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

[Bezanson, Randall P]

The artist is JSG Boggs, one of the world's foremost currency artists -- or at lest he was until he landed in jail for, guess what, counterfeiting.  The feds have been engaged in a long-running "legal" harassment effort against him.  Not to plug shamelessly again, but I have a chapter focused on him in the book (Art and Freedom of Speech, 2009).  He has a pretty interesting story, worth reading.

Randy Bezanson
David H Vernon Professor
Univ. of Iowa
________________________________
From: conlawprof-bounces at lists.ucla.edu [conlawprof-bounces at lists.ucla.edu] On Behalf Of Miller, Darrell (mille2di) [mille2di at ucmail.uc.edu]
Sent: Tuesday, October 13, 2009 2:59 PM
To: 'Mark Tushnet'; hamilton02 at aol.com; Mark.Scarberry at pepperdine.edu; Conlawprof at lists.ucla.edu
Subject: RE: (Why) Is non-representational art protected by the 1st Amendment?

You don’t have to pose the hypothetical.  I seem to recall an artist who draws almost 100% accurate copies of paper money by hand and his “art” is seeing whether a person will give him goods or services (a hot-dog, a t-shirt, etc.) in exchange for the replica.





From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Mark Tushnet
Sent: Tuesday, October 13, 2009 3:40 PM
To: hamilton02 at aol.com; Mark.Scarberry at pepperdine.edu; Conlawprof at lists.ucla.edu
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?

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: conlawprof-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


Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law

Yeshiva University











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