Randall P. Bezanson (University of Iowa College of Law) has posted Art and the Constitution (Iowa Law Review, Forthcoming) on SSRN. Here is the abstract:
Art and the Constitution addresses a longstanding problem in free speech theory: the status of art as expression protected by the First Amendment. The article, drawn from Professor Bezanson's forthcoming book, Art and the First Amendment (U. Ill. Press 2008-09), suggests that art should be broken down into two separate forms, propositional art and non-propositional art, with propositional art to be protected under the traditional speech paradigm and non-propositional art to be protected under an altogether different paradigm that results in art enjoying a distinct and greater degree of freedom under the First Amendment.
I enjoyed the very interesting discusson of art and the freedom of speech. I wonder what Bezanson would think of the standard New Originalist reply to the argument that the "freedom of speech" does not encompass nonverbal artistic expression. The Ninth Amendment specifically forbids judges and other officials from construing the enumeration of the right to freedom of speech as denying or disparaging other rights retained by the people. It doesn't take a very fancy theory of retained rights to conclude that if both speech and art are protected then artistic expression is a retained right. (I will leave the argument to the reader.) Of course, the Ninth Amendment only makes it clear that federal power does not extend to abridgements of the right of artistic expression. The application of the right to state governments would require consideraton of the "privileges or immunities" clause of the 14th amendment. This phrase is enigmatic given the contemporary meaning of "privileges" and "immunities," but there is good evidence that the division of linguistic labor in the reconstruction era would lead us to specialist usage and Justice Bushrod Washington's opinion in Corfield by Coryell and beyond that to Blackstone's discussion of privileges and immunities:
Thus much for the declaration of our rights and liberties. The rights themselves thus defined by [Magna Carta and other foundational] statutes, consist in a number of private immunities; which will appear, from what has been premised, to be indeed no other, than either that residuum of natural liberty, which is not required by the laws of society to be sacrificed to public convenience; or else those civil privileges, which society hath engaged to provide, in lieu of the natural liberties so given up by individuals. These therefore were formerly, by inheritance or purchase, the rights of all mankind; but, in most other countries of the world being now more or less debased and destroyed, they at present may be said to remain, in a peculiar and emphatical manner, the rights of the people of England. And these may be reduced to three principal or primary articles; the right of personal security, the right of personal liberty; and the right of private property: because as there is no other known method of compulsion, or of abridging man's natural free will, but by an infringement or diminution of one or other of these important rights, the preservation of these, inviolate, may justly be said to include the preservation of our civil immunities in their largest and most extensive sense.declaration of our rights and liberties. The rights themselves thus defined by [Magna Carta and other foundational] statutes, consist in a number of private immunities; which will appear, from what has been premised, to be indeed no other, than either that residuum of natural liberty, which is not required by the laws of society to be sacrificed to public convenience; or else those civil privileges, which society hath engaged to provide, in lieu of the natural liberties so given up by individuals. These therefore were formerly, by inheritance or purchase, the rights of all mankind; but, in most other countries of the world being now more or less debased and destroyed, they at present may be said to remain, in a peculiar and emphatical manner, the rights of the people of England. And these may be reduced to three principal or primary articles; the right of personal security, the right of personal liberty; and the right of private property: because as there is no other known method of compulsion, or of abridging man's natural free will, but by an infringement or diminution of one or other of these important rights, the preservation of these, inviolate, may justly be said to include the preservation of our civil immunities in their largest and most extensive sense.
William Blackstone, Commentaries on the Laws of England *125 (W.S. Hein & Co. reprint 1992) (1768).
If you are interested in art law, read Bezanson.
