Dreaming Again now published

Jenny and I have now received our copies of Jack Dann's new anthology of science fiction and fantasy stories, Dreaming Again, which contains Jenny's "Trolls' Night Out" and my "Manannan's Children". As it turns out, both of our contributions are fantasy stories, well sort of: I could argue that "Manannan's Children" is very close to being science fiction, despite its mythic trappings, and it has what might be considered a broadly transhumanist moral ... while Jenny's story is set very vividly in the present day, and involves (among other things) the scientific investigation of trolls' life cycles. In fact, "Trolls' Night Out" is a wonderful piece - quirky, funny, and (in a good way) horribly vivid.

I'm looking forward to reading Dreaming Again from cover to cover, though I don't know when that will happen because it's a huge book. Meanwhile, I can report that the people at Harper have done a wonderful job of the art work and packaging. It's a very satisfying volume to hold in your hand and admire; and judging by the quality of the writers from whom Jack coaxed material, it's also going to be satisfying to read. For those who are not aware of this project, it's a sequel to the equally monumental Dreaming Down-Under, from ten years ago (where the hell did that whole decade disappear to?), edited by Jack with Janeen Webb. The earlier book and its constituent stories won a slew of awards and many other accolades, and I'm sure we'll see that repeated.

I'm back!

I was away for a week, visiting family (and people who are close enough to count as family - hi, guys, if you read this) interstate.

Since I got home, I've been a marking machine. My INT2190/3190 (Poverty, Ecology, and International Justice) students had their exam on Friday, and the papers had to be marked super quickly in time for examiners' meetings this week. So I've spent the past four or so days buried under a mountain of exam booklets, from which I've occasionally emerged for cups of tea and/or bouts of mindless activity (since I haven't had much mental space left for ones requiring thought) on the net. Somewhere amongst that, I put a layer of revisions on a new article to appear in a book that will be published in the UK later this year.

Reasonably normal transmission will now resume. There's quite a lot to write about, but it can wait until tomorrow.

There are various other tasks awaiting my attention pretty urgently - work on JET and Voices of Disbelief, an interview with Greg Egan (i.e., me interviewing him) for Aurealis magazine, and the gods alone know what else ... but I'll be getting to it all in the next few days. Then there's a paper that I need to write for a conference the week after next, so it's going to be all systems go.

I am not the government

I am not the government. I cannot fine you, throw you in jail, or stop you saying whatever you like in any forum that is prepared to publish your thoughts. I can, however, delete any comments that you make on my own blog if they are defamatory, destructive, or just plain tedious ... or even at my whim. This blog is my private domain, and when you publish here it is a privilege, not a right.

I am not moderating the blog at this stage. I will continue to accept a wide range of comments, including comments that take a different view from mine on the issue of the day. I'm happy to engage in debate if the tone is rational, respectful, and constructive.

But my patience has been tested of late by some comments that have combined tedious spamming with blatantly defamatory accusations. As a result, I've already deleted a couple of comments, and I'll delete more as and when needed. If absolutely needed, in fact, I'll introduce comment moderation, but I'd rather not go to that extreme since it's cumbersome for everybody including me.

Use a bit of common sense when you comment here. If you write something on my blog that you wouldn't say in my home (without expecting that I might turf you out), then don't be surprised if it disappears.

And don't come whining to me about free speech ... or accusing me of hypocrisy (since I'm a free speech advocate). I don't exercise the coercive power of the state. But I do exercise a right to decide what sort of language I welcome on my own blog, just as I exercise a right to decide what language is welcome in my own house. You are my guest here, so please conduct yourself like one.

Blog break

As I hinted at in my last post, I've now reached a blog break point. I'll be away for just over a week - reading my emails and responding as much as I can, but not with enough access to the net to be blogging.

We resume normal transmission - soon

Just lately, this has turned largely into a blog about art, nudity, and freedom of speech. Those topics will never be far away, because I'm an unashamed free speech advocate. Since I use this place partly to draft up ideas that may later be used in more formal publications, you can bet that I'm thinking about writing much more on these issues.

