Ex Post Modernism: How the First Amendment Framed Nonrepresentational Art

38 Pages Posted: 20 Jan 2020

Date Written: 2015


Nonrepresentational art repeatedly surfaces in legal discourse as an example of highly valued First Amendment speech. It is also systematically described in constitutionally valueless terms: nonlinguistic, noncognitive, and apolitical. Why does law talk about nonrepresentational art at all, much less treat it as a constitutional precept? What are the implications for conceptualizing artistic expression as free speech?

This article contends that the source of nonrepresentational art’s presumptive First Amendment value is the same source of its utter lack thereof: modernism. Specifically, a symbolic alliance between abstraction and freedom of expression was forged in the mid-twentieth century, informed by social and political influences that have now disappeared. What remains in its wake is a vague artifactual referent, historically untethered and conceptually reduced. This article reveals modernism’s invisible yet surprisingly tenacious hold on the relevant legal discourse, demonstrating how an embrace that appears both expansive and central to artistic expression is actually narrow and anachronistic. It obscures the big picture. To realign First Amendment theory and jurisprudence with artistic expression, the law should acknowledge the changes wrought by postmodernism.

Keywords: First Amendment, modernism, free speech, postmodernism, artistic expression, nonrepresentational art

JEL Classification: K00, K30, K39

Suggested Citation

Bonneau, Sonya G., Ex Post Modernism: How the First Amendment Framed Nonrepresentational Art (2015). Columbia Journal of Law & the Arts, Vol. 39, pg. 195, 2015, Available at SSRN: https://ssrn.com/abstract=2641027 or http://dx.doi.org/10.2139/ssrn.2641027

Sonya G. Bonneau (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

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