Freedom of Artistic Expression?
Carl Tait
reminded of something that has bothered me for some time, and
that concerns everyone in the non-verbal arts: What protection
do we *really* have for freedom of artistic expression in the US?
I'm not talking about sources of funding -- let's try not to
start *that* thread for the 37th time -- but the ability to
create, display, and/or perform art without the government
stepping in to shut us down.
The phrase "freedom of expression" is frequently bandied about
(even in Supreme Court decisions, as I remember), but the hallowed
First Amendment contains no such language:
"Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof; or abridging the freedom
of speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances."
I've heard it argued that "speech" was intended to include artistic
expression, but this seems frankly bogus. In what sense is Chopin's
F minor Ballade, or an interpretive dance, or an abstract painting
a form of speech, by any stretch of the imagination? And while none
of these three items existed in 1791, many other forms of music,
dance, and visual art certainly did. Did the authors of the Bill of
Rights simply forget about the arts? Did they deliberately omit them
from explicit protection? Is there some other explanation?
I'm about as strongly in favor of free expression as near-absolutist
Nat Hentoff, but I'd like a more solid base to build on. Please tell
me I'll be able to achieve my cherished dream of performing Rzewski's
"The People United" while wearing a Hitler mask and burning a different
nation's flag before each variation.
--
Carl Tait IBM T. J. Watson Research Center
cdt...@us.ibm.com Yorktown Heights, NY 10598
Chuck Nessa
CN
poseidonia
> I'm about as strongly in favor of free expression as near-absolutist
> Nat Hentoff, but I'd like a more solid base to build on. Please tell
> me I'll be able to achieve my cherished dream of performing Rzewski's
> "The People United" while wearing a Hitler mask and burning a different nation's flag before each variation.
I imagine you might be faced with a situation similar to the one Henze
did at the premiere of his "Raft of the Medusa": the event originally
intended as "art" was transformed into a political act by partisans
chanting "Ho Chi Min!!", and ended in a near-riot and chaos. So I'd
imagine you'd have a lot of angry semiliterate skinheads who never
listened to anything more complex than Tool show up to "appreciate" your
work.
Any art with a political message is a form of speech. Madame Mao's role
in the "Cultural Revoution" was to keep a stranglehold over opera,
dance, music, and novels: if this wasn't a form of propaganda (speech)
they wouldn't have given it so so much of their time and energy. Not to
mention all the blood she had shed over it.
I suppose that in the American avant garde scene "epater le bourgeois"
is as fashionable as it ever was, so I'm sure you'd find a good handful
of people to stand up for you, if only for the publicity. But don't be
surprised when the so-called "defenders of liberty" try to force you to
give up your own rights, either in the form of "hate speech" or "public
nuisance" (once you rally the rowdy partisans who couldn't recognise
good music if it ran over them with a truck). But such is life in the
fin-de-siecele U.S.of A.
With kind words for all, ;-)
Poseidonia
~*~*~*~*~*~
Simon Roberts
Tempting fate, I see....
: The phrase "freedom of expression" is frequently bandied about
: (even in Supreme Court decisions, as I remember), but the hallowed
: First Amendment contains no such language:
: "Congress shall make no law respecting an establishment of religion,
: or prohibiting the free exercise thereof; or abridging the freedom
: of speech, or of the press; or the right of the people peaceably to
: assemble, and to petition the Government for a redress of grievances."
: I've heard it argued that "speech" was intended to include artistic
: expression, but this seems frankly bogus.
If you mean by "was intended" "was intended by the framers," it's entirely
bogus, but probably in more ways than you expect. First, you might note
that the first word of the amendment is "Congress." Like the rest of the
Bill of Rights, it's an act of federalism, a limit on the power of the
federal government vis a vis the states; it did not create a right in
individuals which could be asserted against intrusions by *state*
government. The amendment underlined the fact that Congress had not been
delegated the authority to regulate speech, religion, and assembly; the
framers specifically rejected attempts to limit *state* power to regulate
these things. Thus, Jefferson could write: "While we deny that Congress
have a right to controul [sic] the freedom of the press, we have ever
asserted the rights of the states, and their exclusive right to do so."
It wasn't until 1925 that the Supreme Court expanded the First Amendment
to provide protection against state government, doing so by incorporating
it into the Fourteenth Amendment in Gitlow v. New York, 268 U.S. 652
(1925).
Second, "free speech" didn't have the wide meaning we give it today; for
more than a century after the Bill of Rights was drafted the phrase
retained its common law meaning as explained by Blackstone: freedom from
prior restraint, but not from subsequent punishment; "seditious libel"
remained, uncontroversially, a crime (as late as 1907 the Supreme Court
could state that the first amendment forbade only prior restraint, not
subsequent punishment, in Patterson v. Colorado, 205 U.S. 454 (1907).
Because this is the common understanding of what "free speech" meant,
there was little discussion of "free speech" during the debates in the
first Congress, let alone reasoned analysis of what the phrase means, how
far the right extended, and under what circumstances the right might be
limited.
If you want to read more on this, see L. Levy, Emergence of a Free Press
(1985), which was, and I assume still is, the classic work on the subject.
In what sense is Chopin's
: F minor Ballade, or an interpretive dance, or an abstract painting
: a form of speech, by any stretch of the imagination? And while none
: of these three items existed in 1791, many other forms of music,
: dance, and visual art certainly did. Did the authors of the Bill of
: Rights simply forget about the arts? Did they deliberately omit them
: from explicit protection? Is there some other explanation?
See above. Of course, we aren't bound by the framers' intentions or
expectations in this regard. There's a vast literature on what "free
speech" means and should protect, and the federal courts have given the
phrase a very wide definition (it's only recently that it retreated from
its prior decisions including nude dancing (of the red light district
variety) as protected speech, for instance). Music, dance, etc., are
expressive and communicate and, thus, qualify as speech, or so the
argument goes; you may disagree.
: I'm about as strongly in favor of free expression as near-absolutist
: Nat Hentoff, but I'd like a more solid base to build on. Please tell
: me I'll be able to achieve my cherished dream of performing Rzewski's
: "The People United" while wearing a Hitler mask and burning a different
: nation's flag before each variation.
It's fairly plain, isn't it, that your doing so is protected by the First
Amendment as currently interpreted by the Supreme Court unless your
burning a flag poses a clear and present danger, etc. The burning of
draft cards, flags, participating in a Nazi march, etc., have all
qualified as protected speech-acts.
Simon