Meanwhile, however, there's no end to the idiocy from bio-Luddites who want to oppose such obviously beneficial activities as research on embryonic stem cells and therapeutic cloning. I see that there is more debate going on about this in Australia even this week. So, I'll be back to those more usual topics soon. And once again, lurking behind it, is the large streak of irrationality that runs through our society because of its religious heritage. Just as there's still a sense of shame about the body that can lead to visceral, fanatical attacks on Bill Henson's rather cerebral photographs, so there's a ridiculous tendency to treat such insentient entities as early human embryos as if they were fully fledged persons. I won't forget to engage in my usual sniping at religion as a reactionary force that merits greater scepticism.

However, I'll be a bit scarce for about ten days. I'm pretty busy right now and will be away for a week from Thursday. Do drop in with your comments, though. I'll be looking in from time to time and responding as needed.

Organise for free speech

With so many voices attempting to attack the principle of freedom of speech and expression (which I'll just call "free speech" where convenient), surely it's time to organise more effectively in its defence.

Following the collapse of the legal case against Bill Henson over the past couple of days, we are already seeing well-funded lobby groups trying to get the law changed in New South Wales - they are seeking new statutory restrictions on artistic expression. Not too long ago, Victoria took the unnecessary step of introducing religious vilification legislation, with disastrous results, and other states are bound to follow. There are pressures of many kinds, throughout the Australian jurisdictions and elswhere in the Western world, to control what can be said and how it can be expressed.

One problem with organising for free speech is finding a rationale that everyone can accept. Even on this blog, we have seen different comments showing quite conflicting ideas of what free speech really is.

In part, the justification for free speech is the general libertarian (in the best sense) presumption against using the power of the state to stop individuals from living how they please and doing what they want. It relates to the general principle of liberal tolerance: in a liberal society the state will not (or should not) tell people how to live their lives or what the good may be. There are many views of the good, and a liberal society will tolerate all except those that are too intolerant to co-exist peacefully with the others.

However, a number of more specific justifications are commonly put forward for free speech, in particular - above and beyond ordinary freedoms in a liberal society.

In the past I've cited the judgment of Justice McLachlan in R v Keegstra, a 1990 Canadian Supreme Court case on hate propaganda, which provides an accessible and concise synopsis of some of the main benefits of free speech: (1) free speech promotes "the free flow of ideas essential to political democracy and democratic institutions" and limits the ability of the state to subvert other rights and freedoms; (2) it promotes a marketplace of ideas, which includes, but is not limited to, the search for truth; (3) it is intrinsically valuable as part of the self-actualisation of speakers and listeners; and (4) it is justified by the dangers for good government of allowing its suppression.

Each of these points can be elaborated, and some may need to be qualified. The first and fourth can be bracketed together as democratic justifications. They relate to aspects of free speech's political role in a liberal democracy. The third relates most closely to general libertarian values but stresses the particular importance of language, symbolism and representation for our lives and autonomy. It can be developed further by referring to the importance for individuals of communicating deeply held religious and similar beliefs and the value of creativity as expressed in literature, art and many other ways, including personal presentation or "style".

The issue here is how we should treat other individuals as moral and psychological beings. We might refer to this as the "moral" justification, if we want to distinguish between political principles, in a narrow sense, and principles that relate to our intuitions about how individual people should be treated for their own sake. Discussion of this point also highlights the fact that we are beings with psychological needs that involve self-expression and self-actualisation. With this in mind, and with some misgivings about the expression, I will refer to the "psychological" justification of free speech.

John Stuart Mill's classic defence of free speech, in On Liberty (1859), is actually phrased as a defence of "the Liberty of Thought and Discussion". One way of putting this point is that free speech of certain kinds is integral to rational inquiry. If we value this, we should also advocate the liberty to articulate potentially unpalatable ideas and unpopular social critiques. That, however, is quite a narrow concept compared with freedom of speech as commonly understood, which includes robust and even offensive kinds of interaction that would be strongly inhibited, if not actually forbidden, in, say, an academic seminar.

