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DA: Statement by Dene Smuts, Democratic Alliance Shadow Minister of Justice and Constitutional Development, on the Film and Publication Board's attempt to classify "The Spear" (30/05/2012)

30th May 2012

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The Democratic Alliance (DA) learns with disbelief that the Film and Publications Board (FPB) is persisting with its attempt to classify the original, pre-defaced and now no longer existing painting “The Spear” by Brett Murray, and will announce its rating of the non-existent physical work in the next week.

Does the FPB even know its own Act? Counsel for the City Press this morning apparently had to remind the Board that newspapers are excluded from their jurisdiction.

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The FPB appears to be scraping the bottom of the barrel in an attempt to seek grounds for restricting the distribution or display of “The Spear”. Classifying the original painting as XX because it is disturbing, harmful or age-inappropriate for children – as the FPB appeared to be arguing this morning – and imposing age restrictions and other conditions to protect children from exposure would be just silly.

Neither the Goodman Gallery nor the City Press Art Exhibition Review pages were contexts in which unsuspecting children were going to trip over the image in the first place. The fact that the original painting went viral on websites and social networks (measurably as a result of the ANC’s attempts at censorship) still does not materially change that fact.

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The obvious reason for the FPB’s use of the “children’s standard” is that none of the “grown-up criteria” for banning or restriction apply. Even the pitifully watered-down provisions of the 2009 amendment to the Film and Publications Act do not permit the board to impose a ban or an XX rating for adult exposure.

The painting was or is not, “advocacy of hatred against any identifiable group characteristic that constitutes incitement to cause harm” – which is already an unjustifiable widening of the scope of application of the Constitutional hate speech provision. Even if this was the case, it would escape censorship because it is demonstrably a bona fide work of artistic merit and on a matter of public interest – both grounds for exemption when judged in context.

The painting was or is not “explicit conduct” or “conduct or an act” which “promotes harmful behaviour”. It was not a depiction of conduct of any kind. It was symbolic of traditionalist, patriarchal power in an unholy and unworkable alliance with Leninism, instead of all morality being subjected to the “proletariat”. Democratic centralism is being turned into a family business.

Frankly, the vandalised painting is more frightening to children than the original.

The pressure exerted on free speech brought to bear by the ANC this past fortnight has been bad enough, but the FPB is trying to exercise formal censorship and that is worse. Some of the 2009 amendments to its Act have already been struck down by Judge Mathopo in the South Gauteng High Court for unconstitutionality and resulted in magazines (like newspapers) gaining exemption.

If the FPB persists in trying to restrict the painting the next step will have to be legal action to stop the board from trying to censor works of art.

We are not far away from the burning of books that occurred in Germany in 1933 when the Nazi youth sent “unGermanic” writers’ work up in flames. Murray’s work is effectively being called “unAfrican”.

The decision by the FPB today, and the vehemence with which the ANC and its allies have pursued “banning in perpetuity” Murray’s work represents yet another incident in the chain of events that is taking us further and further away from the free speech dispensation ushered in by our post-Apartheid Bill of Rights which is fundamental to our democracy. This has to stop.
 

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