Professor argues art should be protected speech under the First Amendment
January 5, 2010 by donal brown
Filed under 1st Amendment News, Freedom of Speech / Press, News & Opinion
A University of Iowa law professor says that since a work of art can be interpreted in various ways, it can not be treated as other unprotected speech since its message is not “intended, serious and imminent.” -DB
The Washington Post
Opinion
January 5, 2010
By Randall P. Bezanson
If a National Endowment for the Arts panel decides, based on artistic merit, to provide NEA funding for Robert Mapplethorpe’s homoerotic art, what can the government do about it?
The head of the NEA, following a law passed by Congress, would surely deny the funding because the art is dangerous — indecent and inconsistent with traditional American values. He would be wrong.
To the question “What can government do about dangerous art?” my answer is, “Nothing.”
Mapplethorpe’s art is nonrepresentational. It is art whose aesthetic character evokes meaning in the diverse minds and imaginations of viewers rather than in the force with which a proposition is communicated to an audience. Warhol, say, rather than Dolce & Gabbana.
Mapplethorpe’s art is within a class of art that, from time immemorial, has been censored because of the harms that are claimed to flow from the art itself, such as blasphemy, rage, and destruction of property.
Why should “harmful” art be absolutely free from government restriction under the Constitution? There are two basic reasons. The first goes to the meaning of nonrepresentational art. Simply put, there is no single message and meaning, or even a narrow range of meanings.
Take Serrano’s “Piss Christ” photograph, to pick another particularly aesthetic and emotive example. To some its meaning is just “hateful;” to others it is blasphemous; still others believe it reflects the evil done in the name of religion; and there are those to whom it reflects the obscurity of Christ and his teachings in an evil and condemned world of sin. And so on. It really doesn’t matter what Serrano meant.
How about Pollock, who took obscurity to a new level? Or Duchamp, the non-obscurity of whose urinal in “Fountain” evoked thousands of meanings?
The second reason is that the law, and especially the First Amendment, insists on cause and effect, carefully proven, before expression can be banned. The First Amendment assumes that speech is an intentional act of a person communicating a message to an audience that reasonably understands that message. Such a speaker can be held responsible for harm his message produces if it is intended, serious, and imminent.
Who, under this standard, is responsible for the danger posed by nonrepresentational art? Not the artist, who unleashes emotion and imagination knowing that any specific idea about meaning will be frustrated from the outset. Not the art, which carries no single meaning but is, instead, just an aesthetic “thing.”
No, the parties responsible are us, the audience. In the case of harm, it’s some people who found a message others didn’t and took matters into their own hands. Their imagination and sensibility caused a harm – perhaps a fatwa, perhaps property destruction – and it is they who are responsible for their own volitional acts.
Randall P. Bezanson, the David H. Vernon Professor of Law at the University of Iowa College of Law, is the author of “Art and Freedom of Speech,” published by the University of Illinois Press in August.
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