Mill's argument might be termed the rationalist justification. It is very powerful as far as it goes but inevitably somewhat elitist, since relatively little speech and expression in real-world societies appeals primarily to the intellect.

However, there are senses in which the rationalist justification can be extended beyond the speech of academics, scientists and other intellectuals. In one sense, it merges with the psychological justification, if it is interpreted as our individual need to pursue truth and understanding in our way own, necessarily reliant on resources available through language. In another sense, it encourages us to protect serious literature and art - especially narrative forms such as prose fiction, theatre and cinema - one function of which is to open minds by appeals to the imagination.

Mill also made the powerful point that is often forgotten (indeed, even I have been known to overlook it) that it is dangerous to let any view, however certain it appears, stand unchallenged. The one thing we must never do in this area is enshrine certain viewpoints in the law to the extent that arguing for a different viewpoint is suppressed. Ronald Dworkin has taken this a step further, in arguing that each of us should be allowed to live in ways that will tend to shape the moral ethos of our society - without the state saying that people with some ideas have a right to do so, and others don't. The boundary here must have something to do with direct harm, not harm merely from the fact that the ideas we express in our lives may become popular.

This analysis suggests a number of conclusions. First, there are powerful overlapping arguments for free speech as a basic political principle in any liberal democracy. Second, however, free speech is not a simple and absolute concept but a liberty that is justified by even deeper values. Third, the values implicit in the democratic, rationalist and psychological justifications for free speech will not apply equally strongly to all speech in all circumstances, and these "free speech values" may sometimes have little application at all. For example, they are not seriously at stake (or at least to the same extent) in arguments about purely commercial advertising.

However, if free speech is to be a political or constitutional principle that imposes practical restraints on the coercive power of the state, it needs to be formulated in a relatively simple and sweeping way. It cannot track the precise relevance of all the underlying values in every circumstance where speech might be suppressed. It follows that a constitutional restriction on state interference with free speech might give practical protection to some speech that has little to do with democratic, rationalist and psychological values. This creates a buffer zone around the more central areas where free speech values apply strongly, and that may well be desirable. In particular circumstances, other values might be more important than free speech but any exceptions to the principle must be defined carefully; otherwise, they will soon gobble up the rule.

That is a real danger at the moment.

I'm sure that some comments replying to this post will emphasise that free speech is not an absolute, so let me repeat that I understand this. Yes, there are many circumstances in which other important values need to be taken into account, and we must always be prepared to discuss those values on their merits. No value is absolute in the sense that it overrides all others in every conceivable situation. At the same time, the case for making an exception to the presumption of free speech often falls apart on closer inspection - as I believe it did when the Henson issue was considered closely.

It can never be guaranteed that free speech values will prevail over all other values in all possible cases - to think that would be to show a naive and indefensible kind of absolutism. But attacks on free speech should at least be subjected to severe scrutiny wherever and whenever they occur.

The piecemeal introduction of religious vilification laws and the possible tightening up of censorship restrictions relating to nudity and sexuality seem, at the moment, to be the greatest dangers to free speech. But many other issues arise from time to time, whenever somebody with a certain degree of political influence thinks that her particular issue is of overriding importance.

I hope that there is now a large and varied constituency of people who have been alerted to the dangers for free speech in Australia. I'm not sure how we can organise - and it's not really my talent - but some method of organisation must be found. I certainly don't trust the existing civil liberties bodies to do the job - we have no organisation in this country with the commitment, clout, and widespread support that the ACLU has, over in America. Indeed, civil liberties bodies sometimes seem all too willing to trade off freedom of speech - where was the outcry over religious vilification laws in Victoria? Where is the outcry as other states consider going in the same direction?

Something more has to be done - something much more - or a precious freedom will be increasingly endangered.

Thoughts on art and nudity

As of this morning, the case against acclaimed artistic photographer Bill Henson appears to have collapsed completely. A few days ago, the censored versions of the most controversial images, as published by news outlets, were given a G rating. The uncensored version of the most controversial image has now been rated a lowly PG. Australia's censorship authority, the Classification Board, has stated that the "image of breast nudity … creates a viewing impact that is mild and justified by context … and is not sexualised to any degree". As of this morning, there seems to be no prospect that the relevant authorities will view the images as pornographic or that any legal action will be taken against Henson or anyone else. The Australian justice system appears to be working well. [Edit: A bit later, it was confirmed that no charges would be laid.]

