Art and Freedom of Speech. Randall P. Bezanson. Urbana, IL: University of Illinois Press, 2009. 313 pp.
Art has frequently caused firestorms of scandal in a context of sex, impiety, or cultural irreverence—think Marcel Duchamp’s Fountain (1917), Andres Serrano’s Piss Christ (1987), or Kurt Westergaard’s Muhammad (2005). Art’s abstract or subjective nature has complicated legal categorization; First Amendment scholars have engaged a social notion of art, but few have displayed author Randall P. Bezanson’s felicity with complex legal theory, which he discusses fluidly, or his deep compassion for human creativity.
Ought art to be artful, and if so, to whom? Is its nature aesthetic or political? Can art be crafty? Should the state patronize art, and if so, whose art? Such questions are easier asked than answered, but Bezanson does not avoid them. Toward the end of his delectable intellectual journey, the University of Iowa law professor, who has authored six other critically acclaimed books on constitutional law, produces a twenty-page argument for a two-step legal test of art appreciation to help determine the protection of art by the First Amendment. His test entails classifying art by whether it “fits the speech paradigm”—as seen in the irreverent t-shirt line opposing the draft or the cartoon of a religious prophet wearing a bomb. If art does meet that test, it ought to be protected. Simple enough. And besides, Bezanson’s dialectic is a mind feast.
Historically, what has been the legal status of art? Bezanson states at the outset, “Art and aesthetics are the forbidden fruit of the First Amendment. They enjoy a tortured history in the annals of constitutional law.” His two-step test, which appears in the last chapter, enables a re-conceptualization of art as a category of expression. It springs from an exhaustive review of the U.S. Supreme Court’s position on the legality of art.
Then there’s “the hardest question of all: Should courts judge the quality of a work of art? If so, how, and if not, with what consequences?” Bezanson notes that, evidently, the U.S. Supreme Court has not delved into the meaning of art. Rather, the court has used procedural standards to decide the constitutionality of the regulation of art, asking questions such as, “Is the law overbroad or vague? Does the government have a legitimate interest in the regulation?”
Bezanson quotes the great libertarian justice Oliver Wendell Holmes in places to drive his narrative but also to emphasize that judging art “would be a dangerous undertaking for persons trained only in the law.” In addition to Holmes, he also quotes Alexander Meiklejohn, David Richard, and Thomas I. Emerson as he delineates the four “central purposes of the free speech guarantee” as: (1) a search for truth; (2) an enabling of self-governance or a free, democratic society; (3) individual self-fulfillment and autonomy; and (4) peaceful resolution of differences and peaceable change.
Surprisingly, only briefly does the book discuss the disparate traditions of First Amendment theory. Briefly, too, is its discussion of what speech means, using, among other methods, Justice Antonin Scalia’s strict constructionist method of “textualism” and its “public meaning.” Still, Art and Freedom is strong in its threadbare discussion of eight key cases involving artistic expression and the First Amendment. The cases include Barnes v. Glenn Theatres (1991), about nude dancing; Boy Scouts v. Dale (2000), about the firing of a gay scoutmaster; Hurley v. Irish-American Gay, Lesbian and Bisexual Coalition of Boston (2000), about the exclusion of a gay group from the Saint Patrick’s Day Parade; Jenkins v. Georgia (1974), about the test of obscene speech; and Virginia v. Black (2003), about cross-burning—“aesthetic transformation of a hateful or threatening idea into a real fear that justifies suppression” when it is intimidating.
The book is also strong in Bezanson’s masterful use of transcripts from Supreme Court hearings, such as in National Endowment for the Arts v. Finley (1998). The Q&A portions vividly depict courtroom dramas, offering delectable and valuable context. In addition, the book contains seventeen reproductions of controversial art, including Fountain and Piss Christ but, understandably, excluding Muhammad.
Bezanson engages the meanings of art more elaborately than as speech. On the question of how one ought to define art and the aesthetic, he claims that most scholars, ranging “from Plato to Hegel to modern scholars like Alison Young and Karol Berger,” have only partly succeeded in defining art, despite offering valuable insights. Then, in a sense, he takes up their cudgels. He refers to many classical, utilitarian, and modern philosophers as he evaluates positions such as whether “it is the ‘message’ of a work of art, not its form and sensory perception, that counts,” but he also quotes the Oxford English Dictionary, which defines art as “skill; its display or application”; aesthetic as “the science which treats of the conditions of sensuous perception,” and the “philosophy or theory of taste or of the perception of the beautiful in nature and art.” Along the way, he addresses a distinction between art and craft, discussing J.S.G. Boggs’ currency art in a context of counterfeiting.
The book, which applies sophisticated legal theory to understand art, explores the boundaries of art and the limits on the government’s role as patron. It explores the role that social values of decency, equality, and respect play in limiting the production or distribution of art, and its stated aim is “to focus on the fundamental questions that underlie any meaningful discussion of the role and status of art as free speech protected by the First Amendment to the United States Constitution.”
Bezanson’s nimble approach not only produces a legal test of art appreciation, but also allows him to juggle concepts in art and law systematically. All else said, he concludes, “Crafting a standard, process, and evidentiary system by which art might seek protection as art may well be possible. Even desirable. We must at least hope so. For in a highly legalized and communication-based culture, there is no way that art will be able to escape the grip of law.”
Art and Freedom of Speech comprises an introduction, nine chapters, notes, and an index. It would make an elegant addition to the library of any legal scholar or graduate student who seeks to meditate on art in a legal context.
University of North Texas