Kant and the First Amendment

The First Amendment guarantees that "Congress shall make no law . . . abridging the freedom of speech." One common question, then, is what constitutes speech? The easy answer would be any form of oral utterance. But that's simulataneously too broad and too narrow. There are some utterances, like nonsense, which are obviously not what the First Amendment is meant to protect. And there are some things, like political tracts, which are not oral utterances, but seem like they should fall under the First Amendment. So, painted very broadly, most people speak of the First Amendment as protecting 'expressive activity'. But this is also problematic (though mostly because most law professors/judges are not aestheticians).

Take erotic dance. For some reason, states like to regulate erotic dancing. Proponents of these sorts of measures like to argue that erotic dance isn't really art, it's more like pornography. Why isn't it art? Well, it doesn't express any message. It's just naked people moving around. But that fundamentally misunderstands the way in which art communicates its 'message'.

Art is not like political tracts. Political tracts put forth, or attempt to put forth, a single, unambiguous message. But art doesn't do that. Art, or at least good art, tends to communicate aesthetic ideas, and it does that by giving rise to the free play of the imagination. So it is wrong to say that something isn't art because it's hard to say what 'the' message is. Art is art precisely because it does not have a message, but because it stimulates the imagination. And this is true whether we're talking about erotic dance or a picture of some fruit.

So we need to be careful, in thinking about regulating expressive conduct, that we don't toss out some conduct just because we're not sure what good it does. There's an awful lot of art and literature, things people generally agree are art and literature, where people aren't really sure what good it does. But because we generally believe that this sort of thing is good, and because with a bit of study we know that it's good because it gives rise to the free play of the imagination, we shouldn't get rid of something just because we personally happening not to like it.