Art Threats and First Amendment Disruption

57 Pages Posted: 20 May 2020 Last revised: 14 Jul 2020

See all articles by Andrew Jensen Kerr

Andrew Jensen Kerr

Peking University School of Transnational Law

Date Written: April 23, 2020

Abstract

The novel problem of art threats, typified by threatening rap lyrics, has destabilized our First Amendment regime. We traditionally relied on industry gatekeepers like music labels or museum curators to determine what counts as art. However, with the advent of the Internet, amateur artists can share their aesthetic output with a public audience, bypassing the threshold quality control work of the Art World. This has forced U.S. courts to acknowledge foundational questions about what kind of art is covered by the First Amendment. In brief, it covers good art.

In this paper I offer a synthetic conception of the First Amendment that contextualizes this aesthetic gatekeeper problem within a freedom of speech doctrine that has been forced to distinguish art from threat. I echo the claims of law and rap scholars that the amateur attempt at rap should be interpreted within a permissive standard for political speech, but I remind this scholarly network that our category of art speech still connotes a threshold level of quality. Young artists need help with self-editing; they do not need to be punished. But this does not mean the amateur attempt at art should be reified as good art in our constitutional law doctrine. I thus consider some pragmatic solutions for how either civil society or the state can mirror the essential quality control work done by prior Art World actors. My thinking is informed by a noble understanding of rap as well as the cultural assumptions that explain the boundaries of our First Amendment.

Keywords: legal theory, constitutional law, first amendment, criminal law, threats, art, rap

Suggested Citation

Kerr, Andrew Jensen, Art Threats and First Amendment Disruption (April 23, 2020). Duke Journal of Constitutional Law & Public Policy (2021, Forthcoming), Available at SSRN: https://ssrn.com/abstract=3583750

Andrew Jensen Kerr (Contact Author)

Peking University School of Transnational Law ( email )

University Town,
Xili, Nanshan District
Shenzhen, Guangdong 518055
China

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