Ex Post Modernism: How the First Amendment Framed Nonrepresentational Art

Bonneau, Sonya G.

In Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, the Supreme Court asserted that Jackson Pollock’s paintings are “unquestionably shielded” under the First Amendment. Previously, visual art’s main doctrinal residence stood in obscenity law’s backyard, as a vague definitional tautology: art constitutes speech so long as it is not obscene, and speech is not obscene if it is art. The Hurley Court offered no elaboration as to the “drip” painting’s constitutional relevance, but, even as mere illustrative dictum, the declaration received independent attention on two levels. First, the remark reified a longstanding assumption that visual art was “speech,” offering a specific example outside the realm of obscenity law. Second, the reference to Jackson Pollock’s painting did not merely confer robust protection to art, but definitively extended its embrace to apolitical, nonlinguistic imagery.


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Columbia Journal of Law & the Arts

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November 21, 2016