(Why) Is non-representational art protected by the 1st Amendment?

[Josh Chafetz]

Ah, I see.  I thought you were asking why the First Amendment protects non-representational art as opposed to representational art.  But now I see that you're asking the bigger question of why the First Amendment protects images at all.

In claiming that Borges is "within the plain meaning of the First Amendment's words," I take it that you mean that his stories are printed on a printing press and therefore fall under "the freedom ... of the press."  Which, of course, means that his hand-written originals would not be "within the plain meaning of the First Amendment's words."  Likewise, Pollock's paintings do not fall within the plain meaning of the First Amendment's words, but mechanical reproductions of them presumably do.  (After all, at least since Franklin's 1754 "Join, or Die" cartoon, the American press has been used to propagate images, as well as words.)

I take it that we protect originals, as well as mechanical reproductions, of both words and images because the alternative just seems too bizarre.

I don't really have a view about ticket scalping, because, to be honest, I don't really understand what harms anti-scalping laws are meant to prevent.  But assuming you see resale of tickets to be harmful in some way, then I take it that anti-scalping laws are okay for the same reason homicide laws are okay.  Although both scalping and murder may have expressive content, they are not primarily expressive, and the laws banning them do not discriminate among scalpings or homicides based on the message intended.

Cheers,
Josh
----------------------------
Josh Chafetz
Assistant Professor of Law
Cornell Law School
208 Myron Taylor Hall
Ithaca, NY  14853
607-255-1698
josh-chafetz at lawschool.cornell.edu<mailto:josh-chafetz at lawschool.cornell.edu>

________________________________
From: Mark Tushnet [mailto:mtushnet at law.harvard.edu]
Sent: Tuesday, October 13, 2009 2:24 PM
To: Josh Chafetz; Conlawprof at lists.ucla.edu
Subject: RE: (Why) Is non-representational art protected by the 1st Amendment?

My difficulties or responses or something are:  (1)  It's not clear to me why the "art of freedom" rationale wouldn't extend to ticket-scalping as well.  Which suggests that what's going to do a fair amount of the work is in the other part of the answer, and I'm not sure what's in that part.  (2)  Borges yes because within the plain meaning of the First Amendment's words; Pollock not so clear.  (Another version of this is photography, even news photography - the protester in front of the tanks in Tiananmen Square, the Vietnamese being shot with a pistol.  Here too the justifications that come to mind seem to me to extend to ticket-scalping.)

Mark Tushnet
William Nelson Cromwell Professor of Law
223 Areeda Hall
Harvard Law School
Cambridge, MA  02138
ph:  617-496-4451 (office); 202-374-9571 (mobile); 617-496-4866 (fax)
________________________________
From: Josh Chafetz [mailto:josh-chafetz at lawschool.cornell.edu]
Sent: Tuesday, October 13, 2009 2:05 PM
To: Mark Tushnet; Conlawprof at lists.ucla.edu
Subject: RE: (Why) Is non-representational art protected by the 1st Amendment?

I would think that at least part of the answer is that non-representational art can still convey a message.  If I'm not mistaken, the US Government funded exhibitions of Jackson Pollock's work to demonstrate how the "art of freedom" contrasted favorably with Soviet realism.

More broadly, the written texts the First Amendment protects are not just those texts that describe reality.  We also protect those texts that describe unreality and those that present abstract ideas.  Why should we treat non-written texts any differently?  That is, on what grounds could you protect, say, the short stories of Borges but not the paintings of Pollock?

Cheers,
Josh

----------------------------
Josh Chafetz
Assistant Professor of Law
Cornell Law School
208 Myron Taylor Hall
Ithaca, NY  14853
607-255-1698
josh-chafetz at lawschool.cornell.edu<mailto:josh-chafetz at lawschool.cornell.edu>

________________________________
From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Mark Tushnet
Sent: Tuesday, October 13, 2009 1:46 PM
To: Conlawprof at lists.ucla.edu
Subject: (Why) Is non-representational art protected by the 1st Amendment?

Hurley, by Justice Souter, says it is, but without, as I recall, giving much in the way of reasoning.  Any thoughts?  (Retrieving from memory an exam question Bickel and Bork asked, the answer has to explain why non-representational art is protected by the First Amendment and ticket scalping isn't.)

Mark Tushnet
William Nelson Cromwell Professor of Law
223 Areeda Hall
Harvard Law School
Cambridge, MA  02138
ph:  617-496-4451 (office); 202-374-9571 (mobile); 617-496-4866 (fax)

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