By Hayley Robb, F/G Scholar
In a profession committed to accuracy, brevity and objectivity, the foundations of the First Amendment theory are much of what journalists value. From the free trade of ideas and diverse perspectives to the uncertain truth, these theories can be extended all the way to artistic, scientific and religious freedoms too.
The First Amendment states, “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.”
A nation committed to this kind of openness ultimately places the burden on the government in how it justifies its encroachments, Rodney A. Smolla said in his article “The Case for an Open Culture.” He explains First Amendment Theory can be broken down into three fundamental arguments: a marketplace of ideas, free expression by human dignity and the necessity of self-governance in a democracy.
However, these three ideas can be applied to so much more than just verbal and written speech, and that is where my interest lies.
The free trade of ideas throughout history has been rallied and cried without any words at all. Art and design are mediums that can also rest on the “optimism of truth,” as stated by Smolla. It is a medium “linked to the pursuit of pleasure,” he said. So, by default must be regulated just as any pleasurable activity. For example, marijuana use and prostitution can be classified as enjoyable activities for some, but both have regulations. So, who decides the regulations upon speech? And even more so, who determines the regulations placed on a subjective piece of art?
University of Florida scholar, Thomas I. Emerson, argues the Supreme Court does not have a sufficient way to deal with this dilemma in First Amendment court cases, which has led to a downfall in the performance of lower level court systems, other government officials and the public’s understanding of their own right.
The same decisions have to be made by the judiciary branch in artistic expression (Eberle, 2007, p. 18). The freedom of speech oftentimes has a political context, however, as Smolla states, political speech is not the exclusive rationale to self-governance.
Art can be justified as a rationale of speech for multiple reasons, one being the first of Smolla’s fundamentals of the First Amendment. Art advances knowledge and the pursuit of truth by contributing to a competitive market of ideas (Eberle, 2007, p. 18).
One of the examples Eberle (2007) provides is through Felix Nussbaum who painted scenes depicting the hopelessness of Jews in Europe during Nazi Germany. His art acts as a lens for those who did not witness the inhumanity of the events first-hand (p. 19).
This example furthers the pursuit of the truth and the silencing of factual disagreements. Gey argues the utter senselessness of deliberately spreading falsehoods lends itself to a dysfunctional misunderstanding of the world. Art illustrating the past aids in suppressing this type of “heresy,” which John Stuart Mill also supports in his seminal work, “On Liberty.”
“It is a right, defiantly, robustly and irreverently to speak one’s mind – just because it is one’s mind,” Smolla said.
Free expression and human dignity are arguably one of the reasons people are able to speak out against the government through photo manipulation or the posters in their hands. That is not to say art is more valuable than any word spoken, or speech given. Rather it serves as an alternative (Eberle, 2007, p. 19).
There is no definitive way to gauge the value of the contribution to greater good. (Eberle, 2007, p. 19) It is the people’s responsibility to determine that.
Similarly, to the safety valve justification as mentioned by Gey in his argument against denying the Holocaust, art speech is both an act of self-realization and self-fulfillment as part of human dignity (Eberle, 2007, p. 19). Eberle (2007) argues art can be a core aspect of someone’s identity and can cultivate human potential (p. 19).
Art can also serve as self-fulfillment and allow the public to release angers and tensions without lashing out in violence. Protecting artistic expression gives creatives an outlet while also enhancing their craft. Eberle (2007) argues it is “cathartic” and allows people to escape from the exterior world and enter the inner workings of their own mind (p. 22).
One example Eberle (2007) gives is from nineteenth century Germany. The Germans were inspired by the French Revolution to create a democratic society, but the democrats were met with repression from Prussian authorities (p. 22). In response to many suppressed reform movements around 1848, the democrats delved deep into their minds to foster enhancements in art, science and academic research. Art speech served as a funnel for all of their frustration and turned into concepts built into German Basic Law (Eberle, 2007, p. 22-23).
Gey’s safety valve justification is grounded upon this optimism that nonviolence will persist, evident today through the Black Lives Matter movement and the women’s rights marches across the U.S in 2017.
However, the downside to this theory is nonviolence does not always persist.
Just as violent protests have broken out in places like Charlottesville, Virginia, and Kent State University in Ohio, art speech, too, can have negative depictions leading to violence (Eberle, 2007, p.25).
Citizens do have the right to criticize things like war participation through the necessity of self-governance, Smolla said. He claims there is a universal agreement to protect the free discussion of governmental affairs illustrated in five ways: pursuit of political truth, facilitation of majority rule, restraint of tyranny, corruption and ineptitude, and the maintenance of stability.
However, the government has made efforts to impede speech and governmental processes granted by self-governance, according to Smolla, and scholars Steven Gey with the Florida State Law Review and Alexander Meiklejohn. The government has also made efforts to impede art speech, according to Eberle (2007, p. 24). The Court has stated for speech to qualify as non-obscene it must “have serious literary, artistic, political or scientific value…” and those categories which have been labeled as unprotected are few: “comprise incitement to violence, threat, fighting words, actual malice defamation, child pornography and obscenity” (Eberle, 2007, p. 24-25).
The real issue Eberle (2007) states is the lack of a precise definition of art speech to distinguish it from other forms of speech and to categorize it accurately (p. 27).
Freedom of speech can come in many forms that it will never be definitive.
However, recurring themes exist amongst all forms of expression wherein art becomes reiterated throughout history (French, 2015).
To protest the killing of Trayvon Martin two children held signs up in a Minnesota march asking, “Am I Next?” This photo was taken 50 years after similar Vietnam anti-war posters were held asking, “Your son next?” (French, 2015, para. 6)
The recurring themes and symbols able to be illustrated through art is almost more powerful than the words written on the posters.
“Art speech speaks to this important interior dimension of a human being that addresses imagination, creativity and spirit” (Eberle, 2007, p. 28).
Art is permanent. It is always visible and will continue to be open to interpretation – what truly matters is the perspective of the eyes of the beholder.
Eberle, E. J. (2007). Art as Speech. University of Pennsylvania School of Law and Social Change,11(1). Retrieved September 07, 2018, from https://www.law.upenn.edu/journals/jlasc/articles/volume11/issue1/Eberle11U.Pa.J.L.&Soc.Change1(2007).pdf.
Jones, D. (Photographer). (2012). Signs of Resistance [digital image]. Retrieved from http://www.latimes.com/books/la-ca-jc-signs-of-resistance-20180215-story.html
Nussbaum, F. (Photographer). (1939). The Refugee [digital image]. Retrieved from http://www.bbc.com/culture/story/20160203-art-from-the-holocaust-the-stories-behind-the-images
(1970). Your son next? [digital image]. Retrieved from https://www.theguardian.com/artanddesign/gallery/2016/jan/30/after-kent-state-1970s-anti-war-student-art-in-pictures