I. What is Art?
– In Brancusi, the question is whether the sculpture is a piece of art, therefore is not subject to a tariff or is it merely a piece of metal so it is subject to a tariff?
– Definition of art: Para 1704 of the Tariff Act: original sculptures (only first 2 replicas) by professional production of sculptor in bronze (or other materials)…shall not include articles of utility
– “Artists’ proof etchings unbound” stages of making etches – at some point it becomes the finished product, the final etching can be copied easily, numbered and sold
– A painting is only one, while etchings have multiple copies – language of 1704 says only the original etching counts as art, the copies do not
– Brancusi factors: 1) original art, 2) purely ornamental, 3) made by a professional
WHAT IS ART AND (WHY) IS ART PROTECTED BY THE 1ST AMENDMENT?
Questions to keep in mind à
What do we mean by art?
Tariffs / customs cases try to figure out what art is
Used to be various schemes of exemptions / lower tariffs for works of art brought into US
Usually a distinction b/w utilitarian or ornamental works and fine art
Idea behind this treatment was education – that we would expose Americans to European greatness through art
What is the 1st Amend really about? Where does art fit in the 1st Amend?
To the extent we think of the 1st Amend as protecting the marketplace of ideas, is art an idea?
Roth talks about value
Miller talks about seriousness – suggests equivalence b/w artistic and political value
Why does value matter given the notion of the harm that obscenity does?
Feminist anti-porn movement and child porn law call into question the assumptions underlying obscenity law that art is unquestionably protected
Customs cases à
United States v. Perry (1892)
Defines art into 4 categories à distinction b/w utility and ornament
(1) fine arts (only form of high art) – intended for solely ornamental purposes
Paintings; original statuary of marble, stone or bronze
(2) minor objects of art – also intended for ornamental purposes
Statuettes, vases, drawings, etchings, bric-a-brac; art “susceptible of an indefinite reproduction from the original”
(3) objects of art – primarily an ornamental and incidentally a useful purpose
Stained glass, tapestries, etc
(4) objects primarily designed for useful purpose but ornamental to please the eye
Furniture, carpets, clocks
In distinguishing what is high and what is low, the court seems to care about?
Originality vs. reproduction – essential that art is singular
Useful vs. ornamental quality – assumption that art is pretty, beautiful, pleasing to the eye
But ornament is itself sometimes useful
And the MoMA would disagree – displays household objects as art now
In terms of post-modernism à all of these distinctions are under attack, if not erased completely
But Perry categories are still present in contemporary American legal thinking about art
United States v. Olivotti(1916)
Court assumes that sculpture is art that imitates natural objects – chiefly the human form
Beauty alone can’t make something art – at least when it comes to sculpture, the work must imitate a natural object
Later court really changes its mind à
Brancusi v. United States (1928)
Escape from pure representation – more toward abstraction
Art doesn’t have to be imitative – though Brancusi’s art isn’t pure abstraction, there is some reference to life
Art’s 1st Amendment status à
Bery I v. City of New York (1995)
NYC licensing scheme for street vendors
Printed matter is an exception (because of 1st Amend values)
“Although some art may be very close to pure speech, plaintiff’s art does not carry either words or the particularized social and political messages upon which the 1st Amend places special value”
Problem for art: (1) not verbal, (2) doesn’t convey a particularized message, and (3) doesn’t convey a particularized social/political message
§ (1) art is farther from the core of the 1st Amend than the written word
§ (3) references the marketplace of ideas, 1st Amend’s justification sounding in political, democratic ideals (i.e. hate speech, speech that implicates questions of intent and effect)
So important characteristics are verbal, particularized, and political
Court holds that regulation doesn’t unconstitutionally interfere w/ artist’s free speech
Bery II v. City of New York (1996)
Viewed as a great pro-art decision – court says art is deserving of full 1st Amend protection
(1) Court recognizes that central purpose of 1st Amend is free discussion of gov affairs – but says cases haven’t suggested that expression about philosophical, social, artistic, etc matters is entitled to full 1st Amend protection
(2) Court cites 1952 Birkston case (held: film is a medium entitled to 1st Amend protection) – “motion pictures may affect public attitudes and behavior” in a variety of ways including making us espouse a political view
§ Assumption that art somehow reaches your thoughts
Bork: art is a pleasure, but not protected by 1st Amend because not political
Mickeljohn: literature and art inform who we are as people in a way that helps us to be citizens who can vote
Bork: not good art—good art doesn’t do that
§ Classic debate à how does art fit into this political marketplace of ideas? Adler says the court skips over it a little bit
(3) Court says visual art is as wide-ranging in its depictions of ideas as any book or other writing, and is similarly entitled to full 1st Amend protection
(4) Ideas and concepts in visual art have the power to transcend language limitations, as well as to reach both educated and illiterate people
§ Idea that art is transparent might actually be backwards for some kinds of visual art
§ Class dimension – may still be vestiges about the dangerousness of images, but here court invokes it to use the accessibility of images as a justification to protect them (rather than suppress them)
(5) Court mentions Winslow Homer’s Civil War paintings – expressed an anti-war sentiment, idea that war isn’t heroic
§ Court slips easily into the political realm – this painting makes the court’s case easier (as opposed to more modern art that might be harder to understand as speech / expression, i.e. Rothko’s colored blobs)
Adler suggests that the court doesn’t offer a satisfactory explanation of why art should merit such significant 1st Amend status – court obscures some of the problems that they are nonetheless bringing out
Mastrovincenzo v. City of New York (2004)
Factors for determining whether something is sufficiently expressive to receive 1st Amend protection à
(1) individualized creation of the item by the particular artist
(2) artist’s primary motivation for producing and selling the item
(3) vendor’s bona fides as an artist
(4) whether vendor is attempting to convey his own message
(5) whether item appears to contain any elements of expression or communication that objectively could be understood
Assumption of the importance of uniqueness vs. mass production
What is it about uniqueness that makes an item distinguishable for 1st Amend purposes?
