Censorship in Polish Art After 1989: Art, Law, Politics

By Jakub Dabrowski and Anna Demenko

Censorship in Polish Art After 1989 is a pioneering work on censorship in Polish art after the fall of the USSR available in English for the first time with a skilled translation by Lukasz Mojsak. Polish Art Historian Jakub Dabrowski, with contributions from Anna Demenko, offers the first comprehensive study to analyze the problems of restricting the freedom of artistic expression in the Third Polish Republic. The book includes two complementary approaches - legal and historical (including political and social aspects of the phenomenon). Based on the collected factographic material, Dabrowski captures the characteristic qualitative and quantitative characteristics of the phenomenon studied in time. He enters his considerations in a wider social, political, artistic and media context, at the same time pointing to symbolic breakthroughs, precedents, sequences or correlations of events.

• Language: English
• Publisher: Mosaic Press
• Release date: Oct 21, 2019
• ISBN: 9781771614696

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Index

INTRODUCTION – EVERYTHING IS CENSORSHIP!

by Jakub Dąbrowski

Everything is censorship! In a commercial aired on Polish TV of a drug that supports proper functioning of the liver and its detoxification, the serious voice of a popular actress declares that if you censored of all the items on the menu that’s bad for our liver, life would lose its flavour. Simultaneously, we can see on the screen how Polish culinary specialties magically disappear from the table laden with food (because they are too heavy), and white plates with the red inscription censorship appear over the emptied plates. Of course, not for long, as the wonderful remedy advertised obliterates the liver ban.

How did the specialist term for preventive control of information dissemination at the state level become associated with almost every no of our life? The answer to this question is not obvious. It is possible that the most important thing here is the feeling that we are not allowed to do something, to express ourselves in a certain way. We focus on the experience of the ban and then identify it with the concept of censorship. We do not ponder on the sources, justifications and nature of the phenomenon, our identification is made automatically on the principle of simple homeopathy. But why is this happening? Maybe because various forms of expression are an indispensable part of human nature. Subconsciously, we feel resistance to any attempt to limit something that is not only a cultural need, but as in the case of food, even a physiological need that permeates every moment of our lives on different planes. Are we not our own permanent interlocutors? At the same time, dwelling on the justification and legitimacy of a ban is a difficult task - it engages deeply held, irreducible beliefs and emotions associated with them, and despite intellectual effort, it usually ends up getting tangled up in aporias. When someone commits a burglary or a murder, the case seems simple – the act can be proved with relative ease, and the personal injury done is obvious; whereas, when someone expresses something in a symbolic manner, we fall into a net of doubt arising from linguistic ambiguity, individual sensitivity, our cherished values, the relations between good taste and real damage, etc. These problems escalate when the statement is of an artistic nature, especially when it comes to weighing the interests, where on the scale we have freedom of artistic expression and freedom to enjoy the products of culture on the one side, and protection of values ​​violated by the work on the other side. In Western tradition, art is a sacralised sphere that enjoys special privileges. Should anyone interfere in this uncanny world? In a conversation with a work of art, something more is often perceived - something that the artist was not aware of when creating the work, and that which the recipient cannot fully grasp. Thus, it is difficult to say what values were violated, to what extent, and if at all. The matter is further complicated by the fact that the reception of art is historically changeable - how many works considered today as the indisputable canon and top achievements of our civilization were threatened with censorship yesterday? How can we pass judgments beyond reasonable doubt in such circumstances?

The phenomenon of broadening the meaning of the word censorship is observed not only in popular culture; but also in non-legal scholarly discourse, all limitations of the freedom of expression, or their attempts, even those that result from legal limiting clauses characteristic of liberal democracies, are usually associated with censorship.¹ But associating the concept of censorship with any prohibitions imposed by substantially perceived power, which in this way interferes with the continuum of our life – free by assumption – is only one aspect of the phenomenon. The other is the question of whether the discursive sphere is shaped only through an official ban? What if life, our identity and communication possibilities (and therefore the whole sense of the continuum) are not free at all, if they immanently and unconditionally depend on the rules of the game (censorship), which have no substantial source and exist everywhere and always?

In democratic states, there is not such a harsh and formalized control of the information flow as in totalitarian or authoritarian states, but in both cases there are countless clusters of interests and power relations that are part of complex economic, political, ideological, cultural systems or social consensus. Of course, in the art world their existence is also ubiquitous. We will not get financing for our project if we do not meet the ideological expectations of a public sector sponsor or the commercial criteria of a private one; we will not be invited to participate in an exhibition if we criticize the activity of the manager of the institution that organizes it, or if we do not follow the ideologies, trends, fashions, styles, communication codes, etc. that dominate in the art world. We will not distribute an unmasking work if we are threatened with a lawsuit by a powerful corporation - examples can be given ad infinitum. All this makes our messages a resultant of conscious calculations, unconscious fears and desires, and technical editing processes rather than pure products of the Cartesian Self. Self-censorship is undoubtedly the most common and the most difficult phenomenon to recognize, it concerns not only artistic creation, but our entire life.² The introduction of such a context means blunting the traditionally sharp division that occurs in the discourse on censorship into the good ones who are the protectors of freedom and diversity and the bad ones who want to limit this freedom and diversity, and transferring deliberations to a different plane, or planes - to be more exact.

