Should the theaters which dare to represent a work in which a character smokes dress the actors in clothes bearing the mention “This is not a cigarette”? We owe to René Magritte this famous painting illustrating a pipe under which it is inscribed “this is not a pipe”. This work is often cited to recall the distinctions between the object and its representation. To erase the differences between representations of reality and reality is to endanger several creative activities.
The difficulty that we experience in certain circles in separating fiction from what is real was recently highlighted in the decision of a court which applies to a theatrical performance a municipal by-law prohibiting the act of smoking in the premises. public. The judge justified his decision by stating that the fact of smoking a fake cigarette as part of a performance of a dramatic work is not an expressive activity within the meaning of the law.
The astonishment of many upon reading this decision is due to the fact that the Supreme Court of Canada has long ruled that expressive activity protected by the charters of rights includes any gesture intended to convey meaning, with the exception of violence. The Court thus explained that activities such as music, dance, posters, physical movements, marches with banners, commercial advertising, posters on public service poles, picketing, distribution of leaflets, communication for prostitution purposes, noise from a loudspeaker outside a club and overlooking the street, voting, running for office, campaign expenses or referendaries, work for a political party or a candidate are all situations that constitute a priori expressive activity.
It is to be hoped that an appellate court would recognize that the performance in a dramatic fictional setting of a gesture such as smoking is intrinsically an expressive activity. Secondly, it will be necessary to assess the reasonableness of a measure extending the prohibition of the act of smoking to fictional representations of this behavior.
When we begin to apply the laws to fictional situations as if they were part of reality, we erase the distinctions between real situations and representations staged by a creator. We forget that the representation is not the real, but a discourse mobilizing the verbal or pictorial language to reflect on the real.
The miseries of fiction
This tendency to deny what is at the very essence of artistic expression leads to it in many circles.
Two years ago, the author of a horror novel was accused of posting child pornography. Passages from the novel recounted the odious nature of situations of abuse by a monstrous character. A few years ago, he was a special effects designer who was accused of producing obscene material. Recently, the comedian Mike Ward who played the role of a quidam worried about the “sacred cows” of our society had to defend himself from having committed discrimination by performing a monologue in which he made fun of a disabled child who has become a public figure. In all of these situations, it was the appellate courts that were able to sort things out. They have come to recognize the need to distinguish between reality and the representations made of it in the context of creative services. What worries is that it is necessary to go so far as to appeal for recognition of what one might believe to be obvious.
Some argue that just because it is not “true” does not mean that it is unlikely to have harmful consequences. It is undeniable that certain representations of reality can engender consequences. Representing an activity can inspire those who watch and listen to practice it. Representing a gesture that is notoriously dangerous or harmful for certain people can help to trivialize it, or even to legitimize it. It is at this level that the considerations that may justify limiting the representation of certain gestures can and must be examined. Not by denying an artistic performance its status as an expressive activity. Not by confusing fiction and reality.
For example, the depiction of sexual activities with people under the age of 18 was considered likely to engender, legitimize or justify actual behavior. The undue exploitation of violence is also recognized by obscenity laws as having the potential to induce harmful behavior. Likewise, representing a reality with the intention of deceiving, misleading is considered abusive behavior punishable by law.
But it is still necessary that the abusive character is evaluated and that the prohibitions to represent a prohibited behavior are marked out by rational and proportionate limits.
The representations of behavior that we find in works of fiction aim to make people understand, to explain, to make people feel. Certainly, when fiction is used as a screen to celebrate or encourage abusive behavior, it can be assimilated to incitement. But it would not occur to you to accuse an actor of assault who plays an assault scene as part of a dramatic work.
Applying a law which prohibits smoking in a public place to the representation of the gesture within the framework of a fiction, is to ignore that the cigarette that the actor smokes is not a real one. It is to the artist exercising his art that we must attribute this ability to convince us that it is as if he was smoking a real one! We thought it was obvious, we have to change our minds …