When free expression comes second to fear of protest

If there’s a lesson to be learnt from recent incidents of censorship in the UK arts sector, it’s that a really noisy public protest will close a show that you don’t want to see – or want others to see either.

Faced with a disruptive demonstration outside a public venue, the police will tend to advise management to simply close the play, exhibition or other cause of offence, rather than commit the resources needed to preserve free expression and public protest rights at the same time.

Fact is, as my fellow Vivarta associate Julia Farrington notes in a recent article for The Guardian, the police have a duty to support freedom of expression and to protect other rights. Few venue managers get the chance to make their case for freedom of expression. Few are aware of their rights.

“This is no surprise – for several reasons,” says Julia. “There is little training for arts professionals in art and the law. There is little in the way of legal precedent to guide arts organisations and their trustees. Also freedom of expression is innately complex, she says. The right to it includes the right to shock, disgust and offend. But it is not an absolute right. It is qualified by concerns covering national security, public order and the “protection of health or morals,” among other conditions.

Little surprise that arts organisations waver when their right to free expression is threatened. Last year the entire run of The City, at Edinburgh’s Underbelly theatre, was cancelled following protests over the company’s partial funding from the Israeli government. It was the first time a show had been shut down at the Edinburgh Festival Fringe in more than 60 years.

Protesting The City, in Edinburgh 2014. Photo Martin Kettle/The List

“The whole issue of freedom of speech and freedom of expression, that maybe people had been taking for granted, was juxtaposed against the freedom to protest, more so than it had been in a very long time,” Underbelly director Charlie Wood told the trade weekly The Stage. He has called on the Fringe Society to “go one step further” to protect shows threatened by protest.But what are their rights as artistic professionals in such circumstances?

To answer that, Tamsin Allen, senior partner at law firm Bindmans, and Julia have worked with a group of artists, lawyers and public policy experts to produce a series of information packs for Vivarta, in partnership with Index on Censorship and the law firm Clifford Chance.

The packs contextualise the law as it affects the right to free expression, how the right is represented, protected and qualified in UK legislation and what this means for artists and arts bodies.

They cover five areas of law that affect these protected areas – legislation covering child protection, counter-terrorism, race, religion and obscenity.The packs, funded by the UK Arts Council, explain the offences, and the roles and responsibilities of police and prosecuting services, as well as those of artists and arts bodies.

However, as recent events suggest, it is the pack on public order that is probably most relevant to the arts sector.It is far more likely that a public order issue emerges from the reactions of third parties to a work of art. Enter the police, to arbitrate over a public space that has become a stage, not just for a play, but also some deep-seated social conflicts.

The packs explain that the police have a duty to support freedom of expression and to protect other rights, to prevent crime and to keep the peace. They summarise relevant legislation, explaining the qualified nature of the right to freedom of expression due to the offences in each area of law, and give guidance how best to prepare if you think the work could be contested.

The guidance encourages arts organisations to be prepared to defend work they believe in, advises them on when and how to involve the police and on how to anticipate potential problems, guided as much by good practice and common sense as a detailed understanding of the law.

Meanwhile this year’s Edinburgh Festival Fringe is trying to extend the debate around last year’s unsatisfactory conclusion to events. This year’s programme includes Walking The Tightrope, a compendium of plays by world-class dramatists on the theme of freedom of speech; Welcome to the Fringe: Palestine Day, by specially invited Palestinian artists; and Here Is The News From Over There, a self-styled “borderless Twitter ballad from the Middle East”.

The packs can be downloaded here.

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