Andrew Jensen Kerr, Georgetown University Law Center, is publishing Aesthetic Play and Bad Intent in Minneosta Law Review Headnotes (2018) (forthcoming). Here is the abstract.
Threatening words or images are assumed by American courts to be non-art. But this threshold question of art status is complicated by the evolution of rap and performance art. There is no articulable way to discern art from non-art for these non-textual media, a problem compounded in the unique context of the Internet. In civil litigation we can resort to institutionalist tests like audience reception. But mens rea matters in criminal prosecution. I favor judicial pragmatism in what I argue here is a very non-legal area of law.Download the article from SSRN at the link.