Something about the piece having part of the person’s personality / spirit
Might be relevant b/c of importance of communicative element underlying 1st Amend – someone is behind the work speaking
Also something about the piece being replaceable or not
What about Warhol’s Brillo boxes, which directly challenge notion that mass production is antithetical to art?
Fact that art is sold doesn’t make it any less protected
Hurley v. Irish-American Parade(didn’t read)
Court in passing says we can’t expect something to have a particularized message to merit 1st Amend protection – such a standard would endanger “the unquestionably shielded paintings of Jackson Pollack, music of Arnold Schonberg, or Jabberwocky verse of Lewis Carroll”
But doesn’t say why
utterances
Court beings to reckon with the power and significance of speech that is irrational, nondiscursive, iconic, emotional, and visual
Fear that a visual symbol is so powerful that it may overpower the speaker – he won’t be able to control its meaning – so they don’t fit into the reasoned, rational marketplace of ideas
Visual images by their nature can’t be confined
But this shouldn’t mean they aren’t protected by the 1st Amend – should instead cause us to “rethink the cramped 1st Amend model that we currently insist on”
The force of visual images so evident in these cases illuminates both why we censor art and, more importantly, why we should protect it
Rehnquist, flags and graven images
Rehnquist says the flag is the thing it represents, there is no other meaning
Confusion between image and reality
Says pro/con opinions can’t be tolerated with regard to the flag – shouldn’t be subject to the marketplace of ideas
Resembles MacKinnon – no other way to think about pornography than as the subordination of women
Also resembles Matsuda when talking about wanting to take hate speech/racism out of the marketplace of ideas
Also connection to iconoclasm – speaks of the mystical reverence towards the flag, attributes a religious quality to it
Barnette: Jehovah’s Witnesses would salute the flag b/c felt it was a graven image
Rehnquist: if you don’t like America, say it another way
But 1st Amend says there is a difference between means of expressing something – part of the reason is that the flag is such a sacred and recognizable symbol
To change the form is to change the content
This is a very traditional way of looking at images – but not a 1st Amend way of looking at them
Texas v. Johnson (1989)
Two steps in expressive conduct cases à
Is it expressive? (does it trigger 1st Amend scrutiny)
Spence test – threshold test when not in realm of verbal material
(1) whether there is an intent to convey a particularized message;
(2) whether the likelihood was great that the message would be understood by those who viewed it; and
Difference b/w intent and effect – but here the court is demanding both and perhaps envisioning a convergence between them
(3) the context of the conduct
Court doesn’t use Spence test much – seems confused by it
If it is expressive, can the gov still restrict it?
O’Brien test – if your speech / behavior qualifies under Spence, must still survive here under intermediate scrutiny test
(1) within constitutional power of gov;
(2) further an important or substantial gov interest;
(3) gov interest is unrelated to suppression of free expression; and
Almost all action comes at this prong – seems like an easy way to get around 1st Amend prohibition against content discrimination
Texas v. Johnson one of the rare instances where gov loses b/c they lose under this prong
(4) incidental restriction on speech no greater than essential for furtherance of the interest (like narrow tailoring)
State asserts its interests to try and overcome O’Brien 3rd prong
Prevent breach of the peace
Preserve flag as a symbol of national unity
Court considers flag burning a form of speech known as “expressive conduct”
