Adler on Art's First Amendment Status @nyulaw

Amy Adler, New York University School of Law, is publishing Art's First Amendment Status: A Cultural History of The Masses in volume 50 of the Arizona State Law Journal (2018). Here is the abstract.

This Article explores a little-known chapter in the cultural history of The Masses, the radical, iconoclastic, and artistically cutting-edge publication that was the subject of Learned Hand's landmark First Amendment decision in Masses Publishing Co. v. Patten (1917). The Article sets forth the story of an internal battle about freedom of expression in the arts that had shaken The Masses to its core in the year leading up to Hand's famous decision. The Masses was founded on two central premises: first, that absolute freedom of expression was necessary for its mission; and second, that art and politics must be inextricably intertwined in pursuing this mission because creativity was itself an act of political rebellion against capitalism. Yet this marriage between art and politics was a fragile one; indeed it collapsed in the year before Hand's opinion, as editors tried to constrain the political messages of the artists, leading to an artists' strike that forever changed the magazine. At stake in this conflict were urgent questions about the nature of art and the relationship between art and politics. Ultimately the magazine devoted to free speech and free artistic expression - the magazine that would later be pursued by the government for speaking too frankly - set limits on the free expression of its own artists. By exploring the artistic significance of The Masses and by unearthing this internal censorship battle at the magazine, my goal is to show how the conflict over art at The Masses presaged contemporary debates about the role of art in the First Amendment. The bitter internal struggle over freedom of expression at The Masses anticipated a longstanding problem in free speech law: how do we justify protection for art, often apolitical, irrational, and hard to reduce to a "particularized message," under a vision of the First Amendment that prizes political discourse and assumes a rational marketplace of ideas. The history of The Masses sheds light on our ongoing discomfort about the place of art in the First Amendment.

Download the article from SSRN at the link.