Assuming that there are no further dramatic twists, we can now reflect on the lessons to be learned from this debate, including the crude populist streak that has been revealed in a number of politicians, the cowardice of others, the prudishness and often sheer stupidity of many prominent commentators in the media, the Orwellian lengths to which others have been prepared to go to dream up some kind of plausible-sounding argument against Henson, the willingness of many to demonise the arts community for its supposed insensitivity and elitism, and so on. It hasn't been a pretty picture, and Australia has not been looking good - there's been all too much willingness to pander to the prudes and the merchants of moral panic.

One of the lessons is that many people are still unable to make even slightly nuanced judgments about images that involve nudity (another is that many people cannot make even slightly nuanced judgments about when it is, and when it is not, appropriate for the state to interfere on paternalistic grounds with family decisions, but perhaps enough has been said about that elsewhere, at least for now).

A few days ago, Guy Rundle - in a particularly wrong-headed piece in The Age - complained that Henson crossed a line, partly because nudity and "the power of photography" have deep-seated meanings. His piece doesn't tell us what those meanings are, but he claims, fatuously, that the images are "unmistakably sexualised". Well, the Classification Board obviously had a different view. The images at the centre of the storm are, no doubt, open to many interpretations, but one thing that they certainly are not is unmistakeably sexualised. Nor are they pornographic by any reasonable standard. They are not even provocatively erotic, which is not quite the same thing (difficult though it is to draw any principled distinction between "pornography" and "erotica").

The images do nothing - certainly nothing unmistakeable - to encourage the gaze of pedophiles or invite sexual arousal. At most, they suggest the sexual potential of the young people whom Henson has photographed, as they begin to metamorphose from childhood into the beginnings of adulthood. It's a vulnerable time, often misunderstood by the adult world, but with its own fleeting beauty (a beauty that most of us find unerotic, fortunately, but our opponents don't seem to be able to make the distinction between aesthetic beauty and sexual attraction). In an earlier version of this post - published as a comment on Alison Croggon's blog - I said that I'd be astounded if this adds up to the "sexual context" referred to in various legislative instruments that are meant to forbid child pornography. As of this morning, I'd have every reason to be even more astounded (when I wrote the original comment I hadn't caught up with the very latest news that the controversial image of the young teenage girl had been given a PG rating).

It distresses me that so many participants in the current debate seem to think that nudity, in art or elsewhere, means one thing and one thing only: sex ... literal, unqualified sex. Not that I'm against sex. Quite the opposite. The point is, I'm against tunnel vision. It also disturbs me that anything even remotely associated with sex, or sexuality, or sexual potential, or perceived as having such an association, is automatically viewed as somehow shameful and (at the same time) dangerous. We need to grow up as a society and take a much more informed and worldly view of these things. If we look around us, we'll see that our forebears adopted varied, and sometimes even contradictory, attitudes to sexuality, nudity, and the body, and maybe we can remind ourselves that all of this is our cultural heritage — and legitimate subject matter for artists of all kinds.

Christianity has been one (rather dull and miserable) thread through the history of Western civilisation, and it has tended to consider the body to be shameful, and insist that it be hidden. But that nasty manner of thinking about our physical selves needn't control our thoughts any longer. In many ways, modern Australia is a post-Christian society, and that's entirely a good thing. We don't need to look at all the amazing phenomena of the world around us through the lenses and filters offered by Abrahamic religion. We can open our eyes to view its splendour (and misery), well, naked.

In any event, those of us who live in countries like Australia (or the US, or the UK, and wherever else readers of this blog are most likely to come from) have the benefit of living in modern, pluralistic societies where no one cultural interpretation of the body (or anything else) is privileged over all the others. All must take their chances, and none merits endorsement by the state.

