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AESTHETIC JUDGMENT in LAW Brian Soucek* ABSTRACT

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AESTHETIC JUDGMENT in LAW Brian Soucek* ABSTRACT 3 SOUCEK 381-467 (DO NOT DELETE) 11/14/2017 8:30 PM AESTHETIC JUDGMENT IN LAW Brian Soucek* ABSTRACT .................................................................................................. 382 INTRODUCTION .......................................................................................... 382 I. AESTHETICS THROUGHOUT THE LAW .................................................... 387 A. Public Funding ........................................................................ 389 B. Taxes and Tariffs ..................................................................... 396 1. Taxes .................................................................................. 396 2. Tariffs ................................................................................. 404 C. Land Use .................................................................................. 412 D. Obscenity ................................................................................. 419 E. Intellectual Property ................................................................ 426 1. Copyright Infringement ..................................................... 427 2. Fair Use ............................................................................. 431 3. Beauty Versus Utility ......................................................... 437 4. VARA ................................................................................. 442 II. THREE ARGUMENTS AGAINST AESTHETIC JUDGMENT ......................... 446 A. Judicial Competence ............................................................... 448 B. Relativism ................................................................................ 450 C. Freedom of Expression ............................................................ 456 III. WHEN TO ALLOW AESTHETIC JUDGMENT .......................................... 458 CONCLUSION .............................................................................................. 466 * Acting Professor of Law and Martin Luther King, Jr. Hall Research Scholar, University of California, Davis School of Law; J.D., Yale Law School; Ph.D. (Philosophy), Columbia University. I am grateful for comments I received at the 2016 Harvard/Stanford/Yale Junior Faculty Forum (especially those of my commentators, Bruce Ackerman and Richard Thompson Ford); the 2015 Yale Freedom of Expression Scholars Conference (where my discussant was Kate Klonick); UC Irvine’s faculty workshop; the 2014 Annual Meeting of the American Society for Aesthetics; the Questioning Aesthetics Symposium at the Rhode Island School of Design; the Art and Law Program run by Sergio Muñoz Sarmiento and Lauren van Haaften-Schick; and the East Bay Junior Scholars Workshop. I have benefitted greatly from discussions with Andrew Gilden, Lydia Goehr, Michael Kelly, Felix Koch, Gregory Magarian, Jonathan Neufeld, and my colleagues at UC Davis School of Law, especially Mario Biagioli, Ashutosh Bhagwat, Alan Brownstein, Tom Joo, Carlton Larson, Peter Lee, Madhavi Sunder, Darien Shanske, and Aaron Tang. I have also relied on generous funding from Dean Kevin Johnson and the Martin Luther King, Jr. Hall Research Fund; the very able research assistance of King Hall students Karl Lindemann, Jane Martin, Reema Pangarkar, Kelsey Santamaria, Nick Sweeney, and Katherine Wittlake; and help from law librarians Elisabeth McKechnie and Peg Durkin. 381 3 SOUCEK 381-467 (DO NOT DELETE) 11/14/2017 8:30 PM 382 Alabama Law Review [Vol. 69:2:381 ABSTRACT Almost no one thinks the government should decide what counts as art or what has aesthetic value. But the government often does so, and often, it should. State actors—from judges and legislators down to customs officials and members of local zoning boards—make aesthetic judgments every day, in areas ranging from tax and tariff law to obscenity and public-funding decisions, from historic preservation and land-use regulations to copyright, trademark, and patent law. This Article details the breadth and surprising philosophical depth of the law’s engagement with aesthetic questions. And bucking conventional wisdom, it argues that in many areas of law, government should define artistic categories and promote aesthetic values. The usual reasons for treating aesthetic judgment as what Justice Holmes famously called a “dangerous undertaking” turn out to be bad ones. Arguments based on the expertise of judges or the subjectivity of aesthetic judgment are not just unconvincing, they are in tension with one another. And the one persuasive argument—derived from the First Amendment’s prohibition on government-imposed orthodoxies—applies only as far as the First