The Constitutional Irrelevance of Art
68 Pages Posted: 8 Mar 2021
Date Written: March 8, 2021
In Masterpiece Cakeshop, the baker’s 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.
But arguments like these — what we might call “artistic exemption claims,” akin to the religious exemptions so much more widely discussed — 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—and to ask when and whether they should succeed.
The surprising answer is that claims of the form “x is protected because it is art” should never succeed. The category “art” is constitutionally irrelevant. Contrary to widespread assertion among scholars and advocates, a work’s status as art has never done any work in the Supreme Court’s First Amendment case law. Instead, the Supreme Court emphasizes individual mediums of expression — categories like paintings and protest marches, books and billboards. Compared to the category “art,” 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.
Understanding the constitutional irrelevance of art — and the constitutional importance of mediums — 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.
Keywords: First Amendment, Art, Mediums of Expression, Philosophy of Art, Artistic Exemptions, Land Use, Rap, Tax Exemptions, Right of Publicity, Trademark, Street Vending, Antidiscrimination Law, Race-Based Casting
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