The American literary critic Richard Burt, in referring to the ideas of Pierre Bourdieu, emphasizes that censorship does not operate only in one direction along the axis between the repressed and the free, but rather more fundamentally, by determining what can be legitimately debated. Discourse involves two types of restrictions; first of all, an open, official division into heterodoxy (discourses that would circulate freely if there was no traditional censorship) and orthodoxy (that which falls within the controlled, official legal and social framework); secondly, a hidden, unconscious, structural division into the realm of the disputed (orthodoxy + heterodoxy) and the undisputed, which is taken for granted (doxa), so that heterodoxy stands in opposition not only to orthodoxy, but also to doxa, which, I would say, censors at the pre-preventive level. The main political struggle concerns what may belong to the debated area, the doxa: the subordinate classes try to push back the limits of the obvious and expose its arbitrariness, while the dominant classes have an interest in defending the integrity of doxa or ultimately establishing, on their terms, an imperfect substitute of doxa – orthodoxy.³ Heterodoxy aims both to expand the scope of the disputable and to reduce the orthodox control and delegitimate it as much as possible; simultaneously, heterodoxy attempts to legitimate itself.⁴ What is more, according to Burt, opposing censorship does not guarantee diversity free from interference, but refers to diversity as a criterion of exclusion and inclusion. Paradoxically, calling someone a censor means excluding them from the dialogue. Therefore, diversity or freedom of expression cannot be completely opposed to censorship, as diversity will always be regulated (exclusions are essentially built-in), whoever is opposed to this diversity will be excluded. Burt stresses that such delegitimation is not synonymous with traditionally understood censorship as it is a distortion and displacement rather than a form of direct destruction. But it is also not something else. As a negative exercise of authority, delegitimation cannot be completely separated from more direct means of control such as a ban on the dissemination of certain materials.⁵

In Burt’s considerations, the sociological theories of Pierre Bourdieu (who together with Michel Foucault should be regarded as the fathers of critical revisions of traditional approaches to censorship) are a reference point. Bourdieu’s understanding of the censorship structuring the functioning of the journalistic field (especially television)⁶, by applying cautious analogies, can help analyze the mechanisms affecting artistic creation within the field of art. Bourdieu does not define censorship synthetically, but his deliberations concern all the factors that influence the communication capabilities of a given subject, both in the negative sense (what is not allowed) and the positive sense (what is expected). These factors are both external and internalized (unconscious) and result from the specificity of the structure of a given field of symbolic production. Therefore, journalists choose only what can fit into their conceptual categories and world view, which is in line with the logic of their field. However, the autonomy of this field is subject to enormous pressure - the journalistic field is much more dependent on external forces than other fields of cultural production, especially on the rules governing the economic field: market judgments resulting from audience ratings, but also strongly dependent on the ownership structure, which through economic interests and unofficial relations with the political field translate into the quality of information (the loss of autonomy through subjection to external forces is called heteronomy). At the same time, the stronger the media are subjected to economic pressure, the more they affect other fields in a similar way, which is dangerous because they, especially television, have enormous power to produce the so-called reality effect. In my considerations, the concept of field autonomy developed by Bourdieu is also important, i.e. the situation in which the recipients of the producers of a given field are solely their competitors, who themselves are able to produce on similar terms. At the same time, according to Zhdanov law formulated by Bourdieu, the more a cultural producer is autonomous, rich in specific capital from a given field and exclusively integrated into the restricted market in which the only audience is competitors, the greater the inclination to resist. Conversely, the more producers aim for the mass market the more they have to collaborate with the powers that be – State, Church, or Party, and, today, journalism and television …⁷ The autonomy of the field of art is related to the concept of the autonomy of art (i.e. the emergence of art for art’s sake, the primacy of form – pictorial / literary quality, etc.), but it is not equivalent to it. The latter, according to Bourdieu, is rather a part of the historical process, it plays the role of the abstractor of quintessence, enabling full emancipation of the field.⁸

The different ways of using the concept of censorship is a great methodological problem. Looking for its solution, I was aided by the context – the circumstances determining the place of the subject from which they analyze the problem. First of all, this book deals with the cultural phenomena that in Poland are either talked about in columns, news, petitions, etc., or have been scarcely elaborated on: there are no basic studies, detailed and in-depth analyses of individual phenomena, as well as comprehensive approaches both uni- and multidisciplinary. Therefore, in my research, I had to start from the basics. Secondly, the narrative was supposed to concern two areas: the law and art history. The inclusion of legal issues calls for addressing censorship in a rather traditional way, i.e. as a legal, preventive or repressive prohibition of the dissemination of a particular or certain type of message. However, such an approach would not offer a substantial amount on the freedom of art in Poland. Therefore, I decided to complicate the concept of censorship and treat it eclectically, as any intentional action that can lead directly or indirectly⁹, in a preventive or repressive (consequent) way, to limiting the freedom to create or distribute a work or a certain type of work. Such an approach includes both activities based on legal regulations, as well as actual activities that are both lawful and illegal. Since I simultaneously verify the reasons, the context, the scope and the consequences of restrictions, I sometimes refer to more complex approaches to censorship in which the productive aspects of bans are taken into account, and the struggle of ortho- and heterodoxy is extended by the pre-preventive function of doxa. Of course, most of the considerations could be vertically expanded, but this is a task to be fulfilled in another book. Thirdly, the situation in Poland is so peculiar that it requires a specific approach to the problem. In Poland, the Enlightenment and liberal tradition is superficial; whereas, religious imperatives and prohibitions have strongly influenced us for generations. Our mentality is entangled in historical traumas and the legacy left behind by the totalitarian regime. The Kantian metaphysics of the transcendental subject and the revolutionary-bourgeois transformations of the 18th and 19th centuries had to give way to the metaphysics of insurrections and struggles for the restitution of independent state in Poland and in the field of culture - to the dominance of the irrational romantic tradition, the paradigm which determines our national and state identity to the present day¹⁰. Currently, we live in a country that is ethnically homogeneous on the one hand and immersed in extremely severe cultural conflicts on the other hand. A country that is modernizing its economy gradually¹¹, but remains ideologically conservative, in which the left never had a significant political representation, and the Catholic Church constantly maintains its influence. The parties that declare themselves left-wing or liberal (in the European and not in the American sense of this word) remain, in principle, crypto-conservative. They resign from modernization-oriented social and cultural projects which support the secularization of the state and the law, granting of rights to sexual minorities, emancipation of women, liberalization of the discursive sphere, and openness to ethnic and national minorities. These circumstances affect the way the agon operates and its legal framework, which in a way compels me to stand up for something that is lacking - post-Enlightenment diversity and a liberal tradition.

