Art as Speech

Abstract

In this article, I contend that artistic expression has often been undervalued as a form of expression. There may be several explanations for this, notably that most theories justifying protection of speech relate to political speech (e.g, marketplace of ideas, pursuit of truth, checking value). But the main reason for this state of affairs, I contend, is that there is not a convincing theory for the status of artistic expression as protected speech.

Accordingly, I fill this void by elaborating theories that justify the status of artistic expression as protected speech under the First Amendment. These theories are: art is unique because it partakes of the creative process; art addresses aspects of human life that are often beyond normal comprehension; and art constitutes a domain of freedom beyond the normal rules of society. These theories address art on its own terms - because it is art - and not because artistic expression is political or religious. Justifying art as speech for its own sake should result in valuing art as core speech that, accordingly, should presumptively be protected absent exigent circumstance.

Keywords: First Amendment, Constitutional Law, Free Speech