(Why) Is non-representational art protected by the 1st Amendment?
hamilton02 at aol.com
hamilton02 at aol.com
Tue Oct 13 12:49:00 PDT 2009
Okay, so the performance piece engaging in the illegal activity is art that would be protected by the First Amendment. Why is that problematic?
Certainly not because it is automatically permissible, right? Just because the First Amendment enters the picture does not mean that the art
cannot be suppressed. Quite to the contrary, along the lines of Josh's post suggesting that protected and nonprotected speech categories don't make a whole lot of sense in the first place.
How better to destabilize expectations about the post-New Deal state than by doing a performance art piece consisting of violating the regulations?
From: Mark Tushnet <mtushnet at law.harvard.edu>
To: hamilton02 at aol.com; Mark.Scarberry at pepperdine.edu; Conlawprof at lists.ucla.edu
Sent: Tue, Oct 13, 2009 3:39 pm
Subject: RE: (Why) Is non-representational art protected by the 1st Amendment?
Both of Marci Hamilton’s posts seem to me to run up against the ticket-scalping problem (or if you don’t like that as the problem example, fill in some other regulated activity as to which libertarians might find regulation unjustified). How better to destabilize expectations about the post-New Deal state than by doing a performance art piece consisting of violating the regulations?
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)
wprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of hamilton02 at aol.com
Sent: Tuesday, October 13, 2009 3:29 PM
To: Mark.Scarberry at pepperdine.edu; Conlawprof at lists.ucla.edu
Subject: Re: (Why) Is non-representational art protected by the 1st Amendment?
One does not need emanations and penumbras to protect nonrepresentational art. All art, whether written or visual, contributes to a more reticulated discourse for the marketplace of ideas, with art typically functioning to destabilize or enrich settled expectations and understandings. Images often do a better job of that than do words, though there are plenty of written works that challenge settled understandings. (This was the theory I set forth in Art Speech in Vanderbilt Law Review in 1996.)
Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
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