The latter rejects the position according to which people have the right to say in public only what the majority approves of, and possible limitations on freedom of expression should be determined not only according to the so-called harm principle (any freedom is to be limited by the state in a situation in which its use violates the reasonable interests of other subjects), but also according to the values which this freedom is to serve. Today, it is emphasized that an increased level of protection of freedom of expression is a necessary condition for the proper functioning of democracy and self-government - citizens in a democratic state should have unrestricted opportunity to obtain the information that could affect the choices made in the process of collective decision-making (the so-called idea of democratic self-government). In democratic societies, the level of protection of freedom of expression in relation to public matters should be increased (and the harm principle suspended), in comparison, for example, with the level of protection of speech leading to private defamation. Statements on private matters (irrelevant to public life) of course also deserve to be protected by law, but if there is a reasonable suspicion that they violate the reasonable interests of other subjects (e.g. private defamation), then they can be subject to restrictions according to the basic harm principle. In other words, the protection of freedom of expression going beyond the harm principle becomes justified if the statement is sufficiently ‘central’ from the point of view of the values that determine the raison d’être of the principle of freedom of speech.¹² At the same time, it is worth emphasizing that there are no premises for broadening the limits of freedom of expression only in the case of artists. The focus of this work on the freedom of art results from the objective nature of the medium of communication, and not from the subjective differentiation of the rights and duties of artists and the rest of the society. Although the liberal doctrine of freedom of expression attempts to set the limits of this freedom as wide as possible, it does not make it an absolute value, nor does it assign any special prerogatives to art as a sui generis expression. The problem of the protection of freedom of expression is related not so much to the type or form of expression, but to the issues of democracy, public affairs and self-government that are external to these concepts. Thus, art could deserve special protection (higher than other types of expression) not because it is art, but because it would raise important public issues.

Of course, I am aware that my declarations are of a political nature, but I reject the possibility of writing from the outside of the discourse, from some immaculate, apolitical position of the propagators of the equally immaculate idea of freedom of expression. I am also aware that I am somewhat in an ambiguous situation, because by calling some activity censorship and advocating diversity and dispute, I place myself, as Burt stresses, in a specific continuum along with the ban which is being criticized. However, I believe that democratic processes, self-government and social diversity should be supported in Poland because they remain in short supply in this country. At the same time, I would like to emphasize that I am not fighting for uncensored, pure expressions of culture. I analyze the mechanisms that - as Helen Freshwater¹³ rightly notes - are considered by the authors themselves and part of the general public to be a reprehensible pressure blocking the form or content of communication desired at a given moment. The reduction of legal prohibitions that I am postulating, of course, will not lead to complete freedom in the discursive sphere - it will only be a modification of some official barriers limiting something that is always formed in a pre-preventive, more elusive manner. But does the fact that there is no uncensored text mean that we do not have to fight something that we recognize as an attempt to influence what we want to express? It is also worth noting that supervision manifested in excessive legal regulations makes it difficult to critically analyze the discursive sphere - for example, the need to fight prosecutors or oppressive officials obscures the problem of pre-preventive censorship and keeps it in the sphere of doxa (this was the case in Poland during the Communist times). During cultural wars, the emotions evoked by official prohibitions and the aura of media sensation distract the attention of authors and recipients from many important issues, such as institutional critique, the precarious working conditions of artists, or class inequalities. In many situations, it is thanks to the liberal guarantees of freedom of expression that a critical analysis of social relations is at all possible — one can imagine such regulations that will make it difficult to demystify doxa. This happens when the breaking of social taboos or unmasking of hidden power relationships lead to triggering legal disciplinary systems.

***

The book is divided into four parts - the first is dedicated to the analysis of the notion of immunity of art; the second is devoted to its functioning in the Polish criminal law and criminal provisions limiting the freedom of art; the third discusses the historical aspects of the phenomenon of censorship of art in Poland after 1989, and the fourth is a list of censorship cases. All the parts are relatively autonomous, but it does not mean that they were created separately. They are rather interrelated and permeate one another on various levels. The starting point for the analysis was drawing up a list of art censorship cases in Poland. It should be emphasized that it is not a completely original list as I referred to the work of Jarosław Minałto¹⁴ when creating it, which then became the basis for the list published by the Indeks 73 initiative, a grassroots social project that for several years had provided invaluable support for the protection of artistic freedom of expression in Poland. Unfortunately, the website of Indeks 73 has not been updated for many years¹⁵. Both lists - Minałto’s and the one that used to be updated by Indeks 73 – have been supplemented. Their items were reviewed, expanded and enriched by sources and several dozen new entries were added. The new list includes various activities aimed at limiting the freedom of art (its creation, dissemination and access to it). Although the list of censorship cases is the most comprehensive list of this type existing in Poland, it will always be fragmentary: it is difficult to disclose or even name all the cases in which for some reasons a work was not created, was not shown or its shape was changed. Nevertheless, the attempt to include the collected evidence in the form of qualitative and quantitative breakdowns has been made and various dependencies and dynamics of the studied phenomenon have been investigated on their basis (see pg 448)¹⁶.

With regard to the law, my considerations relate primarily to criminal and constitutional law. Civil and administrative law have been omitted. I also omit the conflicts between the protection of property and artistic freedom in the context of street art and the issues related to intellectual property - these problems are so specific that they deserve a separate study and would immensely complicate the structure of the work that is already very complex¹⁷. I focus on visual arts, but in the quantitative breakdowns and some discussions, different areas of activity have been taken into account. There were three reasons for this: first of all, the law does not distinguish between the genres of artistic creation and assigns the same scope of restrictions or protection to all of them; secondly, the boundaries between various artistic forms undergo constant erosion; thirdly, visual arts do not function in a cultural vacuum. When I consider this to be significant for the essence of this book, I also reach for examples bordering visual arts and visual culture. I define art by referring to the institutional context of the functioning of a given product and intention of the author. The term critical art often appearing on the pages of this book is defined as artistic work whose purpose is not, as in the case of classical avant-garde, to change social reality in the name of some utopia, but only to reveal the hidden power relations functioning in the society¹⁸. Critical art rejects the idea of autonomy and universality and engages in the here and now instead, using heterogeneous formal means. At the same time, the term refers to two phenomena: the artistic trend which gained a strong position in the Polish art world in the 1990s and began to fade at the beginning of the 21st century and a specific creative attitude occurring regardless of time and place. The concept of engaged art includes both the critical approach and other manifestations of art aspiring to influence the here and now or comment on it directly. The concept of avant-garde, depending on the context, refers to the historical avant-garde movements of the early twentieth century, replaced after WW2 by the neo-avant-garde, or is understood ahistorically as a field of artistic experimental production, contesting the dominant and broadly recognized tendencies in art and mass culture.

