Art Threats and First Amendment Disruption

56 Pages Posted: 20 May 2020

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, the First Amendment covers good art. But judges don’t want to make qualitative judgments, and law and rap scholars don’t want to admit that most individuals who attempt to rap simply aren’t very skilled at it. 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 is forced to distinguish art from threat. I consider some pragmatic solutions for how either civil society or the state can mirror the essential quality control work done by prior institutional actors. My thinking is informed by a noble understanding of rap and 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)

Georgetown University Law Center ( email )

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

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