I said that our forebears had many complex, even contradictory, attitudes to nudity (and sex and the body). Here are just a few examples to think about:

* The stripping or revealing of the naked body when questions arise about what it is to be human - think of maddened King Lear, driven to despair by his ingrate daughters and exiled into the storm. (I can't help but think of Sir Ian McKellen's electrifying performance in the lead role when King Lear played recently in Melbourne.)

* Ideas of baptismal rebirth or the return to an Edenic or Arcadian state.

* Sexuality that is merely potential, not yet come to ripeness.

* The rejection of monogamy, prudery, and convention. A kind of wildness that defies society.

* The worlds of faeries and pagan gods: beings that far transcend the need for clothing to protect them from the world.

* Vulnerability. Not much more need be said about this; clothing can be a protection against the world, and the portrayal of nudity can represent various kinds of vulnerability. Notice, though, the word "represent". It does not follow that people who model nude of their own free will are vulnerable in ways that require the state to step in and protect them on paternalistic grounds. To conflate the two ideas is a form of magical thinking.

* Invulnerability (think of the gods and faeries again — they don't need clothes to survive, not like us; their bodies are at home in the cosmos in a way that ours can seldom or ever achieve).

* Lush exoticism with all its problems (sometimes a disturbing soft racism can be found in the domain that I'm trying to suggest here, in such works as Rider Haggard's nineteenth-century novels and their many imitators; still, the exoticism is sometimes quite innocent).

* The glorious muscular power displayed by strong unclothed bodies, male or female.

* Beyond this, the spectacle of super bodies in comics ... or in movies that use stunningly "built" actors such Arnold Schwarzenegger.

* And beyond this again, the suggestion of a different kind of power when humanlike aliens or monsters appear naked - simultaneously glorious and dangerous, perhaps both more and less than human.

* And finally, for now, moral decadence (yes, there's no doubt that that can sometimes be a connotation of the nude body, based upon the long cultural association of the body and its erotic capacity as shameful - but this goes along with all the other meanings that I've mentioned, and more).

For the past three millennia of Western civilisation, the body has often been despised; equally often, perhaps, it has been loved and glorified. At other times, it has been scrutinized intellectually or aesthetically, and yes, of course it can be utilised for erotic display. None of these ideas — or any combination — exhausts the potential of the subject matter. The nude human body has endless connotations that have been explored by many artists in many forms and media over the centuries since civilisation itself was in its cradle.

It would take a crude sensibility to reduce its depiction by a skilled visual artist such as Bill Henson to some kind of shameful voyeurism (and yet, much of the debate in the blogosphere consists of fools equating Henson's work with pedophilia, some even engaging in disturbing fantasies about how Henson must relate to his models).

Henson is surely well aware of the rich cultural tradition that I've been describing, probably more aware of it than any of us. However, his detractors don't seem to understand it one bit. Much of what I've been reading over the past couple of weeks is thought without rigour or nuance. Some of it scarcely deserves to be regarded as thought. Much of what has been written in the blogosphere has been no more than childish posturing (the commentators showing less maturity than Henson's much-condescended-to youthful models). Maybe I'm an elitist, but if it's elitist to make an effort at analytical rigour and sensitivity to nuance, then I call elitism "good". I'll go and join the carnival of elitists and be proud.

A small victory for freedom of speech

Expelled is a creationist propaganda film starring Ben Stein. Its main claim is that various academics have been "expelled" from the academy for challenging Darwinian evolutionary theory. However, once examined in detail, this turns out to be a farrago of lies and distortions as I've discussed previously. That, however, does NOT mean that its makers must be wrong on every single controversial issue.

One ongoing issue relates to the movie's use of an excerpt from the John Lennon song "Imagine", apparently in a bitterly ironic way. The song was used without permission, and thus (prima facie) is in breach of copyright. As the movie plays the famous lines in which we're invited to imagine "Nothing to kill or die for/And no religion too", we are shown images relating to totalitarian communist regimes, culminating in a close-up of Stalin.

