A landmark judgment on freedom of expression and artistic freedom

I do not intend to romanticise or exaggerate the issue but it is my humble opinion that today's Realta judgment represents a significant turning point in Maltese obscenity and morality law; freedom of expression and artistic freedom. If anything, it is the first judgment of it's kind, in Malta, that deals specifically with the nebulous concepts of obscenity and pornography in literature as well as the defence of artistic merit and public good (as found in the Pornography and Obscenity Regulations 1975 - L.N. 80 of 1975). 

The fact of the matter is that our courts, especially the appellate courts, always had a tendency to adopt purely moralist or ethical interpretations of obscenity that are loaded with subjectivity and cut off from contemporary reality. In effect, they served the function of guarantors of the 'nanny state'. Thus we find in judgements such as Il-Pulizija v Domenico Catalogna et (Court of Criminal Appeal, Inferior - 1954), a case that dealt with the public exhibition of a nude painting, that '[c]hi si scusa col dire che egli dipinge il vizio e la dissoluzione, cosi come la trova nella natura e nella societa, dimentica che, per gravi ragioni, la societa esige che di alcune cose non si faccia ostentazione...Perche dovrebbe l'arte alzare quei veli? Quale ragione avrebbe per sottrarsi alle regole comuni?' (quotuing from Cocurullo, L'Oltraggio al Pubblico Pudore mediante Scritti, Disegni ed Oggetti, 1910). Coupled with this one finds various judgments declaring concubinage (cohabitation) as an offence to public morals such as Elsie Demanuele vs Richard Faulkner (First Hall Civil Court - 1988) where the Court said that 'Il-Qorti ma tistax taghti decizjoni li thalli sitwazzjoni ta' konkubinat, ghax din mhux biss tmur kontra l-morali pubblika imma wkoll kontra l-ligi'. The reason I cite these judgments is because they are the very same that the Attorney General used, in his appeal application in Realta, to show that the Court should make pure subjective analyses of obscenity and morals without any recourse to current realities. The prosecution, according to the AG, does not need to show 'the why'; 'the how'; and 'the manner' by which morals are offended. The AG also argued that literature can be deemed obscene even from mere 'purple passages' cited in isolation without any recourse to the dominant character of a story or novel taken as a whole (this is what he tried to do in open Court by reading the 'dirtiest' passages from Li Tkisser Sewwi) nor does he believe that obscene publications should be judged with regard to the likely readers, even if these are mature adults. He also contended that the Court should neither be guided by constitutional principles on free speech, nor should it have any regard to expert witnesses on the matter. 

Until today (and perhaps next week - since we still await the appeal judgment from the Constitutional Court on the Stitching case) little importance was given to certain (limited) court declarations that the concept of morals vary in space and time (certain judgments given by Judge J R Micallef, the names of which I do not know off-handedly, come to mind). The AG tried to give the impression that that which was immoral in 1950 must necessarily remain so in 2012. This is unlike the erudite doctrine of the Italian Court of Cassation which held that '...il giudice non deve essere un fustigatore dei costume, un promotore di campagne moralistiche, come la Corte di cassazione ha più volte affermato. Non è questo il compito assegnatogli dalla legge. Come già ricordato, il fondamentale parametro di riferimento per il giudice è il sentimento medio del popolo nel momento storico dato. (Cass., Pen., Sez III 30-10-1996, n. 9685). 

This has changed with the Realta appeal. In essence, the Court of Criminal Appeal confirmed the deliberations of the Court of Magistrates which held that a publication can only be deemed obscene and pornographic if it effectively 'corrupts and depraves' the reader (the English standard of obscenity) by inciting in him or her libidinous thoughts and sexual excitement. This is important for it destroys the concept of 'inherent obscenity': material must have a strong (extraneous) corruptive effect on the mind of the reader for it to be deemed obscene. It held that this effect must be proven, beyond reasonable doubt, by the Prosecution, in cases like these. It also took cognisance of defence counsel's contentions that the story Li Tkisser Sewwi in no way attempted to incite libidinous thoughts or corrupt the minds of ordinary readers; to the contrary the primary motive was to invoke a certain disgust - or anger - at the protagonist, who viewed women as sexual objects and nothing else (an unfortunate reality in the psyche of a fair number of Maltese men and indeed, the male species in general). A narration of such a reality, it said, although shocking, discomforting and not aesthetically pleasing, is neither obscene nor devoid of artistic merit. It agreed with defence counsel's claims that '...l-ghan tal-letteratura m'huwiex biss li titfa dawl fuq dak li huwa sabih fl-umanita' izda huwa anki li tiddipingi u titkellem dwar l-elementi koroh u deplorevoli ta' l-istess socjeta`'. It also made the fundamentally important declaration that '...il-moralita` pubblika hija xi haga li tinbidel biz-zmien u dak li kien joffendi l-morali pubblika ghoxrin jew tletin sena ilu mhux neccessarjament joffendi l-morali pubblika llum u dan minhabba rejaltajiet tal-hajja differenti principalment ir-rejaltajiet li ghalihom giet esposta is-socjeta Maltija permezz tal-mezzi vasti ta' komunikazzjoni moderni.' 

It is for such reasons that the Realta case, now confirmed in appeal, is a landmark judgment for it is a judicial affirmation that (1) art should not be regulated by a paternalist state that decides for adults what they should see, read and hear (in the sense that art must be aesthetically pleasing and inoffensive for it not to interfere); (2) that the artist has every right to shock, offend and challenge current contemporary reflections in society as avante-garde (a fundamental concept in free speech law); and (3) that the concept of morality is not a dogma (static and unchanging in space and time) but must be viewed in accordance with current standards of toleration in society without being detached from emerging realities of the 21st Century. 

Despite the importance of this judgment, this issue should never have gone to Court. In my opinion the main culprit was not the AG (he was, after all, doing his job albeit in a very close-minded manner) but the Rector, Juanito Camilleri. One must recall that it was on his insistence that Mark Camilleri (and, consequently, Alex Vella Gera) be taken to Court. He based his reasoning primarily on two grounds: (1) one that he was not sure what he should do in cases like these and thus wanted guidance from the Court; and (2) because the short story was placed in a journal or newspaper, the reader could easily take it to be a factual account of the author's opinion on such matters (hence the insistence, by the prosecution, on the word 'artiklu' rather than 'storja') rather than a fictitious piece of literature. Since when is the Court a means to solicit legal advice (uffiċju tal-pariri) and since when can university students not distinguish between fact of fiction? Is this the level of intellect that the Rector perceives in students? And who on earth has ever heard of university officials and academics subjecting their own students to a criminal trial for the publication of literature which offends them? This absurdity reached epic proportions and I also call for the Rector's immediate resignation now that he has gotten his answer very clearly. One must also recall how the SDM-led KSU of 2009-2010 was four-square  behind the Rector's actions, despite any declarations to the contrary, for reasons or motives upon which I shall not speculate. I can personally bear witness to this. Kemm għadkhom lura, jaħasra. Ma rrnexilkhomx. 

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