Art and the Constitution

Author:Randall P. Bezanson
Position::David H. Vernon Professor of Law, The University of Iowa College of Law

I. Introduction II. The Nature of Art III. Why Should Art Be Protected? IV. Interpreting the First Amendment to Protect Art V. Conclusion

David H. Vernon Professor of Law, The University of Iowa College of Law. I presented this Article as the 2008 Presidential Lecture at The University of Iowa on February 24, 2008. It is drawn from my forthcoming book, Art and Freedom of Speech (forthcoming 2009).

I. Introduction

The First Amendment has been with us for 217 years. Over that long history there have been surprisingly few Supreme Court cases involving art- hardly more than a handful-and even fewer that are illuminating. When forced to address the status of art under the Constitution, the Supreme Court has simply said "of course' and "surely" the free-speech guarantee of the First Amendment protects art.1 But as I tell my students in constitutional law, when the Supreme Court explains itself by saying "of course" and "surely," it is a safe bet that the Justices do not really know what they are talking about. This is the case with art. The Court does not tell us what art is, why it is protected, or how the free-speech guarantee can be read to include it.

It turns out that the question of art and free speech is a very difficult one, and this is the reason that art has had a troubled relationship with the First Amendment. The law of obscenity, for example, protects only "serious" art (whatever the Court means by that). But what about happy art? or humorous art? or avocational, rather than professional, art?

Congress requires the National Endowment for the Arts ("NEA") to limit its funding only to those artistic works that are "decent" and respect American values. This definition does not include Karen Finley's "art" shown below.

Photograph of Karen Finley, by Timothy Greenfield-Sanders. Sanders took this photograph in connection with Karen Finley's performance piece Return of the Chocolate-Smeared Woman.

(Photograph in Pdf File)

Is Finley's art decent? Does it respect the diversity of American values? These are questions that the First Amendment usually forbids a legislature or court to even ask. In reality though, these questions have been asked and, as you may know, answered: The Chair and Council of the NEA judged Karen Finley's art as indecent and, thus, it cannot qualify for NEA grants.2

Given this background, why and how should the Constitution protect art? In answering these questions, I must begin with a general but fundamental distinction. There are, I suggest, two types of art. The first type I will call propositional art. This is art that itself makes a cognitive statement or argument by the artist to an audience. Such art may simply represent an object or it may serve as an emotive augmentation of a proposition. Whatever form it takes, such art operates in a linear fashion: It contains a coherent message intended by the artist and understood by the audience. For example, a cartoon of Muhammad wearing a bomb for a hat contains a clear proposition: Islam is violent.3 Although propositional representations are often thought of as art, they nevertheless present little difficulty under the First Amendment. They are clearly "speech" in the sense that they communicate intended messages or meanings to audiences and thus the Constitution should protect them as free speech.

The second type of art, and the primary focus of this Article, is nonpropositional art. Nonpropositional art conveys no single message and those viewing the art usually will not understand it as doing so (and should not understand it as doing so). Nonpropositional art functions at the sensual and cognitive levels, spurring imagination and re-representation of the presented object or musical score and yielding a message or meaning that is the creation not of the artist's propositional intention, but of the viewer's independent construction. We might place Pollock's Mural in this category. Meaning arises for the viewer from the aesthetic or emotional qualities of the painting, which evoke imagination and re-representation.

Jackson Pollock, Mural (1943), Gift of Peggy Guggenheim, The university of Iowa Museum of Art, Iowa City, Iowa, 1959.6.

(Photograph in Pdf File)

It is this nonpropositional form of art that is more difficult to categorize as material that is protected under the free-speech guarantee, for it does not fit into the propositional model that characterizes "speech" as the Supreme Court has used the term. Indeed, it is nonpropositional art that most accounts for the Supreme Court's reluctance to bring art into the First Amendment.

In challenging the Court's reluctance today, I offer three conclusions. The first is that art-nonpropositional art-should be protected by the First Amendment because of its link to individual imagination and creativity. The second conclusion is that the First Amendment should protect nonpropositional art as art, not as speech. That means that if and when it can be practically identified in law, art's protection should be nearly absolute. My third conclusion is that the Supreme Court can interpret the free-speech guarantee to protect art. I should add that I purposefully omit a fourth conclusion, which involves how the law can practically define nonpropositional art. For that you will have to read my book.

I will proceed in three steps. First, what is the nature of art? Second, what protection should it receive and why? Finally, how can the Supreme Court interpret the free-speech guarantee to include art?

II. The Nature of Art

Aesthetic art is a form of artistic expression that is visually sensual in nature and that evokes new meaning through acts of imagination and re-representation that are supplied by those who witness it. As Karol Berger puts it in his wonderful book, A Theory of Art:

[E]ver since Plato philosophers have been much exercised by the question of what art is, . . . of getting art's ontological status right, of finding a way to distinguish art from other entities. . . . [But] even if we grant this [defined] object the status of art, we still do not know whether and why we should bother ourselves with it.4

We should bother ourselves, Berger suggests,

[because of art's] ability to evoke imaginary worlds, and not representation in the strict and narrow sense . . . .5 [I]n an act of cognition whereby we get to know an object, the . . . powers of imagination . . . and understanding . . . are engaged like two gear wheels. But in an act of aesthetic contemplation, the two wheels spin without engaging and the cognitive mechanism runs on idle . . . . Aesthetic pleasure is "in the harmony of the cognitive faculties," in "the quickening of both faculties (imagination and understanding) to an indefinite, and yet, thanks to the given representation, harmonious activity."6

Olympia is perhaps Eduoard Manet's most famous painting, but for many years it was the subject of scandal, controversy, and great embarrassment for Manet himself. This reaction was not the result of the depiction of a nude woman, but instead of a woman kept by an upper-class gentleman, which evoked meaning that threatened the cultural identity and authority of the ruling classes in France.

Eduoard Manet, Olympia (1863), Reunion des Musee Nationaux/Art Resource, New York.

(Photograph in Pdf File)

Art spurs imagination and re-representation of the objective; it is, perhaps, intrinsic to creativity. Such art, which I call nonpropositional art, is perhaps the highest form of art; more importantly, it is the most dangerous and controversial form of art.

Plato was no fan of art. He found art to be dangerous.7 He thought that it undermined the social order, rested on emotion and force, and unleashed unknown power-as Manet's...

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