The clear effect of the juxtaposition is to attack the song's philosophical and emotional message. While the precise nature of the attack is open to interpretation, one way to take it is that a world without religion would be horrific. This is consonant with the movie's generally pro-religious message and its linking of Darwinian theory with atheism. (The makers have also argued that the excerpt has been used in such a way as to make the point that opposition to religion is not a new phenomenon.)

Should this use of "Imagine", without permission from the parties who hold copyright in its words and music, be allowed by law? Over the past couple of months, I've consistently argued "yes".

To recap the argument, intellectual property law (including copyright law) exists to encourage the creation of valuable cultural products that, by their very nature, are not scarce and so cannot readily be taken from, or kept from, the commons and turned into property. Items of intellectual property are non-rivalrous because they essentially consist of information. Information can be replicated endlessly (in contrast to, say, a particular hamburger or a particular block of land or a particular, physical CD that your lover gave you for your birthday - all of which are genuinely scarce resources). It is socially important to create a kind of property in the information that cultural products such as songs and recordings ultimately consist in, but it takes a legislative scheme to accomplish that.

However, it is also socially important that items of intellectual property be open to criticism relating to their aesthetic form or to their explicit or implicit ideas. Public policy needs to strike a balance between (1) offering the creators of intellectual property a means of obtaining income from it, thus encouraging the creation of valuable works, and (2) allowing criticism and comment that relates to these works once they are created. Copyright law should not work in such a way as to suppress criticism, which would be contrary to its entire purpose.

Putting it simply, we want to encourage people to create valuable cultural products, such as songs, but we do not want to stop others from criticising those products once made. If somebody wishes to criticise a song such as "Imagine" - or some aspect of it or its message - they should be free to do so (and should not be told how; e.g. they should not be confined to abstract discussions in expository prose but, within reason, they should be able to make the point in their own way).

In this case, "Imagine" was not being played for its entertainment value or as an ornament to, say, product advertising. It was not an attempt to usurp the market for the song while getting away without paying.

Rather, an excerpt was selected to make a point: to juxtapose it with certain images in order to attack on the song and what it stands for. Arguably, no more of the song was played than was needed to make the point, so this was not a mere contrivance for what was, in reality, a use of the song in its "normal" way, i.e. its entertainment value. Nor was it a case of co-opting the song for a strictly commercial use such as trying to sell running shoes. Rather, a comment was being made on issues of public interest, such as atheism and secularism. From first principles, such use should be allowed by the law (irrespective of whether the entertainment industry would normally adopt the cautious practice of attempting to get permission even in a case like this).

I've been cautious about whether this kind of argument actually would prevail in the courts, because I'm not familiar with how the relevant case law has developed to this point, but the in-principle argument, based on the underlying policies reflected in the law, always seemed to me to be extremely powerful. I was pretty convinced that there was a reasonable legal argument available that what was done by the moviemakers fell under the doctrine of fair use.

John Lennon's widow, Yoko Ono, and children (the plaintiffs) recently sought to stop the use of "Imagine" in Expelled, arguing that it breached their copyright in the song and its lyrics.

In a judgment issued a few days ago, the judge hearing the case denied the motion by the plaintiffs for an injunction to stop further distribution of Expelled, and to recall existing copies, pending trial. The judge held that the plaintiffs had failed to meet the appropriate test of showing a clear likelihood of success on the merits of the case at trial; on the contrary, the defendants (Premise Media and Rocky Mountain Pictures, the makers of Expelled), were likely to succeed on the basis of their defence of fair use.

Note that this is only a preliminary decision. It is still possible that Yono Ono and the other plaintiffs could succeed in the full trial or on appeal. For the moment, though, the outcome is a victory for freedom of speech. If the reasoning stands the test of time, it will expand the legal entitlement to make legitimate use of copyrighted materials for criticism or commentary.

I'm not especially pleased that the outcome to this point in this particular case has favoured the makers of Expelled, a movie whose message I oppose and even despise. However, freedom of speech should apply to our opponents as well as our friends and allies; if we don't accept that, we don't really support the concept. This small victory for freedom of speech is welcome, and I look forward to seeing the final outcome of the litigation.

