"To paint everything, to write everything and to say everything..."

Yesterday, as the NY Times reports, it was 50 years ago that Alen Ginsberg's poem Howl was ruled to have “redeeming social importance” and therefore not to be obscene by San Francisco Municipal Judge Clayton W. Horn. There are interesting audiocasts online of Ginsberg reading Howl (+ an extended discussion of free speech issues today) and of Lawrence Ferlinghetti discussing Howls' publication and the ensuing obscenity charges on the ACLU website.

The Howl saga invites comparison with Judge Spielmann's dissent to the European Court of Human Right's judgment in Muller v. Switzerland (1988). Muller concerned the exposition of paintings in Switzerland that were labeled obscene. The Criminal Cassation Division of the Swiss Federal Court, dismissing an appeal by the artist against obscenity charges and seizure of his paintings, held:

"The decided cases show that for the purposes of Article 204 of the Criminal Code, any item is obscene which offends, in a manner that is difficult to accept, the sense of sexual propriety; the effect of the obscenity may be to arouse a normal person sexually or to disgust or repel him. ... The test of obscenity to be applied by the court is whether the overall impression of the item or work causes moral offence to a person of ordinary sensitivity ...
The paintings in issue show an orgy of unnatural sexual practices (sodomy, bestiality, petting), which is crudely depicted in large format; they are liable grossly to offend the sense of sexual propriety of persons of ordinary sensitivity. The artistic licence relied on by the appellant cannot in any way alter that conclusion in the instant case.
The content and scope of constitutional freedoms are determined on the basis of the federal law currently in force. This applies inter alia to freedom of the press, freedom of opinion and artistic freedom; under Article 113 [of the Federal Constitution], the Federal Court is bound by federal enactments ... In the field of artistic creation [it] has held that works of art per se do not enjoy any special status ... A work of art is not obscene, however, if the artist contrives to present subjects of a sexual nature in an artistic form such that their offensiveness is toned down and ceases to predominate ... In reaching its decision, the criminal court does not have to view the work through an art critic’s spectacles (which would often ill become it) but must decide whether the work is liable to offend the unsuspecting visitor.
Expert opinion as to the artistic merit of the work in issue is therefore irrelevant at this stage, though it might be relevant to the decision as to what action to take in order to prevent fresh offences (destruction or seizure of the item; Art. 204 § 3 CC ...)".

In his Dissent accompanying the ECHR's ruling that no violation of Article 10 of the European Convention (freedom of expression) had occurred, Judge Spielmann made extensive references to the litigation following the publication of Baudelaire's Les Fleurs du Mal. The judgment of the Criminal Chamber of the Seine Regional Court in that case is from 1857 - exactly 150 years ago.

The public prosecutor in that case argued:

"Gentlemen, ..., I say to you: take a stand by your judgment in this case against these growing, unmistakable tendencies, against this unhealthy fever which seeks to paint everything, to write everything and to say everything, as though the crime of offending public morality had been abolished and that morality no longer existed".

Baudelaire's lawyer countered:

"Gentlemen, change this into prose, delete the rhyme and the caesura, grasp the substance of this powerful and vivid language and the underlying intentions; and tell me if we have ever heard this language being delivered from the Christrian pulpit, from the lips of some fiery preacher; tell me if the same thoughts would not be found, perhaps sometimes even the same expressions, in the homilies of some strict and unsophisticated father of the Church".

On 31 May 1949, the Paris Court of Cassation quashed the condemnation. Baudelaire had by then been dead for 80 years. Josef Felix Muller had to wait for 7 years to get his seized paintings back. Today, 50 years after Judge Horn's courageous decision, American radio stations are too afraid of sanctions to actually broadcast readings of Howl. Fortunately, the internet offers some reprieve - not yet available to Baudelaire and Muller - but isn't it troubling to see how easily some lessons are forgotten?