In the opening chapter of the book I analyzed the development of immunity of the artist and art throughout history. In other words, an attempt was made to answer the question about the historical origins and contemporary implications of the conviction prevalent in Western tradition that more is permitted in art.

The subsequent section is specific because in the Polish version of the book (published as Volume 1 Aspekty prawne – [Legal aspects]) it was created in collaboration with Anna Demenko - advocate and Doctor of Criminal Law at Adam Mickiewicz University in Poznań. I emphasize the co-authorship with an appropriate annotation in the title of the chapter and the change of first person singular narration into first person plural. In this chapter, we discuss how the concept of art functions or should function under the Polish criminal law, bearing in mind the constitutional guarantee of the freedom of art. We focus on two issues: first of all, on determining the content of the work of art as an important element of objective features of the prohibited act. Secondly, on the so-called countertype of art, i.e. the issue of excluding the unlawfulness of behaviour that is deemed as artistic. Taking into consideration the findings made in this respect, in the further part of the chapter we discuss selected areas of the conflict between art and criminal law related to the protection of religious feelings, pornography, protection of honour and dignity and hate speech.

While the legal part, for understandable reasons, takes into account the current legal status (mid-2017) and the latest case law, for the time frame of the third part, its relation to the list of censorship cases included at the end of the book is important. It can be said that the list took on the form of a chronicle, which is traditionally regarded by historians as an intermediate link between the non-narrative form of the annals and the contemporary form of historiographical narrative (proper history). The annals is a chronologically arranged record of dates and a list of corresponding events, which lacks a social centre authorizing the selection of events and the telling of a story. The chronicle, which originates from the annals, gains such a centre, but is still regarded as an imperfect form of historiographical writing as it does not end with a moralizing conclusion. In the chronicle of censorship cases such a centre, a metaphysical point of reference that transforms the difference into similarity, is, of course, the dialectic of what can and what cannot be expressed. The chronicle ends in 2010, so at this point the third part (historical and analytical) must also end. The adoption of such a scope enabled a minimal analytical distance (the Polish texts were written in the years 2010 - 2014), but as a matter of fact nothing has happened since then which in traditional historical works could be deemed as a point concluding the narration: no peace deal was signed, none of the regimes fell, no breakthrough law was passed. After Hayden White, it can be said then that the study breaks off as if in media res. This is due to the fact that censorship (not only pre-preventive, but also ordinary prohibitions) exists as long as there is communication and you will never run out of events worth noting. It can be said that the struggle with censorship will not end - just as with the moving Annals of St. Gall described by White - until the biblical Second Coming. Therefore, even though the story was concluded with a moralizing narrative, it did not really close anything, the moment of interrupting the narration was a random point in a continuously fluctuating, endless struggle against prohibitions¹⁹.

The third part of the book begins with a brief description of censorship during the time of the Second Polish Republic (1918-1939) and the Polish People’s Republic (1944-1989). In the latter case, the activity of the Main Office of Control of Press, Publications and Shows (GUKPPiW) was only broadly outlined (there is no research on this subject in Polish art history), and the sources of the phenomena which have been actively shaping the freedom of art in Poland till the present day are discussed in more detail instead. Thereafter, on the basis of the collected factual material, an attempt is made to capture the characteristic, qualitative and quantitative features of the issue of censorship in art after 1989. Five periods were thus determined: transition, formative, qualitative escalation, quantitative escalation and stabilization. In the characteristics of these periods, a broader artistic, social, and particularly political and media context was taken into account, the sequences or correlations of events, their complexity, significance, legal and factual implications were pointed out. The third part also includes an extensive analysis of an unprecedented criminal case in contemporary Poland against the artist Dorota Nieznalska.

***

The English version of the book is an abridged and adapted to the needs of non-Polish readers version of a two volume monograph Cenzura w sztuce polskiej po 1989 roku, t. 1 Aspekty prawne [Censorship in Polish Art after 1989, vol. 1 Legal Aspects], co-authored by Anna Demenko, and Cenzura w sztuce polskiej po 1989 roku, t. 2 Artyści, sztuka i polityka [Censorship in Polish Art after 1989, vol. 2 Artists, Art and Politics] (Warszawa 2014). The starting point for the work on the Polish book was my doctoral dissertation Swoboda wypowiedzi artystycznej w Polsce po 1989 roku [The freedom of artistic expression in Poland after 1989] defended in 2013 in the Institute of Art History at Adam Mickiewicz University in Poznań under the supervision of Prof. Piotr Piotrowski.

Only a few years have passed between work on the Polish book and its English version. During that time, many valuable studies were published that shed new light on the problems discussed, and both Poland and the world have changed considerably. Events such as the annexation of Crimea by Russia, Brexit, the immigration crisis, a startling reshuffle on the world and Polish political scene, the emergence of new concepts (i.e. post-truth, fake news, trolling, alt-right, hybrid war), which, although not directly related to art, would force a different approach to many issues regarding freedom of expression. However, I remained faithful to the main assumptions of the Polish original.

Last but not least, I would like to thank a few persons without whom this book would never have been written: the late Prof. Piotr Piotrowski and Dr. Anna Demenko for substantive support; Dr. Paweł Drabarczyk vel Grabarczyk from the Side of Image Foundation for initiating and coordinating the project; the Deputy Rector of the Academy of Fine Arts in Warsaw Prof. Wiktor Jędrzejec and the Dean of the Faculty of Visual Culture, Prof. Wojciech Włodarczyk for funding the project at a moment of crisis, when it seemed that several months of hard work would have been wasted.

