Inter arma silent Musae? Swoboda wypowiedzi artystycznej naruszającej porządek publiczny

Abstract

Courts of different jurisdictions (including the ECtHR) tend to employ the notion of “artistic expression” intuitively. Definitional attempts are rare (see e.g. the ruling of the Canadian Supreme Court in Sharpe). One may postulate that “artistic” is the expression which is rooted in the sphere of sensitiveness of an individual appealing to the same sphere of other individuals. The consequence of such understanding of artistic expression is that it is designed to “offend, shock and disturb” (i.e. to appeal to human feelings) by its definition. A further consequence is that artistic expression should be likely to have impact on the public order. However the case-law of the ECtHR proves that it happens only when artistic expression is contaminated by political elements. Purely artistic expression seems indifferent to the public order.