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. 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?
And from the text:
domestication. It rests on emotion and the senses. Art, as I use the term
here, is a representation perceived not mainly through our cognitive
faculties, but instead through our senses unconstrained by reason. An object
or performance that we call art is an instrument through which the
presented object is assimilated through the senses and becomes re-
represented as something distinct to each person—a perception or
understanding grounded in an act of imagination.
And from the conclusion:
in the late Eighteenth Century—did not include art, but it should today.
The expansion of speech to include art reflects the evolved and evolving
habits and attitudes of society at large over a period of more than 200 years.
Today, art is a major source of expression and ideas. It is a central feature of
the creativity that our culture so prizes. Our culture has evolved from a time
when there was no broad private market in art—only patronage—to a time
when the private market in art is pervasive.
Highly recommended — Strict constructionism, Justice Scalia, Serrano’s Piss Christ, Manet, and Finley’s Return of the Chocolate-Smeared Woman all in one article.