Helena Handbasket Now Appearing at the KandyLand Klub
Amanda Butler does me a great service by so thoroughly engaging my argument for protecting nude dancing as 'speech'. (I promise that my reasons are pure & have nothing to do with my activities on your average Wednesday night.) She writes:
Spencer Short assumes that I believe "that Martha Graham or Nijinsky would be covered under 1st Amendment law." Given that I'm willing to dump the 'understandable meaning' test for expressive movements and displays, he's assumed wrongly.[1] But I'm not particularly worried. Banning Graham and Nijinksy would fall in that vast category of things which are constitutionally possible, but until this nation goes to hell in a handbasket with many other worse problems to its name, just isn't going to happen in the places where you're most likely to find ballet performances in the first place.
Mr. Short also emphasizes that dancers, nude and ballet, are performing; he distinguishes between that and recreation (would the solo man running a 400-yard dash in a stadium, for an audience, be speaking?). Printed words, which aren't performative, have been included in the freedom speech, perhaps because of the ease with which they can be transformed into speech. Until then, though, the performative aspect of the Federalist Papers is nil. Neither the Mona Lisa nor Calder's stabiles is a performance, either. Yet within art, even highly functional art such as architecture, people talk of the meaning of a piece of work. The bay windows on the (fairly ugly) dorm I lived in my first year are said to speak to the once more-frequent use of bay windows in Chicago apartments. It's a clear evocation of something else, but is it speech? If nolstagia for an old building style is a particularized message, then it passes Spence. Dorms are speech, cathedrals are speech (festoned with meaning all over), Crate & Barrel is speech (hey, why not?) ... is this really what the Founders intended? We get to a place where annoying neighbors can't ban flag burning, nude dancing, or ugly buildings (and I support the existence of all three, though the further you go down the list, the more I question your taste). I like the end, but the right way to get there is to outvote the annoying people, or point out that they don't have cause to regulate on the matter, not to expand First Amendment doctrine willy-nilly (though I've been born far too late to be saying this now).
I'm certainly flattered to have helped spurn her to such dizzying heights. I wasn't aware, until now, that an act had to share EVERY quality with speech in order for it to be protected, so that the 'performative' aspect of dance, in combination with its symbolic language, isn't relevant because written texts are protected & they aren't performative. I assumed that she thought dance to be protected because, frankly, I've never met a lawyer who doesn't. In spite of all of her emphatic eloquence, though, it seems our disagreement comes down to a single, irreconcilable point --
I believe that the performative aspect of art (natch, I meant dance) enables it to fit comfortably under the protection of the First Amendment, she doesn't. Unlike her, I don't think that we can safely assume that interpretive dance won't be attacked & banned -- whether or not we end up in Hell & whether or not it's a handbasket that takes us there, I'm far less comfortable with the endlessly accepting "we" she summons as the audience for a work of art.
And yet, in claiming that censorship of ballet & dance won't happen in the places where ballet & dance are typically performed, she seems engaged in strange logic -- it would seem obvious that dance is only going to occur in places where there's little threat that it will be banned. Why would anyone go elsewhere? Is it prudent to pack up your company & sets & head to a place where they might shut you down? Is it prudent to start a company in a place where the State can put a halt to your production? We shouldn't forget that even the threat of being shut down is a considerable economic disincentive -- one that could & would serve as a means of limiting artistic expression in many parts of the country.
Personally, I think that someone like Karen Finley SHOULD be able to perform in Utah, though under Amanda's reasoning her right to perform for a consenting audience could be over-ridden by the conservative majority. The idea that the minority might have a right to see something not approved of by the majority doesn't seem a consideration in her thinking. An oversight?
Instead, she resorts to her default rhetorical strategy of taking my (fairly narrow) scope & expanding it into ridiculousness.
The relative merits of Crate & Barrel's design aside, here in New York it's not always been the case that the State wouldn't act against art. In 1993 vendors (who'd previously been told they didn't need vendors' licenses because they were protected) were arrested, their art confiscated & then destroyed or sold for city profit. The 2nd Circuit Court of Appeals overturned the ruling allowing the crackdown with what seemed to most a well-grounded ruling:
In viewing "the First Amendment's primary function as safeguarding the free flow of political and religious views," Judge Cedarbaum and the city had taken a too restrictive view of what is shielded by the First Amendment, wrote the court.
Its protection -- the appeals court pointed out, citing previous Supreme Court decisions -- extends to entertainment, film, theater, music (without regard to words), peaceful marches, sit-ins, and parades (with or without written messages). Of course the First Amendment's protection reaches the visual arts.
Responding to Judge Cedarbaum's comment that paintings don't communicate readily, the appeals court wrote: "One cannot look at Winslow Homer's paintings on the Civil War without seeing, in his depictions of the boredom and hardship of the individual soldier, expressions of anti-war sentiments, the idea that war is not heroic."
In spite of Amanda's gymnastics...
(...the conflation of word usages, so that "speaking" is readily interchangable with "speaks of" ( ed: in retrospect I think this criticism unfair. Apologies.); the inherent contradiction of compelling Starfish Printing to print against their will on the one hand, and then, in defining 'speech', a sudden fidelity to "what the Founders intended". She's - shazam! - an originalist. Shades of SCOTUS's opportunistic reasoning...)
...it comes down to whether artistic expression is protected. In the end, this isn't an argument that will be resolved through the internal logic of Constitutional Law. It's a matter of interpretation. If, as I claim, non-lexical art is protected, & I certainly think it should be, Ms. Butler's own words from yesterday are all we need:
Nor do I don't think the hinge of speech is creativity. The bad, the trite, the formulaic -- the First Amendment protects them all without regard to quality.
I define speech in a fairly mainstream way. I believe artistic expression falls within its scope...including visual art & music without words. I like to think that the difference between us &, say, Czechoslovakia is not that we WON'T ban Frank Zappa's music but that we CAN'T. Dance is artistic expression. Nude dancing has enough in common with it (the creation of a character, choreography, symbolic movement) that, in spite of its inferiority to Graham & Nijinsky, it can't be excluded under my understanding of speech without endangering more legitimate forms. I support allowing the coverage of the Amendment to be enlarged (sometimes to include less than savory things) because, unlike Ms. Butler, I think the US has a long Puritanical tradition of trying to stifle that with which it doesn't agree -- all the way up to Robert Maplethorpe & Lenny Bruce & Andres Serrano & Bill Maher -- & that the annoyance of putting up with your local Ran-D-View "dancehall" is well worth the inconvenience.
Crap. I'm all over the place. Anyway, you can refer to me as Spencer if you like. "Mr. Short" spooks me.
