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What kind of artist are you? The jury is out

Post #1845 • September 13, 2019, 1:57 PM

John O. McGinnis of the site Law & Liberty analyzed the dissenting opinion of a case decided by the Eighth Circuit Court of Appeals recently. The court determined that the Commissioner of the Minnesota Department of Human Rights and the state's Attorney General did not have the privilege to force a company of Minnesota videographers to provide services to a gay wedding. I don't really comprehend the mentality behind either side of this fight. On one hand you have the reluctance to mix with homosexuals, on account of a religion based on the story of a man who would interact with absolutely anyone. On the other you have the desire to punish people who feel that way, using the legal system, which glues a cheap veneer of civilization on the act of pointing a gun at them. But I'm not going to get into that here. Instead I wish to draw your attention to what one judge wanted to do to artistic freedom in order to get the outcome she preferred.

Judge Jane Kelly, an appointee of Barack Obama who was mentioned as a possible replacement for Antonin Scalia, would distinguish between “independent artists” who enjoy full free speech protection and mere artisans like the Larsens [the videographers] who receive none.... Judge Kelly wants to ensure that her opinion does not require professional filmmakers like those in Hollywood to make films celebrating events they do not like. It is obvious that that such a requirement would violate the First Amendment. (It would not be in the progressive interest either, because almost all “independent artists” lean left). She distinguishes such independent artists from others because they choose their creative work. By contrast, she argues that the Larsens are in a business that purports to be open to all and lacks the characteristics that the First Amendment was created to protect.

As McGinnis points out,

To dismiss their work as conduct rather than expression because it involves placing cameras would be like saying the First Amendment doesn’t protect paintings because it involves “brushwork” or in blogging because it involves typing.... Kelly’s analysis creates class-based differences between those who enjoy the right to create expressions of their opinions and those who do not. Who is to judge who is an independent artist and who is just an artist for hire? Are independent artists not also influenced by a mix of ideological and commercial considerations in what they choose to film? Such a regulatory structure resembles a licensing regime, in which the government shapes who can speak, a practice that First Amendment was emphatically meant to reject.

The realistic way to understand this progressive version of free speech doctrine is that it wants to constrain a sector where inconvenient messages might be sent while continuing to empower the independent artist sector which can be counted on to send the “right” messages.

And that ought to bother you as a creative professional even if you side with the Bake The Damn Cake crowd. I'm referring of course to the opponents of Jack Phillips, the baker who won a Supreme Court case against the Colorado Civil Rights Commission over a similar fight. Again, if I were Phillips, I would make whatever cake somebody wanted, take their money, tell them that Jesus loves them, and go on with life. On the other hand, if I was an LGBTQ person in Colorado Springs, I would just take my business to another baker, for Pete's sake. What the activists are doing to him at this point looks like harassment, pure and simple. My grandfather worked as a baker in a delicatessen that he ran with a partner in Dallas for several decades. If somebody had ever gotten it in his head to ask my zayde to make him a Klan-themed birthday cake, I'd like to think that Grandpa would have had the freedom to tell him no, in certain and vehement terms.

Like many artists, I have executed commissions. Whether an artist working on a commission counts as one of Kelly's "independent artists" or a mere service provider, I have no idea. The text of the dissent (I have edited out the legal bits for clarity) reads,

A law telling an independent artist what pictures to paint or a newspaper what articles to publish would still be subject to strict [First Amendment] scrutiny. But an independent artist who chooses what to paint and then sells the finished product is not the same as a boardwalk cartoonist who offers his services to any passing beachgoer. If the cartoonist refuses to paint the portrait of an interracial couple or a woman in a hijab, the state’s regulation of that expressive conduct via a content-neutral statute does not trigger strict scrutiny.

Kelly, pointedly, doesn't cite a hypothetical case in which a boardwalk cartoonist refuses to draw someone wearing a cross around her neck, or a chai, raising a question of whether she opposes discrimination per se or mere non-progressivism. Now, if you want me to paint your portrait in a hijab, or a wedding portrait for your interracial marriage, I'll do it gladly and with pleasure. (In fact, please come to me with such commissions, they would thrill me.) I object, rather, to the idea that a courtroom jury should have the power to decide whether I more resemble an "independent artist" or that unfortunate boardwalk cartoonist, unfortunate because Kelly thinks that his First Amendment rights don't apply to his work. McGinnis concludes:

The “chilling effects” doctrine suggests that any concerns about the vagueness of the operation of law count against it for free speech purposes. Thus, judges will strike down entire laws that cover non-speech as well as speech activities. The fear is that even if a law has some legitimate applications on non-speech activities, its overbreadth will make people fear to exercise their free speech rights. Expressing concern that some non-free speech activity might conceivably benefit from a judicial decision protecting free speech stands that concern on its head. Judge Kelly’s dissent again demonstrates the growing willingness of progressives to abandon their historic concern with the right of everyone to express themselves.

Hence why I bring this up. Most artists share that progressivism, and a sentiment lurks within it to plant a knife in the back of the Bill of Rights in order get progressive outcomes. That will leave us with neither rights nor progressive outcomes, because people know by instinct that you're pointing a gun at them, even if you're using the legal system to do it for you. They will find a way to aim back, I promise. (Just look at who occupies the Oval Office.) Better to heed Henry Miller in Stand Still Like the Hummingbird:

Precept and example seem to have had little effect: basically the civilized man is little different from primitive man. He has not accepted the world, neither has he shown any desire to partake of the reality which invests it. He is still bound to myth and taboo, still the slave of the victim of history, still the enemy of his own brother. The simple, obvious truth, that to accept the world is to transform it, seems utterly beyond his powers of comprehension....

Living apart and at peace with myself, I came to realize more vividly the meaning of the doctrine of acceptance. To refrain from giving advice, to refrain from meddling in the affairs of others, to refrain, even though the motives be the highest, from tampering with another's way of life - so simple, yet so difficult for an active spirit! Hands off! Yet not to grow indifferent, or refuse aid when it is sincerely demanded. Living thus, practicing this simple way of life, strange things occurred; some might call them miraculous. And from the most unexpected quarters astonishing, most instructive lessons....

A tall order, I admit, but what are we doing as artists if not trying to find a better way to perceive things? Until the astonishing lessons arrive, may heaven bless every passing beachgoer on the boardwalk.




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