Although many scholars have been in favor of providing first amendment protection for art, no one has offered a justification for its constitutional protection suited to art's singular capacities. Rather, commentators and courts have been inclined to place art under the rubric of general speech, which limits protection to ideas and content. Professor Hamilton argues that art offers significantly more than its content and deserves first amendment protection tailored to its particular potential. Art enables individuals to experience unfamiliar worlds and thereby to gain new perspectives on the prevailing status quo, including the government's. It performs this function without exposing the individual to the risks inherent in actually experiencing a foreign world view. Moreover, its subversive potential not only occurs at the moment artwork is experienced but also can be stored, making art a powerful and immanent tool of critique.
Professor Hamilton concludes that governmental funding of art projects should be examined with the closest scrutiny, because governmental involvement in the art market skews the market away from works that defamiliarize. Finally, public funding of arts education and appreciation should be a high priority so that students can build a storehouse of reorientation experiences that will protect them against the bewitchment of common sense posed by official power.
Marci A. Hamilton,
49 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol49/iss1/2