Document Type

Article

Publication Title

West Virginia Law Review

Abstract

Why has "art" been the subject of so many recent censorship attacks? The attacks on art point to an unsolved problem in First Amendment theory: how do we justify protection for art under a vision of the First Amendment that values only rational ideas and straightforward political argument? How does art - nondiscursive, non-verbal, often irrational, expression-fit into this picture? In this piece, I argue that contemporary First Amendment battles over art must be understood in light of the history of iconoclasm and the anxiety that surrounds visual, as opposed to verbal, representation. By refraining the debate in this way, I show that scholars have overlooked an important, albeit improbable, source for justifying the protection of art as speech. I address these issues by asking first, why do we-in fact, do we? -protect art under the First Amendment? And second, why have we displayed such an impulse to censor and attack art? I argue that the answer to both questions ought to be the same: The very things about art that make us uncomfortable and that fuel our impulse to censor it-its force beyond words, its power and its irrationality should make it fully protected speech under the First Amendment. But to reach this conclusion, we must rethink the marketplace of ideas model that lies at the foundation of First Amendment law.

First Page

205

Volume

103

Publication Date

2000

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