¹ Limiting clauses indicate when and under what conditions it is possible in liberal democracies to limit the rights and freedoms of the individual, cf. e.g. Art 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; Art 11, 13 and 52 of the European Charter of Fundamental Rights; Art 19 of the German Constitution, or Art 31(3) of the Polish Constitution.

² On self-censorship see S. Mintcheva, Censor within, in: Contemporary Threats to Free Expression , eds. R. Atkins, S. Mintcheva (New York – London: The New Press 2006), 299-303, see also pp. xv-xxiv.

³ It can be said that in the case of doxa, the functioning of a prohibition itself should be prohibited - a prohibition should always remain unconscious. The dialectic of ortho- and heterodoxy, i.e. that which is disputable, should effectively obscure the fact that there is still something repressed, other, different. Once realised, the difference gains a phantom reality and is included in what is disputable, thus initiating a debate at the level of hetero- and orthodoxy.

⁴ R. Burt, Introduction. The ‘New’ Censorship, in Administration of Aesthetics , ed. R. Burt (Minneapolis – London: Univ. of Minnesota Press, 1994), s. xvi-xvii; Burt refers to: P. Bourdieu, Outline of a Theory of Practice , trans. G. Raymond and M. Adamson (Cambridge: Polity Press, 2016); for other critical approaches to censorship see e.g.: S. C. Jansen, Censorship. The Knot that Binds Power and Knowledge (New York - Oxford Univ. Press, 1991), J. Butler, Excitable Speech: A Politics of the Performative (New York – London: Routledge 1997).

⁵ Burt, Introduction , xviii-xxi.

⁶ See P. Bourdieu, On Television (New York: New Press, 1998).

⁷ Bourdieu, On Television , 62.

⁸ P. Bourdieu, Rules of Art: Genesis and Structure of the Literary Field , trans. S. Emanuel (Stanford: Stanford Univ. Press, 1996), 138.

⁹ Examples of indirect actions, hanging like the sword of Damocles, would include such activities as threats of politicians directed to art galleries, who say that they would cut off funding, liquidate the institution or dismiss the curatorial team; social protests attempting to force repressive actions by politicians; submission of notification of an alleged crime to the PPO, but also the withdrawal of private entities from the support of artistic undertakings considered controversial, or media rhetoric aimed at delegitimising specific types of contemporary art.

¹⁰ J. Kochan, Życie codzienne w matriksie . Filozofia społeczna w ponowoczesności (Scholar: Warszawa, 2007), 78.

¹¹ The course and effects of this modernisation, however, raise many doubts. Partial changes in the economic system which were commenced by the Communists in the mid-1980s made it possible for the party’s nomenclature to acquire title to previously state-owned property. At the same time, the thorough reforms started in 1989, accurately called shock therapy, were associated with high social costs - unemployment, pauperisation and regression in numerous areas of life. The state assets were taken over by foreign corporations, and the structure of foreign investments observed since 1989 preserves the development model based on low labour costs and low value added in production, and maintains the peripheral role of the Polish economy, which currently exhibits the features of the sub-supplier’s economy model.

¹² W. Sadurski, "Prawo do wolności s ł owa w pan´stwie demokratycznym (zagadnienia teoretyczne)," Pan´stwo i Prawo , vol. 10 (1992); 8, 13.

¹³ H. Freshwater, Towards a Redefinition of Censorship, in Censorship & Cultural Regulation in the Modern Age , ed. Beate Müller (Amsterdam: Rodopi, 2004): 225–45.

¹⁴ J. Mina ł to, Kronika wypadków cenzorskich, Notatnik Teatralny , no. 39-40 (2006) and Notatnik Teatralny no. 45-46 (2007).

¹⁵ http://www.indeks73.pl/pl_,aktualnosci.php , accessed on November 9, 2014.

¹⁶ The diagrams showing the quantitative and generic breakdowns of cases of restricting the freedom of artistic expression are of course purely illustrative. It follows, for example, from the fact that there are works that mix the religious sphere with the profane of nudity. Rationalisation of censorship may then be of either moral or religious nature, or both of a moral and religious nature. In such situations, the latter option was adopted for the sake of simplification, as it was virtually impossible to determine the right reasons. The issue of homosexuality was separated from the general category of moral censorship.

¹⁷ On the legal aspects of unauthorised street art see: J. Dąbrowski, " The Medium is The Message – Graffiti Writing as McLuhan’s Medium," in Street Art: Between Freedom and Anarchy , eds. M. Duchowski, E. A. Seku ł a (Warszawa: ASP w Warszawie, 2011), 201-224. (the book is also available online: http://ibpp.mrrau.net/i/file/streetart_miedzy_wolnoscia_a_anarchia.pdf )

¹⁸ I. Kowalczyk, Ciało i władza. Polska sztuka krytyczna lat 90. (Warszawa: Sic!, 2002), 9-14..

¹⁹ On the forms of historical narration see H. White, The Value of Narrativity in the Representation of Reality, Critical Inquiry , vol. 7, no. 1 (Autumn, 1980); 5-27.

I. THE IMMUNITY OF THE ARTIST AND OF ART – A CRITICAL ANALYSIS

1.1 Sources of the Problem

The Venetian Precedent

On 18 July 1573, Paolo Veronese stood before the Inquisition Tribunal in Venice in order to defend his artwork entitled The Last Supper. The gigantic canvass (515 x 1310 cm), meant to be housed in the refectory of the Monastery of Santi Giovanni e Paolo, had only been completed three months prior. The source of conflict for the Holy Office, was the crowd of figures surrounding Jesus Christ and the Apostles – after all, in the Holy Scriptures there had been no mention of other guests at what was to become known as The Last Supper. The demeanour of this group was also considered questionable, and the Tribunal first inquired of Veronese as to whether he had suspected the reason for him being summoned:

V.: From that which was said to me by the Holy Fathers, that is, the Prior of SS. Giovanni e Paolo, whose name I don’t know, who told me that he had been here, and that Your Illustrious Lordships had given instructions that he should have had made the Magdalene in the place of a dog, and I responded that, I would have freely done that and other things for my honour and that of the painting; But that I did not feel that such a figure of the Magdalene could appear as if it were right, for many reasons, which I will give at any time, if I am given a chance to say them. …

T.: In this Supper, which you made at SS. Giovanni e Paolo, what is the meaning of the depiction of the who has blood coming out of his nose?