Killing the Rabbit

In between my usual activities of defending human liberty and taking swipes at sanctimony and godliness, I managed to put aside some time last week to read Killing the Rabbit (Bantam 2007), a wonderful crime thriller by (my dear friend) Alison Goodman. Rather than dropping spoilers, I'll just say that you ought to kill whatever large or small mammal you need to in order to read Alison's book. As she knows, I'm awed by her. In particular, the depth of her research is enormously impressive: for those who know the intellectually fierce, but basically rather gentle, Alison, it's amazing how much information she's been able to master about guns, the workings of gangland, how to talk to the Yakuza, carry out a "hit" with a long-range rifle, use a knife or a garrotte, etc. All this is woven in seamlessly. Alison has a huge talent, and as more of her work keeps coming out she's going to end up being a famous, celebrated author.

It's not just about Henson

As the debate about Bill Henson's nude portraits of young teenagers drags on, we need to worry about the immediate threat to Henson's liberty, and his good reputation as one of our fellow citizens, but also about general policy issues and about how the debate would have gone if it had been someone less famous.

At least in the media, Henson is being accused of serious crimes - which must itself be traumatic - and his freedom is at stake, as is his good name as a fellow citizen. He could end up being stigmatised as something akin to a creator of child pornography. But there are also issues of principle here, together with legitimate concerns about the direction of public policy and the development of our general social environment, here in Australia.

Let's keep this idea somewhere at the front of our thinking: in a modern pluralist society (or a liberal society, as I like to say) many people will have different responses to Henson's work, and many parents will have different views as to whether they would be happy permitting their children to take part as models in the way that's currently under discussion. The key thing about a liberal society is that it permits such differences and counts a wide range of different critical responses - and a wide range of different uses of parental discretion - as being "reasonable" for the purposes of the law.

The ethico-legal principles of a liberal society require that the coercive power of the state be exercised with great reluctance, and if it is going to be exercised at all then countervailing values, such as artistic expression, must be taken into account. Accordingly, it is relevant that what we're dealing with is, irrespective of all the differing judgments about its meaning or value, work that: (1) is genuine individual expression, and not something prepared for an overwhelmingly commercial purpose such as product advertising; and (2) of a certain level of artistic quality.

Even if some well-informed people have adverse critical responses to Henson's portraits, we ought to be defending the artist's right to create them and also the rights of the young models to take decisions, in consultation with their parents, to participate. This is not the sort of situation where the clumsy machinery of the criminal law should be involved, and it's incredibly dangerous for art and expression if, as a society, we are too quick to wheel out that machinery to settle cultural disagreements.

Perhaps a bit more needs to be said about this. I doubt that anyone who is defending Henson is unaware that paternalism has more role to play when we're dealing with younger people than when we're dealing with competent, consenting adults. But where does that get us?

In discussing the issue on her blog, Alison Croggon has made an important point, which I'm happy to adopt, though it has more weight coming from her than from me, since she is actually a parent of teenagers. Like Croggon, though, if I were the parent of one of the young people who are at the centre of the controversy I'd want them to talk it over with me first before they decided to be photographed nude, and I'd want to know quite a bit of detail. I'd reserve my right to veto their plans. That's what parents are for, the way this society works.

But I also agree with Croggon about the following: if they were smart young people who knew their own minds, I'd happily let them pose for any of the portraits that I've seen, in the circumstances I've seen described by people who are familiar with Henson's work methods. In fact, I'd be proud of them for doing so. I certainly wouldn't want the law coming in to overrule my judgment - implying that I was, in effect, an abusive, or at least unreasonable, parent for not stopping them. My concern would be to be careful and protective, but also supportive of my child's values and projects as far as possible.

Many people tend to think that every social issue must be resolved by having a law about it, at least if there's something like nudity involved, or anything that can be construed (by prurient minds) as "sexual". The extreme paternalism about nudity, as opposed to all the other decisions of consequence that are made by many people, including young teenagers, suggests to me that the human body is still, at some level, widely seen as problematic; there's a prudishness and shame about the body lying behind this debate. It goes back to St Augustine, at least ... and beyond to St Paul and even Plato.

