Barlow, John
March 2014
Loyola of Los Angeles Entertainment Law Review;2014, Vol. 34 Issue 1, preceding p67
Academic Journal
The framers of the United States Constitution drafted the First Amendment with the intent to codify one of the United States' foundational and immutable individual rights: the freedom of speech. While this freedom has remained a bedrock of constitutional law and a core value protected by the Court, it is not without its nuances and exceptions. The Government Speech Doctrine, a recently minted judicial concept, is one such nuance. The Doctrine states that when the government is the speaker the First Amendment does not restrict its speech, and it may disseminate particular ideas or discriminate against particular viewpoints. At its core, the Government Speech Doctrine is an attempt by the Court to balance the need of a functional government with First Amendment rights. The Doctrine, while attempting to navigate the tension between free speech and government activities, creates an interesting question: when does government involvement in speech make that speech an extension of the government and thus subject to the Government Speech Doctrine? The realm of publicly funded art is an arena where this question is particularly nettlesome. When the government or a governmental unit funds the creation of public artwork, who is the speaker? Is the government the speaker when it provides funding and space for the art? Does the government speech cease once the government has exercised its control in allocating funding to a particular artist for a particular work? Where does an intended government message stop and the expressive nature of art to provoke dialogue and convey multiple messages begin? How do you separate the vision of the artist from the views of the government and ascertain what in the artwork is government speech and what is private artistic speech? Where do the rights of the government end and the rights of the artist begin? This Article advances the novel argument that within the domain of removing publicly funded art from public display, the application of the Government Speech Doctrine is improper because of the current scope and policy considerations of the Doctrine, the mutable nature of art speech, and artist moral rights. As an alternative, this Article proposes a model statute legislatures should adopt that outlines an appropriate analytical framework for removing public art from public display that takes into consideration individual free speech rights, the government's right to control its own messages, the nature of art speech, and artist moral rights.


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