{"id":4533,"date":"2021-04-13T16:04:57","date_gmt":"2021-04-13T20:04:57","guid":{"rendered":"https:\/\/hedgehogsandfoxes.org\/?p=4533"},"modified":"2021-04-13T16:06:52","modified_gmt":"2021-04-13T20:06:52","slug":"soucek-on-the-constitutional-irrelevance-of-art-brsoucek","status":"publish","type":"post","link":"https:\/\/hedgehogsandfoxes.org\/index.php\/2021\/04\/13\/soucek-on-the-constitutional-irrelevance-of-art-brsoucek\/","title":{"rendered":"Soucek on The Constitutional Irrelevance of Art @BRSoucek"},"content":{"rendered":"

Brian Soucek, University of California, Davis, School of Law, has published The Constitutional Irrelevance of Art<\/a> at 99 North Carolina Law Review 685 (2021). Here is the abstract.<\/p>\n

In Masterpiece Cakeshop, the baker\u2019s lead argument to the Supreme Court was that his cakes were artworks, so anti-discrimination laws could not apply. Across the country, vendors who refuse to provide services for same-sex weddings continue making similar arguments on behalf of their floral arrangements, videos, calligraphy, and graphic design, and the Supreme Court will again be asked to consider their claims.<\/p>\n

But arguments like these \u2014 what we might call \u201cartistic exemption claims,\u201d akin to the religious exemptions so much more widely discussed \u2014 are actually made throughout the law, not just in public accommodations cases like Masterpiece Cakeshop. In areas ranging from tax and tort, employment and contracting discrimination, to trademark, land use, and criminal law, litigants argue that otherwise generally applicable laws simply do not apply to artists or their artworks. This Article collects these artistic exemption claims together for the first time in order to examine what determines their occasional success\u2014and to ask when and whether they should succeed.<\/p>\n

The surprising answer is that claims of the form \u201cx is protected because it is art\u201d should never succeed. The category \u201cart\u201d is constitutionally irrelevant. Contrary to widespread assertion among scholars and advocates, a work\u2019s status as art has never done any work in the Supreme Court\u2019s First Amendment case law. Instead, the Supreme Court emphasizes individual mediums of expression \u2014 categories like paintings and protest marches, books and billboards. Compared to the category \u201cart,\u201d these mediums of expression are better defined, easier to administer, and more relevant to that which the law most likely and legitimately wants to regulate. Yet they have gotten far less attention from scholars and lower courts than they deserve.<\/p>\n

Understanding the constitutional irrelevance of art \u2014 and the constitutional importance of mediums \u2014 casts new light on some of the most prominent recent and looming artistic exemption claims at the Supreme Court: not just those made in same-sex wedding cases like Masterpiece Cakeshop and its kin, but also those made in challenges to race discrimination in television, and in criminal threat prosecutions brought against rappers. Asking whether a cake, a TV show, or a rap song is art uselessly distracts from the difficult issues actually at stake in important cases like those, and in First Amendment doctrine more broadly.<\/p><\/blockquote>\n

Download the article from SSRN at the link.<\/p>\n\n

Tweet<\/a><\/div>\n","protected":false},"excerpt":{"rendered":"

Brian Soucek, University of California, Davis, School of Law, has published The Constitutional Irrelevance of Art at 99 North Carolina Law Review 685 (2021). Here is the abstract. In Masterpiece Cakeshop, the baker\u2019s lead...<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[202],"tags":[647,646,585,132],"class_list":["post-4533","post","type-post","status-publish","format-standard","hentry","category-law-and-art","tag-first-amendment","tag-freedom-of-expression","tag-law-and-art","tag-news"],"jetpack_shortlink":"https:\/\/wp.me\/pasVL2-1b7","jetpack_sharing_enabled":true,"jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/4533","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/comments?post=4533"}],"version-history":[{"count":1,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/4533\/revisions"}],"predecessor-version":[{"id":4534,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/4533\/revisions\/4534"}],"wp:attachment":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/media?parent=4533"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/categories?post=4533"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/tags?post=4533"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}