A constitutionalised perspective on freedom of artistic expression

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