Interestingly, we seem (as a society) to be much less keen to prevent teenagers or children making other kinds of decisions. We let them poison their minds with, say, fundamentalist religion - though the effects on their flourishing can be much worse (leading, them, perhaps, to live an entire life based on the ridiculous lie that our planet is only 6000 years old). In fact, we let parents do all sorts of things - and acquiesce in all sorts of initiatives from their children - that I consider far less reasonable than what was agreed to by parents who let their children be photographed by Bill Henson.

Of course, the positive experience of posing for Henson has now been poisoned. Now I'd be much less inclined to let my hypothetical teenage child take part. Again, I'm going to explain this by adopting a point that Croggon has made: I don't think it would have been psychologically harmful in the normal course of events, but now that the prudes and panic-mongers have made such a big issue of it, it might well be. I would be loath to let my child put herself (or himself) at the risk of having her image described as "revolting" by the prime minister, and of being the subject of endless discussion in the mass media in the way that has happened. With regret, I'd probably now veto participation in Henson's photography sessions. The prudes and panic-merchants have managed to do that much damage already, whether or not Henson is ever charged or convicted.

I'm not saying that the state should never have the last say where parents and their children are in agreement. Take two cases at opposite ends of the spectrum. It's clearly fine if a parent lets her teenage girl go topless on Bondi Beach (if the girl wishes). No one in their right mind would want a law about something as harmless as that. But maybe it's not fine for a parent to let a young teenage girl dance topless at a strip club - where she is going to be confronted with quite different dangers.

It may not be possible to draw lines that are absolutely defensible with no
exceptions, but there really are reasons, it seems to me, why it would usually be reasonable for a parent to go along with her teenager being photographed by Bill Henson in the ways we've seen, but not so reasonable for a parent to go along with her teenage girl posing for intra-uterine shots in Penthouse. A lot of this, unfortunately, involves subtleties such as taste and context, but those subtleties do matter - and some of it isn't all that subtle.

There are, then, issues of paternalistic concern for young people, though I hasten to add that there are also legitimate concerns about the ongoing infantilisation and disempowerment of young people by our social institutions (something that has become a serious problem for modern societies, which are plagued by the consequences of having created an adolescent maturity gap).

We must not forget that there are also genuine issues here to do with freedom of artistic expression. While it's correct to focus on the proper role in the criminal law for an element of state paternalism, we mustn't forget the ugly fact that, within some sections of the Australian community, there's widespread distrust - sometimes verging on contempt or hatred - of artists and intellectuals. Politicians are usually wise enough not to whistle this out of its kennel as a populist electoral tactic. However, it's the sort of vulgar populism that they've descended to in the current debate, and I think we have good reason to be fearful about where it will lead them now they've started. Not to mention where it will lead Australian society (this is not a crude slippery slope argument - there are genuinely nasty outcomes that could occur, and there are genuinely temptations for politicians to go down a populist road that leads to a certain amount of repression).

Artists and intellectuals need a wide margin in which to operate without having to fear criminal punishment and stigma. Like Henson and his work or not, it seems clear to me that he operated well within that margin - indeed, with great care and sensitivity, by all accounts. But serious efforts are now being made to narrow the margin, and I don't expect those efforts to cease any time soon.

Right now, the priority lies in defending Henson's liberty.

However, it would be just as important to defend an unknown artist, as discussed over here. If it had been someone less celebrated, we might not be able to confront politicians with the same prudential arguments ("think of Australia's international cultural reputation"), but I don't think we should eschew those arguments in the present urgent situation. When dealing with governments on policy issues, it's unwise to throw away whatever bargaining power you happen to have. But it would, nonetheless, be equally important to defend an unknown artist's liberty, reputation, and freedom of expression, as it is to defend Henson's.

The main difference is that with Henson we don't have to start from scratch: his fame and success don't give him any more right to be defended, but they do assist in putting the defence together. They provide some quick and compelling evidence of the fact that his work is of artistic seriousness and value ... and that fact is definitely relevant to public policy and to how his work should be regarded by the law.