Michael Conklin (Angelo State University - Business Law; Texas A&M University School of Law) has posted Discrimination as Protected Artistic Expression on SSRN. Here is the abstract:
This Article uses a recent, controversial incident involving a participatory art installation that included a discriminatory element as a catalyst to explore the relationship at the convergence of artistic expression, discrimination, and the law. This Article also evaluates other attempts to use artistic expressions to circumvent generally applicable laws. The methodology employed provides a valuable legal framework for analyzing such an inherently subjective and nuanced topic. This Article also includes a pragmatic consideration of potential unintended consequences of including discriminatory elements in artistic expressions. Finally, the Article concludes by providing an analysis as to how these cases would likely be adjudicated based on legal precedent-a complex task given the paradoxical nature of the competing interests involved.