Amendment itself does. This Article offers a framework for deciding when the First Amendment limits aesthetic judgment in law. And in doing so, it also identifies appropriate sites of aesthetic judgment—places where we need more open debate about the substantive aesthetic values we want the law to endorse. INTRODUCTION Aesthetic judgment pervades the law. In the tax code and tariff system, in obscenity cases and public-funding choices, in connection with zoning, land use, and eminent domain, and throughout intellectual property law, judges and other government officials are constantly deciding what is art, or what counts as artistically or aesthetically valuable. Yet it is almost universally said that aesthetic judgment has no place in the law. As Justice Holmes wrote over a century ago, and courts and scholars have never tired of repeating: “It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations.”1 Holmes’s so-called 1. Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251 (1903); see also Pope v. Illinois, 481 U.S. 497, 505 (1987) (Scalia, J., concurring) (“For the law courts to decide ‘What is Beauty’ is a novelty even by today’s standards.”). 3 SOUCEK 381-467 (DO NOT DELETE) 11/14/2017 8:30 PM 2017] Aesthetic Judgment in Law 383 aesthetic neutrality2 or nondiscrimination3 principle has now become dogma. But the dogma is wrong. This Article takes it on, first, by showing that aesthetic judgments are far more common, and in more areas of law, than is generally acknowledged. Previous articles have made a start at this.4 But this Article goes significantly further by describing the deep contextual and even philosophical specificity of these judgments, and then by using this thickly descriptive account of how and where aesthetic judgments are made in law to support a normative claim: that, often, aesthetic judgments should be made. The widespread aversion to aesthetic judgment rests on a misunderstanding of the kinds of judgments that actually get made, of the competence of various legal actors to make them, and of the nature of aesthetic judgment itself. By clearing away these misunderstandings, this Article focuses instead on the one important constraint that remains—the First Amendment—and aims to make space beyond its limits for debate about what substantive aesthetic values the law should endorse. By “aesthetic judgment in law,” I am referring to all laws or governmental decisions that endorse particular aesthetic or artistic values or concepts. To be sure, this is a capacious understanding of both “aesthetic judgment” and “law.” In what follows, “law” describes the work not just of judges, but also of legislators, agency officials, and other state actors, from members of local zoning boards to government webpage designers; “aesthetic judgment,” meanwhile, refers to their resolution of any disputable question about what is art, or what constitutes or possesses 5 aesthetic or artistic value. 2. See John Tehranian, Dangerous Undertakings: Sacred Texts and Copyright’s Myth of Aesthetic Neutrality, in THE SAGE HANDBOOK OF INTELLECTUAL PROPERTY (Matthew David & Debora Halbert eds., 2014) (describing copyright jurisprudence as ostensibly committed to aesthetic neutrality principles); see also Andrew Tutt, Blightened Scrutiny, 47 U.C. DAVIS L. REV. 1807, 1825–26 (2014) (defining aesthetic neutrality as freedom from aesthetic judgments of the state). 3. See, e.g., Carol Barnhart Inc. v. Econ. Cover Corp., 773 F.2d 411, 415 (2d Cir. 1985); Keith Aoki, Contradiction and Context in American Copyright Law, 9 CARDOZO ARTS & ENT. L.J. 303, 306– 07 (1991); Brian L. Frye, Aesthetic Nondiscrimination & Fair Use, 3 BELMONT L. REV. 29 (2016); Robert A. Gorman, Copyright Courts and Aesthetic Judgments: Abuse or Necessity?, 25 COLUM. J.L. & ARTS 1, 1 (2001); Ned Snow, The Regressing Progress Clause: Rethinking Constitutional Indifference to Harmful Content in Copyright, 47 U.C. DAVIS L. REV. 1, 34 (2013); Rebecca Tushnet, Judges as Bad Reviewers: Fair Use and Epistemological Humility, 25 LAW & LITERATURE 20, 29 (2013) (“[N]ondiscrimination is a fundamental principle of modern copyright law: courts are not supposed to be art critics.”). 4. The most comprehensive of these are Christine Haight Farley, Judging Art, 79 TUL. L. REV. 805 (2005) and P.H. Karlen, What Is Art? A Sketch for a Legal Definition, 94 L.Q. REV. 383 (1978). Most other articles focus only on aesthetic judgment in one particular area of law. These are cited in the relevant Subparts of Part I infra. 5. I am thus using “aesthetic judgment” to include, but go well beyond, the sort of judgments generally given that name in philosophy: i.e., judgments of the form “x is beautiful.” See, e.g., IMMANUEL KANT, CRITIQUE OF THE POWER OF JUDGMENT (Paul Guyer ed., Paul Guyer & Eric 3 SOUCEK 381-467
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