A constitutionalised perspective on freedom of artistic expression

Abstract

In terms of section 16(1)(c) of the South African Constitution, Act 108 of 1996, artistic creativity is regarded as a manifestation of freedom of expression. However, unbridled artistic expression can sometimes go to the extremes of repulsiveness. For example, art, which takes on the form of pornography, can for instance be an insult to the dignity of women. In terms of the South African Constitution, a too liberal (and harmful) expression of artistic creativity can be limited in terms of section 36 of the Constitution by means of law of general application. The vital issue is to decide when and how to limit artistic creativity so that it does not unnecessarily hamper freedom of artistic creativity but at the same time to ensure the protection of societal norms against the unacceptable vulgarity of unbridled art. In an effort to find the correct recipe, this article takes a few pages from American litigious experiences and together with a few South African statutory directives, it tries to determine when, how and under what circumstances freedom of artistic creativity is to be limited.


(South African Journal of Education: 2001 21(4): 260-263)