V.: I made him for a servant, who due to some accident had a bloody nose.

T.: What is the meaning of those armed men dressed as Germans each with a halberd in hand?

V.: It is necessary that I say twenty words.

T.: Say them.

V.: We painters take the license, which poets and madmen take, and I made those two Halberdiers, one who drinks and the other who eats, near a blind staircase. They are placed there, that they may do some service, it seeming to me fitting that the owner of the House, who was great and rich according to what I have heard, should have such servants.

T.: That man dressed as a Buffoon with the parrot in his fist, for what purpose did you paint this in that Canvas?

V.: For ornament, as is customary. …

T.: Who do you believe was really to be found at that Supper?

V.: I believe that Christ with his apostles were to be found; but if in a picture space is provided I adorn it with figures according to the stories.

T.: Were you instructed by any person that you should paint in that picture Germans and buffoons and similar things?

V.: No, sir: But the commission was to embellish the picture as I saw fit, which picture is large and capable of holding many figures, as it seemed to me.

T.: Are not the ornaments which you the painter are accustomed to place around paintings and pictures supposed to be fitting and proper to the subject and principal figures or are they to be truly [crossed out: by chance] at your pleasure according to what comes to your imagination without any discretion or judgment?

V.: I make paintings with that consideration of what is fitting, that my intellect can grasp. Asked if it seemed to him fitting that at the last supper of the lord it was fitting to paint buffoons, drunkards, Germans, dwarfs and similar scurrilities. Answered: No, sir.

T.: Why then have you painted this?

V.: I did it because I supposed these people were outside the place where the supper was to be held …

T.: Do you not know that in Germany and other places infected by heresy they are accustomed, with various paintings full of scurrilities and similar inventions, to spread [lies?], vituperate and pour scorn on the things of the Holy Catholic Church, in order to teach bad doctrine to idiotic and ignorant people?

V.: Sir, yes, this is bad: but I return again to what I have said, that I am obliged to follow what those greater than me have done.

T.: What have those greater than you done, have they perhaps done something similar?

V.: Michelangelo in Rome in the Pontifical Chapel painted our Lord Jesus Christ, his mother and Saint John, Saint Peter and the Celestial Court, all made nude from the Virgin Mary on down in different poses with little reverence.

T.: Do you not know that in painting The last judgment, in which no clothing or similar things are presumed, it was not necessary to paint clothing, and in those figures there is nothing which is not spiritual, nor are there buffoons, nor dogs, nor weapons, nor similar buffooneries? And does it seem to you because of this or any other example that you did right in having painted this picture in that way which it is, and do you want to argue that the picture is right and decent?

V.: Illustrious Lord[s?] no, I do not want to defend it; but I thought I was doing right. And I did not consider so many things, thinking even so much not to make disorder, that those figures of buffoons are outside the place where Our Lord is. …²⁰

Paolo Veronese, Feast in the House of Levy [Uczta w domu Lewiego], 1573, oil on canvas, 555×1280 cm

In the end, the initial wording of the Tribunal’s decision, stipulating the introduction of changes to the painting so as to make it more in line with the motif of The Last Supper, was crossed out. Instead, Veronese was required to correct and perfect the image within a period of three months following the issuance of the verdict. He was to do so at his own cost, under the threat of sanctions to be imposed on him by the Holy Tribunal. However, Veronese took advantage of a loophole offered, and instead of repainting the work in its entirety, he changed the title to Feast in the House of Levy. Thus, it was no longer subjected to such grave doctrinal scrutiny by the Church as The Last Supper had been, and was then deemed more in line with the reality of the image it projected, hence the Inquisitors acquiesced to the changes.²¹

The reason I have quoted here parts of the interrogatio lies not only in the unprecedented nature of the event (a prominent artist who was for the first time interrogated by a court about his work), but also on account of the surprisingly contemporary character of the many problems that arose in that trial held over half a thousand years ago, and which today again give us pause to think of censorship in contemporary art. The interrogation of Veronese confirmed the existence of emancipatory ambitions in artists, which were triggered in this case in reaction to the narrowly framed ‘discourse on creation’, understood here as a complex arrangement of social, political, economic and cultural elements being equivalent to the modern notion of the artist and his art. It was in the 15th and 16th centuries that when a craftsman decided to circumvent (some of) the confines of his guild, he started seeing his work in the categories of freedom, resulting in certain licentiae poeticae which were initially limited to formal aspects. Once these aspects started gaining an increasing autonomy, they would at times overshadow the subject matter and thus result in transgressions (not just in the aesthetic sense). Since transgressions undermine different power relations, they are met with censorship, legal sanctions, and finally iconoclasm. This is paralleled with a growing trend to justify their occurrence, as they are the product of the allegedly incredible talents of their creators, who are thus granted a very special position – an artistic immunity is born (the conviction that more must be allowed in art). Once the myth of the divine creator is not sufficient to grant artistic immunity, it is augmented by diverse ways of explicating the transgressions – a range of defence tactics. Having their source in the Renaissance, these processes came to their full fruition in the 19th century, and despite the numerous revaluations that followed, they constantly influence the art discourse of the present era, particularly the question of freedom of artistic expression.

From Craftsman to Genius

The epoch of the Renaissance brought with it a loosening of the harnessing standards hitherto practiced by the guilds, and in so doing raised the position of the creator-craftsman on the social ladder. The increasing number of high value commissions and the admiration for how they were delivered, made it easier for their creators to free themselves of certain restrictions. On entering the orbit of high-class court communities, the artists began acting as their own agents and promoting an aura of uniqueness in their work. A new concept of genius was born in the Renaissance, coupled with the conviction that a work of art was not a mere commodity. Furthermore, it was not just the artwork that was being paid for, but also the talent and the reputation of the artist. It should be noted that Veronese’s position at the time of the trial was relatively strong, the verdict of the Tribunal was rather mild, and the hearing was held behind closed doors. It is quite probable that the Inquisitors wished to avoid a scandal that no doubt would have transpired had they imposed sanctions on an artist so highly appreciated in Venice. The painter appeared before the Tribunal, not as some anonymous labourer from a craft guild, but as an individual who was certain of the value of his artistic decisions and confident in his exceptional skills.

