Reflections on "Art and the First Amendment"

Mark Tushnet

Now that you’ve read my article on Art and the First Amendment, some reflections. I begin with the fact that nobody likes it. People are polite enough when I present the argument, but it’s not simply that they are unpersuaded. They just don’t like it. And I have some quasi-objective evidence about that. I couldn’t get the article published in the main journal at any top N school, and trust me, I tried.

There’s some good news in that. It shows that student editors aren’t bowled over by the prospect of publishing anything that comes over the transom from a well-known professor at a highly ranked (#3 has to count as highly ranked, right?) law school. They are actually making substantive judgments about the articles they get, at least sometimes.

But of course I have to think that their substantive judgments were wrong. (You can disagree, but only after you’ve read the article.) So, what could account for my inability to place the article “well” according to conventional criteria? (To the editors at the Columbia VLA journal: I do think I placed it well because it’s going to reach a large segment of the audience particularly interested in the issues I raise.)

Again, I have to reject the obvious explanation, that the article isn’t in fact very good. And, frankly, I read a lot of those law reviews, and I’m quite sure – and I think you will be – that they published articles no better than mine, even in constitutional law, over the last year. So, here are some speculations:

1. I submitted the article slightly out-of-cycle at most of the law reviews, and was caught by the incremental adjustments in the standards applied as the cycle goes on.

2. The article has a lot of images, and publishing them raises some questions about copyright – questions I flagged in my cover letter. I said, and believe, that my uses of the images were all fair uses, but some editors may have figured, why take any risk at all?

3. I hate “roadmap” paragraphs, and don’t write them on my own. My particular bête noire is this: “Part VI concludes,” which is to say, “The Conclusion concludes.” [What else do you expect a conclusion to do?] The article as published has one, because I will go along with editors’ requests. But, maybe the editors figured that the judgment reflected in the absence of a roadmap paragraph would translate into recalcitrance during the editing stages, and again, why borrow trouble? (Note to law review editors reading this: It doesn’t; I’m really easy to edit.)

4. The article doesn’t have a strong normative conclusion. It doesn’t say that the Supreme Court has completely messed up in its treatment of art and the First Amendment. And, indeed, it says that the Court may have gotten it basically right, though the reasons are more complicated than people tend to assume. So, the reaction might be, “Why bother to go through all this to say that the law is basically in the right place anyway?” – particularly on a question that nobody seems to have raised anyway. (That is, maybe you can publish an article saying that the Court’s basically right when someone else has written one saying that the Court’s messed things up, but without the predicate article no one’s going to care that you’ve “defended” the Court’s results.)

This last point is related to another, which I’ll reserve for a final post tomorrow.