Amanda Butler says,
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
and Spencer Short sums up their disagreement as nothing more than,
I believe that the performative aspect of art enables it to fit comfortably under the protection of the First Amendment, she doesn't.
It seems that anymore performance art has turned into whether the "artist" can shock the audience anymore or not. Given that we've seen just about everything, it is no surprise that even Smut Fest didn't surprise the audience; although it did find a few lawsuits. This recent surge in mixing political messages with highly offensive stage performance has caused the court to examine the tension between freedom of artistic expression and public interests.
In NEA v. Finley, Justice Souter does explain that the Supreme Court has assumed that artistic expression is entitled to First Amendment protection; although, it has never fully articulated it's reasoning for that assumption. 524 US 569 (1998). The Court has determined that a variety of categories of artistic expressive conduct is entitled to First Amendment protection. As a result, the Court has stated that "each medium of expression . . . must be assessed for First Amendment purposes by standards suited to it, for each may present its own problems," but that the "basic principles of freedom of speech" remain consistent. Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558 (1975).
Certainly, conduct or action is not traditional verbal speech. The Supreme Court has, however, stated that conduct can fall within the First Amendment's guarantee of free speech. I remember one article by Peter Meijes Tiersma, Nonverbal Communication and the Freedom of "Speech," that addresses the circumstances under which physical action gets First Amendment protections.
Conduct, however, has always received First Amendment protection. Such as a sit-in to protest against segregation, wearing arm-bands to protest the war, marching in a parade, not saluting the flag in class, and more. The Court has even said that nude dancing is expressive conduct that is "marginally" within the "outer perimeters of the First Amendment." Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566 (1991). The Court has to determine, on a case-by-case basis, whether the conduct at issue is "sufficiently imbued with elements of communication" (Spence v. Washington) and the effectiveness of those communicative elements.
As Justice Marshall has stated, "one should look first to the intent of the speaker -- whether there was an 'intent to convey a particularized message' -- and second to the perception of the audience -- whether 'the likelihood was great that the message would be understood by those who viewed it.'" Clark v. Community for Creative Non-Violence, 468 U.S. 288, 305 (1984).
Marshall was in the dissent and was actually advocating requiring more elements than the majority required. It seems clear that if nude dancing can be found to have a communicative elements, then performance artists or modern dance or a mime or a classical ballet artist will all receive First Amendment protection.
In short, do I believe a Martha Graham Ballet performance would be considered protected speech? Most certainly. Would nude dancing be closer to speech than running a printing press (i.e. commercial speech)? Let's leave that one for Scalia.
