Art and Freedom of Speech
Moro, Nikhil, Journalism and Mass Communication Quarterly
* Art and Freedom of Speech. Randall P. Bezanson. Urbana, IL: University of Illinois Press, 2009. 313 pp. $35 hbk.
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). Arf 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 reUgious 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 OUver 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 "pubUc meaning." Still, Art and Freedom is strong in its threadbare discussion of eight key cases involving artistic expression and the First Amendment. …