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

Tue Oct 13 12:39:09 PDT 2009

This is very interesting and, having devoted a least 5 minutes of solid 
reflection to the question, I would suggest that we need to separate two 
questions. 1)To what activity does the first amendment apply? and 2) What 
activity does the first amendment protect (or end up protecting)? I 
understood Mark's question to go to the first question. Even unambiguous 
expression (the sailing schedules of warships) may end up failing to 
attract first amendment protection. But what kinds of activities don't 
even raise a constitutional question. Most instances of speeding don't. 
Most instances of ticket scalping don't. I can't help but think this has 
to turn on the purposes of the speaker/actor. The ticket scalper who is 
protesting the oppressive practices of Ticketmaster states a different 
claim than the usual guys on Brookline St holding up Red Sox tickets. As 
to the art, I'd venture that the claim of first amendment applicability 
has to involve an argument that it involves the communication of an 
"idea."  Of course, I pass on the difficult questions of mixed or 
predominant motive -- as just haggling over the details.

Rick

Richard S.Kay 
Wallace Stevens Professor of Law 
University of Connecticut
School of Law
65 Elizabeth St
Hartford, CT 06105
USA

Tel  (860) 570-5262
Fax (860) 570-5242

Please address all future mail to richard.kay at law.uconn.edu

Josh Chafetz <josh-chafetz at lawschool.cornell.edu> 
Sent by: conlawprof-bounces at lists.ucla.edu
10/13/2009 03:21 PM

To
"Conlawprof at lists.ucla.edu" <Conlawprof at lists.ucla.edu>
cc

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

On your second point, it seems to me that the answer goes something like 
this:  Once we’ve decided that the First Amendment’s Speech and Press 
Clauses are broader than a hyper-literalist would take them to be (i.e., 
once we’ve decided that they cover things, like handwritten letters and 
websites, that are neither spoken aloud nor produced on a printing press), 
then we need some sort of principle to tell us how much broader the 
Clauses actually are.  We seem to have settled around a purposivist 
noscitur a sociis-esque principle that we protect speech and printing 
presses because they are principally used to express ideas; therefore, we 
also protect other things that are also principally used to express ideas. 
 This would include letters and websites and paintings and site-specific 
sculptures, I presume.

Would it also include ticket scalping?  I don’t really understand your 
claim that, “ticket-scalping just doesn’t involve expressive activity 
(even if the scalper intends to make a political statement by scalping 
tickets).”  If the scalper intends a political statement and if some 
observers might understand the act as a political statement, then what 
does it mean to say that it doesn’t involve expressive activity?  I would 
think that the better answer is that scalping, like murder, is banned 
despite its expressive content, rather than because of it, and that’s what 
makes anti-scalping laws – like homicide laws – okay, so long as they are 
content- and viewpoint-neutral.  (Surely, a law banning only “the scalping 
of tickets to hear liberals give political speeches” would not be okay.)

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

From: Mark Tushnet [mailto:mtushnet at law.harvard.edu] 
Sent: Tuesday, October 13, 2009 2:49 PM
To: Josh Chafetz; Conlawprof at lists.ucla.edu
Subject: RE: (Why) Is non-representational art protected by the 1st 
Amendment?

I’ve regularly been puzzled by the “ticket-scalping laws are content & 
viewpoint neutral” answer because it seems too complicated; I think the 
more natural explanation is that ticket-scalping just doesn’t involve 
expressive activity (even if the scalper intends to make a political 
statement by scalping tickets) and so the First Amendment simply doesn’t 
come into play (rather than, the First Amendment’s standards are 
satisfied).

And I take the originals/images point, although the results don’t seem so 
bizarre to me.  But, that aside, what about site-specific sculptures (I 
use Jeff Koons’s Puppy outside the Guggenheim Bilbao as my example) and 
musical performances (the performances themselves, not the transcriptions 
of the notes on the pages in front of the performers)? 

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 2:39 PM
To: Mark Tushnet; Conlawprof at lists.ucla.edu
Subject: RE: (Why) Is non-representational art protected by the 1st 
Amendment?

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

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