The final disintegration of guild monopolies took place in the 18th c., very much under the influence of the royal Art Academies. A gradual development of the autonomous canon of skills and quality of production started taking place in academic milieus. Indeed, the academic system was a method of professionalizing the artistic vocation which was different from the guild-based system. A process of advancing intellectualization was happening in parallel; new treaties were being written and – due to the 18th c. flourishing of the Salon as an institution – so were critical writings. In the mid-18th c., the term fine arts came into use, popularized by Charles Batteux. This was the final separation of arts from crafts, and the term artist appeared in the modern understanding of the word. Hence, the immanent fusion of the concept of talent and calling (which was not the norm in the guild-based systems) with the appropriate prestige that went along with it. As a result, the following century saw a sudden rise in the number of creators, most of whom, however, were forced to function outside of the hermetic and petrified system of the Academies. This was one of the reasons why art was slowly but surely liberating itself from fossilized conventions and limitations (this time academic). Initially, the process was connected with romantic individualism and irrationalism, but from the mid-19th c. onwards, the focus was placed on the here and now. It was particularly true in the theory and practice of realism, which openly postulated the rejection of ready formulae of imaging, and aimed at a more objective description of the current reality. The pluralization of the artistic life meant the emergence of more or less formal exhibition initiatives, competing with the Salon. Just as crucially important was the recognition of individuals who were involved in art outside of the Academy: non-academic artists, critics, merchants and collectors. It all happened at the cost of the wider public, whose opinion lost in significance after the impressionist revolution and the fall of the Salon. The public was no longer in a position to present its views without the fear of being discredited by someone more competent. The situation that was taking place was, in the words of Pierre Bourdieu, about the autonomisation of the field of art, which was gaining independence from external (heteronymic) assessments of profanes, i.e. people who had no artistic competences, and who were not producers in the given field. One important trait of this process was that of liberation from the heteronomy of the economic field. Art was no longer made by means of commissioned work ordered by aristocratic sponsors in order to fulfil certain specific objectives (religious, ceremonial, political, etc.). A new, anonymous market was now opened to artists, with a bourgeois clientele and an increasingly professional art trade. In the latter part of the 19th c., as Bourdieu notes, the idea of art for art’s sake took precedence over practical objectives and the immediate satisfaction from profit. It was commonly believed that the recognition of innovative art came over time, hence immediate economic profits diminished art’s prestige, and a financial failure was, in effect, a symbolic victory of sorts.²²

The Renaissance discourse on art also reveals the beginnings of the artist’s mythology. Thanks to unique assets such as talent, power of imagination, knowledge and skills, the artist was like God in creating something from nothing. This was written about by Marsilio Ficino, Albrecht Dürer or even Leonardo da Vinci, who thus legitimized a certain syllogism: the creative act makes the artist an exceptional genius, someone almost divine. And just as divine creation knows no limits, so is the artist free of any bounds. If so, then both the artist and all his creations – even those which go beyond all assumed norms – are above the rest of the society and should, therefore, be subject to separate criteria of moral or legal assessment. It was exactly the 15th c. that marked the beginning of an increasing number of written texts glorifying the talent and skill of different creators. The authors were often artists themselves, as was the case with Alberti, Ghilberti or Benvenuto Cellini in the following century. It was apparently Cellini to whom Oscar Wilde referred when saying: …crucified a living man to study the play of muscles in his death agony, a pope was right to grant him absolution. What is the death of a vague individual if it enables an immortal word to blossom and to create, in Keats’ words, an eternal source of ecstasy?²³ At the same time, the artists – or at least the most prominent ones such as Michelangelo or Caravaggio – could lead different lifestyles, be eccentric or even socially alienated, and still enjoy the patronage of popes, monarchs, and the mighty. It is suspected that it was the artistic recognition and respect of King Ferdinand VII (1813-1833) that saved Francisco Goya from sanctions by the Inquisition²⁴.

In the 19th c. further changes took place as far as the perception of artists and their role. This was probably due to the romantic shift and the emergence of bohemia, its lifestyle and mentality.²⁵ The romantic idea of a creative individual meant that the artist is an individuality capable of realizing all the potential talents and predispositions of a person to a degree which has not been granted to any other individual. Romanticism gave the artist and art the autonomy which separated it from all other forms of human social activity – thus separating the artist from a social background.²⁶ It was also during this period that most of the myths about artists crystallized, such as the idea of the freedom to create. They all served to justify cases of violating whatever limitations existed. Theophile Gautier – who popularized the term l’art pour l’art – recalled that in those times, in the Romantic school one had to have a pale complexion, with a grey, slightly greenish or – better yet – a cadaverous shade … the word ‘artist’ clarified everything and justified any whim, excess or eccentricity.²⁷

The popularity of bohemia peaked in the latter half of the 19th c. Its Romantic heritage lay in the conviction about the hieratic, quasi-magical role of the artist who was to dominate the society. Members of bohemia (who did not necessarily all have to be artists) shared the common belief in the supremacy of art, its autotelic, non-utilitarian character. They were also opposed to the bourgeois, though it was actually this social class that was the prime recipient of their art and, at the same time, the key source of their livelihood. This antagonist attitude manifested itself in, for example, shocking dress style or behaviour, and disrespect for convenance or other rules of social cohabitation, which resulted in a reputation of artists as a group which violated social norms. Marian Golka, art sociologist, writes: For almost a hundred years, bohemia exerted a significant impact on the entire artistic culture of Europe. It popularized the model of an artist as an outsider and a desperado who was able to give up on personal fortune, or even wage a war against the entire society – all in the name of art and for the sake of art. It also popularized artistic myths which had already appeared here and there, but it was not until now that they were granted unprecedented rank.²⁸

Golka proposed seven main myths of the artist, which came into full bloom in the 19th c.: exceptionality (the artist is different from all others and this difference is exceptional), individuality (the artist is one and unique, hence incomparable), calling (a true artist is born), selflessness (art is not a discipline of profit making), suffering (the price a genius has to pay), rejection of the artist by the society, and freedom.²⁹ Each and all of the above traits make up the image of an almost divine individual – a mythical figure of an artist who should thus be treated differently from the rest of the society.

