Visual Art

Paintings, sculptures, prints, installations, drawings, and photography are all considered protected speech under the First Amendment. Even so, conflict arises based on objections to the religious, sexual/nudity, or political content of the artwork.

One of the most prominent debates surrounding free expression in the arts in recent years has focused on public funding for work considered controversial. However, while the government may decide to not fund art at all, if it does decide that government support of the arts is essential, it cannot fund only art that expresses a viewpoint government officials like. In brief, the government may not fund art in a way that discriminates based on viewpoint. (Public funding for the arts has a bipartisan support in congress – art has been proven to provide jobs, invite tourism and otherwise contribute positively to the economic development of a community, as well as improve its cultural image and quality of life.)

Another set of issues that come up around the freedom to show one’s work relate to the venue where the work is shown. Art in public spaces is a highly visible part of our daily environment and requires negotiation and regulation that maintains a balance between an individual’s constitutional right to free speech and public harmony and welfare. Art in public buildings presents issues of public forum classification and curatorial discretion.

What happens when an art work, which a city has commissioned an artist to create, is destroyed? Artists have some statutory protection over their “moral rights” in their work from the federal Visual Artists Rights Act of 1990 (VARA). It provides for rights of attribution and to prevent or provide remedy for any modification or destruction of the work.