The wheels of justice are grinding very slowly indeed for photographer Bill Henson and the Roslyn Oxley Gallery as the NSW police and the State’s Office of the DPP work out whether or not to lay charges over a series of photos depicting n-ked minors.
It is now almost two weeks since the Police raided and removed the Henson pictures after vigilante moralists demanded they do so.
Perhaps the lawyers and investigators are acutely aware that if charges are laid, Australia’s already shaky reputation as an upholder of liberal values will take another hammering; to charge Henson and the Gallery would be to undermine our commitment to democracy.
If that is the case, then they are in good company.
As far back as 1989, influential judges sitting on one of the most influential courts in the common law world, the US Supreme Court, were clearly indicating that child p-rnography and obscenity laws are not designed to prevent artists doing what they have done for centuries – depict n-ked minors.
In a 1989 case about the constitutionality of a Massachusetts law on child p-rnography, Justice Brennan, joined by Justice Thurgood Marshall, and Justice John Paul Stevens who is still sitting on the Court today, delivered a powerful dissenting judgement — now widely-accepted reasoning in the US — that sets out perhaps the most well-argued and sensible guidelines which police and prosecutors in Australia should apply to any complaint they receive from those who see s-x in every image of a n-ked child.
The State, Justice Brennan said, clearly has an “interest in preventing the s-xual exploitation and abuse of minors … the coercive enlistment, both overt and subtle, of children in the production of p-rnography is a grave and widespread evil which the States are amply justified in seeking to eradicate.”
The right to freedom of expression which in the US is manifest in the First Amendment — and which in this country is an implied right in the Constitution — is such a fundamental right that the state should not override it, Justice Brennan says.
Police officers and prosecutors ought to heed this pearl of wisdom and commonsense from Justice Brennan. The right to freedom of expression “blocks the prohibition of n-de posing by minors in connection with the production of works of art not depicting lewd behaviour and not specifically prepared, in accordance with 29A’s exclusion, for museums or libraries. Many of the world’s great artists — Degas, Renoir, Donatello, to name but a few — have worked from models under 18 years of age, and many acclaimed photographs and films have included nude or partially clad minors. The First Amendment rights of models, actors, artists, photographers, and filmmakers are surely not overborne by the Commonwealth’s interest in protecting minors from the risk of s-xual abuse and exploitation, especially in view of the comprehensive set of laws targeted at those evils.”
Bill Henson and the Ros Oxley Gallery, and any other artist who paints, photographs, sculpts or represents a naked minor, even with their genit-ls and br-asts on full view, is simply exercising a cherished right and no government anywhere should override it if it is serious about ensuring our democracy is a real one.
Justice William Brennan got it right 20 years ago and nothing has changed to alter his commonsense approach.