The quasi-religious nature of the 19th c. mythology of the artist should be emphasized here. It was connected not only with the myth of the ingenious individual charged with hieratic responsibilities towards the society, but also with the belief that art took over certain specific religious functions. Obviously, it did not mean that it was to return to its original role in service of religion – quite to the contrary. When the theory of l’art pour l’art appeared, art was ridding itself of all utilitarian dependencies: instead of entering the field of religion, it replaced it; instead of involving itself in the rituals of the Church, it extracted the ritual from itself.³⁰ By the end of the 19th c., the artists who expressed the spiritual side of human nature were seen by the part of society which was more materialistically oriented and skeptical towards Christianity, as the spiritual hope for the West. The said artists would distance themselves from the need to express traditional moral principles or beliefs of the middle class. Instead, they focused on emotions, which undoubtedly helped in the perception of art as an autonomous sphere – being a calling in itself. In 1912, Vasyli Kandinsky wrote that the painterly creation was a mystical act, food for the soul, and the artist was the priest of beauty. The creator remained absolutely free in art, and was guided through this freedom by the principle of internal necessity, which took painting – the genuinely pure art at the service of the divine – to new heights.³¹

We also find interesting elements of artistic mythology in Veronese’s defence, who stressed the objective autonomy of artistic creation (discussed in more detail further on), but who also introduced subjectively differentiating elements. Veronese did not explicitly underline his exceptional position but instead compared – with a somewhat perverse humbleness – painters to madmen. Such a comparison stemmed from the specific personal immunity granted to artists. After all, madness has always been a trait requiring special social and legal treatment. The acts of a madman and the liability for them were classified according to non-standard rules.³² Although the artistic myth of madness is as old as antiquity, it became particularly popular owing to the para-scientific concepts of Cesare Lombroso. This Italian psychiatrist and criminologist published a book in 1864 entitled The Genius and Madness [Genio e follia], in which he argued that there were traits shared by a genius and a madman of both the psychiatric nature (such as over-sensitivity, vanity, egoism, melancholy, fixation on a single topic, irritability), as well as in terms of physiology (such as problems with the pulse, appropriate feeling of temperature, appetite, nervous ticks). Lombroso’s theories found fertile soil as this was the image desired by both the bourgeois viewer, who had to somehow rationalize artistic provocations, as well as by the artists themselves, so eager to be different from the bourgeois.³³ The most important psychoanalysts, such as Sigmund Freud, Otto Rank or Ernst Kris, also wrote about the connections between neurosis and artistic creation.³⁴

Towards the Autonomy of Art

One of the most interesting aspects of Veronese’s speech was the stress he put on artistic freedom in its formal aspect, and which began to develop at the cost of other (the moralizing, didactic, and the ritual) functions of art. In painting and sculpture, biblical events became the pretext for the search for beauty and harmony (within the regime of mimesis, of course), with ancient artworks being the unattainable standards of perfection. A work was created in line with the rules of art which were also subjected to independent evaluation. It seems that Veronese saw members of the Tribunal as incompetent and unable to fully appreciate the quality of his artwork. He thus delicately suggested that should he be given the chance, he would explain the artistic choices he had made. During the hearing, the painter stressed that he had added the jester with the parrot for decoration – he used this purely aesthetic argument to justify his decision to include an entire spectrum of characters unsuited to the subject matter. The artist claimed that the painting was large and had to be dressed up. At the same time, Veronese believed that the addition of Mary Magdalena to the image, as the Inquisitors suggested, would not be a good idea, though he was ready to comply in defence of his honour and that of – sic! – his work.

Such an attitude was nothing out of the ordinary in the Renaissance. Giorgio Vasari defended a painting by Botticelli under the scrutiny of the Inquisition – Assumption of Mary (presently at the National Gallery in London), ignoring issues of dogmatic faithfulness, and focusing his entire attention on the painterly skills of the artist.³⁵ It was Vasari who started seeing art in categories of the evolution of style and progress, as well as talent – something he valued highly. It all resulted in assigning a more sizeable role to the imagination and gradually assisted in breaking away from convention. According to Vasari, Michelangelo was an ingenious hero, unbeatable by either his contemporaries or future artists, one who won against art – and who used his own invincible will to transform tradition, the principles of equilibrium, peace and harmony.³⁶

Words condemning such opinions can be found in the famous letter by Pietro Aretino to Michelangelo from 1545 (i.e. the time when the first version of Vasari’s The Lives was in the making). In it, Aretino criticized Michelangelo for his decision when working on the Vatican fresco of The Final Judgement to use the license, so unallowable to the spirit, that you have taken in expressing the ideas. ... of our absolutely true faith.. Aretino also showed his surprise that a man of such talent and wisdom could have wanted to show to the people no less religious impiety than artistic perfection and directly accuses Michelangelo, claiming that he valued art more than faith. He ends his letter with an appeal for the painter to self-censor the more indecent fragments of the fresco (indeed, some could even evoke the impression of an intentional provocation), and also with an appeal for Pope Paul III to react appropriately.³⁷ Worth noting is that Aretino never saw the fresco with his own eyes, and only knew of it from drawings and prints. The rather imprecise information about the painting as described in the letter suggests that the author mainly quoted what was being said about the work. Bernardine Barnes notes that the well-practiced art recipients, i.e. the Church’s sponsors, gave artists much freedom. The artists took full advantage of this, not hesitating to show the arduousness of artistic creation and proving their skills by, for example, showing naked bodies in complex arrangements and poses. The ever-wider circulation of prints available to the uneducated and gauche public must have, however, impacted the view of what was allowed in art – particularly in the times of the Counter-Reformation. It must have also impacted the attitude