in the city manager’s office. 9 9 

• a painter whose paintings featured nude men and were on display in a scheduled art show in 1995 

in Barnwell County, South Carolina, United States, who was asked to remove his work from the 

d i s p l a y. 1 0 0 

• a painting, featuring an angel and a woman making love in a field of flowers, covered with a sheet, 

with the message: ‘Please take care! Not for sensitive viewers!, which was on display (or, rather, n o t 

on display) at a gallery in 1998 in Port Elizabeth, South Africa. 1 0 1 

• a steel sculpture, commissioned by the Percent for Art programme in Utah, United States, and 

installed in 1988 on the lawn of Utah Valley State College, which was cut down with a welding 

t o rch on the instructions of the College’s Vice President. 1 0 2 

99 < h t t p : / / w w w.aclu.org/news/w060497a.html>. Following intervention by the American Civil Liberties Union 

(contending that the student’s First Amendment rights to freedom of speech had been violated), the painting was 

promptly put on display and a personal visit to the school was made by the city manager to apologise to the student 

and her art teacher. 

100 . On discovering the paintings on display, the board of the Barnwell County 

Museum requested removal and voted to lock the gallery. ‘The show is not appropriate for the town’, stated the 

board’s chairwoman, Ann Haygood. 

101 . 

102 . The sculpture, still in pieces, remained in a garage and 

subsequently made an appearance at the Salt Lake Art Center, Utah, in 1997 in a show called ‘Making Waves : 

Controversial Art in Utah’. See also , which discloses that four nude or semi-nude 

sculptures by Auguste Rodin (The Kiss, Saint John the BaptistPreaching, The Prodigal Son and Monument to Balzac) were 

excluded from a travelling exhibition of Rodin’s work when it was shown in the art museum at Brigham Young 

University in Utah in 1997. 



However much the law might aim to treat art differently from other obscene or pornographic material, 

there is little doubt that this aim might be frustrated by its inability in practice, in some cases at least, to 

do so and by instances of informal rather than legal censorship, such as those mentioned above. 1 0 3 ✜ 

103 Of the instances mentioned, the informal censorship appears to have passed unchallenged, except in the first case; 

see above, n 99. 

& me d i a 

a rt s 


(1999) June 87

Obscenity, Pornography and Art - University of Melbourne

Create successful ePaper yourself

Delete template?

Save as template?