Art and the First Amendment

Mark Tushnet

My article Art and the First Amendment has just appeared in the Columbia Journal of Law & the Arts, and this is the first of a few posts dealing with the article. The article begins by quoting Justice Souter, that Jackson Pollock’s paintings are “unquestionably shielded” by the First Amendment. (More precisely, it begins with an image of Jackson Pollock’s Blue Poles No. 11, 1952 – a fact to which I’ll return in my second post.) The burden of the article is that it’s actually pretty difficult to explain why Justice Souter was right. In the end, I conclude, he probably was right, but getting to the answer is much harder than you might think.

Lots of reasons for saying that art is covered by the First Amendment come to mind pretty readily, but on analysis none of them work really well. The first thing people tend to think is that Pollock’s paintings – and non-representational art in general, images of which are scattered through the article – are products of the human imagination, and surely such products have to be covered by the First Amendment. Yet, lots of other things are products of the human imagination – an ingenious business plan, for example, and we don’t think that implementing a business plan is covered by the First Amendment. (For reasons I develop in the article, I use ticket-scalping as the running example of an activity we don’t think is covered by the First Amendment. And, along the way, I explain the difference between “coverage” and “protection” and why it’s important to be clear on the question, which is whether art is covered, not whether it’s protected.)

The next thing people think about is what kinds of regulations of art some legislature might adopt. What about a regulation banning the public display (on private property) of Claes Oldenburg sculptures on the ground that they’re ugly? “Content-based,” you’re likely to think. But the legal category “content-based” is relevant only after we’ve already concluded that non-representational art is covered by the First Amendment, and that’s precisely what I’m questioning in the article. (Think about a regulation banning a paint factory from a neighborhood because it stinks – no First Amendment problem there, right? How is “It stinks” different from “It’s ugly” in a constitutionally relevant way if the sculpture isn’t covered by the First Amendment?)

The next move is to say, “Well, lots of sensible regulations might end up being content-neutral regulations with an incidental effect on the display of art, and constitutional because their impact on expression isn’t large enough, so the question of coverage isn’t really worth worrying about. Just assume that art’s covered, apply standard First Amendment tests, and nothing’s going to be unconstitutional anyway.” Here my counterexample is the application of historic preservation rules to Christo/Jean-Claude wrappings of historic buildings – it’s not obvious to me that doing so would be constitutional if the works come within the First Amendment's scope, which means that we really do have to decide whether the wrappings are covered by the First Amendment. (I know, I know, but you try to write that sentence without the word "covered" in it.)

Well, it’s a long article, and I’m not going to go through everything I argue. I hope you’ll take a look at it – and I mean “look,” because the images in the article are integral to the argument.