Once again, we see a liberal academic, a well-credentialed law professor, suggest that we further cede our private property rights to the state and provide vandals with a free pass for their graffiti – under certain conditions, of course.

As reported in Newswise …

If someone spray paints a stunningly beautiful landscape on the side of a railroad car, is he an artist or a vandal? What about hundreds of people freezing at once in a busy train station? Is that whimsical art or interference with the public?

Legal system grappling with issues?

The law is pretty clear, defacing the property of another is a crime as is accessing restricted property to commit the offense. So why should anyone waste time and effort on even considering the breaching of these legal constructs? Unless the person considering the issue is an asshat, a law professor seeking to obtain media face time in order to promote a destructive political ideology or a recently published book?

“Those are questions that the legal system is grappling with as artists take their work further into the public domain and redefine the nature of art itself. In response, University of Iowa law professor Randall Bezanson thinks artists should be given greater legal leeway in the use of public and private space. Calling it ‘trespassory art,’ he is urging courts to interpret the law in such a way that protects artists from trespassing, nuisance and other laws and ordinances.”

Not only is Randall Bezanson a clear and present danger to a society that respects property rights, he makes a mockery out of the legal profession.

Who is to define “public art?”

Consider the established school of modern art – where opinions of artistic merit range from worthless trash to priceless collectables. Who is to say that the graffiti on a wall is art or an eyesore? The courts? The jury? Or that a public performance is somehow worthy of the disruption of the lives of the people who are forced to witness the act? Do we not have more pressing legal issues facing our nation in this time of economic and social crisis?

"’Property laws make it difficult for public art to truly flourish, relegating it instead largely to museums, galleries, performance halls and buildings,’ said Bezanson. ‘These limitations affect the culture in which we live and the opportunities for creative expression in the public mind.’”

Bezanson cites proper venues with controlled access and legal protections – making it clear that he knows right from wrong – yet goes ahead with his cockamamie suggestion.

“Bezanson said trespassory art seeks to borrow visual legitimacy from a message -- whether the message comes from a billboard or a can of vegetables -- and incorporate the message into a new message of the artist's making.”

Is this another liberal's psychobabble of political correctness where everyone’s expression of art  – no matter how crazy – seem to have some measure of worth? Or is there a legitimate issue to explore?

“He said trespassory art requires the use of a certain public or private space because the art can be created only on that specific space, so that it takes the form of anything from modifying a billboard to milling about a store to climbing a building.”

Billboards are private property subject to contract law. To allow anyone to deface a billboard with legal impunity is madness. Likewise, climbing a building may expose the building’s owners, the occupants and the public to extreme risks. And who will pay for the unintended consequences of artistic expression gone awry? The law professor? The courts? The public?

"’We should open a space for art when it produces no actual harm, a place where artistic value to the public can be shown, and where justification for the trespass must be tied to the true nature of art,’ he said. ‘A place where what is done is clearly an act of art and cannot be confused with the ideas or tastes of the owner of the property.’"

This crazy professor acknowledges that an artist must trespass on private or public property and allowed to deface the property of another in order to create and complete their artistic vision; sheer lunacy! Am I to believe that I, as a citizen of the United States and a respecter of the law, must submit to the willful rape of my rights?

“’Unfortunately, he said trespassory artists frequently run afoul of laws and ordinances that leave no exception to invade property for the creation of art. Perhaps the most noteworthy example is Spencer Tunick, who specializes in photos of thousands of nude people at once in a single place. Although his work is neither graphic nor explicit, he has been arrested several times for violating public indecency ordinances in places like Cleveland and Buffalo, NY.”

Perhaps the law was written to protect the rights of individuals who should have the right to remain unmolested by those who want to use the unwilling individual’s assets, be they time and/or space, for their own artistic visions.

The problem with society is lawyers …

Since when does the law demand a private citizen cede their rights for the benefit of another private citizen? In fact that’s what the argument about the Kelo Supreme Court decision is about: the confiscation of private property by the state, belonging to an individual and being conveyed to another private individual ostensibly for a public purpose rather than a public need.

“Other skirt-the-law artistic movements modify billboards to make political or social statements (‘McDonald's-better living through chemistry’), or put stickers of traditional artwork on containers in stores, say, a Picasso on a can of peas.”

The examples provided by the professor clearly demonstrate the damage to a commercial enterprise – a cost which cannot be calculated and recovered from the individual who perpetrated the act.

Anarchy?

"’The point of the artist is to subvert commercial space for artistic use in an attempt to disrupt the mundane commercial process with a purely artistic moment,’ Bezanson argues in his paper, ‘Trespassory Art’" which will be published in a forthcoming issue of the University of Michigan Journal of Law Reform. The article was co-written with Andrew Finkelman, a UI law graduate and current assistant U.S. attorney in Washington, D.C.”

What if such works contain an inherent message: a commercial one (publicity for the artist) or a social one (become a vegan) that is intertwined with the artistic value of the work? Should this person not pay to exhibit or perform their work as do the great multitude of conventional artists?

I wonder if this work is just another scholarly misadventure into speculative legal matters or another example of a liberal, activist agenda with deep societal consequences and the further erosion of our rights, liberties and freedoms?

“Bezanson is one of the first legal scholars to explore the legal intersections of art and the constitution, and his book ‘Art and Freedom of Speech,’ which will be published in September, explores the protections afforded to artists. Bezanson said artistic expression is tricky from a legal perspective because, unlike speech and press, it's not specifically protected by the First Amendment.”

The truth emerges …

Bezanson not only acknowledges that art is not specifically protected by the Constitution, but we find that he is promoting his book. Perhaps hoping to profit from the controversy it may generate?

"’The guarantee of free speech has historically been interpreted to protect only reasoned and cognitive forms of expression,’ said Bezanson, whose book was published this month and is available from the University of Illinois Press ‘But art is frequently neither of those. It is often emotional and sensual, and does not simply make an appeal to our reason. As Plato put it, art is dangerous because it looses emotion and imagination in unpredictable ways.’"

Where is the line between art and the law on disruptive public performances which result in the inconvenience to innocent bystanders or in actual, provable damages?

Don’t ask me to agree to your craziness or accept the inconvenience it produces …

“Another artistic movement generating public buzz is ImprovEverywhere, which films its ‘exhibits’ and puts them on YouTube. The group takes a whimsical approach to public art by, for instance, having hundreds of its ‘agents’ freeze at once in Grand Central Station and hold their position for five minutes, or sending dozens of agents into a Best Buy store wearing the same blue shirts and khaki pants as the company's customer service employees.”

"’The Grand Central stunt created an enchanting agglomeration of movement and stillness, a high-tech version of the beauty and energy of a Kandinsky painting at the expense of the New York Metropolitan Transit Authority,’ Bezanson and Finkelman write. ‘It may have been beautiful, intriguing or just plain odd, depending on who you ask.’"

Should a modern day self-proclaimed Michelangelo be allowed to paint the unadorned ceiling of a church without permission and without consequences?

“Bezanson said that because such art has inherent value, the courts should change the legal framework of trespassing and nuisance laws when dealing with trespassory art. He argues that courts should make room for this valuable, evolving form of artistic expression by denying the right of property holders to collect damages from trespassory artists unless the property owner can demonstrate the art caused them actual harm.”

One, who is to say any art has an inherent value which supersedes the rights of those who unwillingly supplied the medium or the exhibition space to the detriment of their rights, liberties and freedoms? And two, any property owner may demonstrate actual harm and provable damages – all arising from the clean-up efforts required to restore the property of its legal and rightful owner to its condition prior to defacement.

How do you prove a negative? How does one prove the artistic merit of a piece; take a poll of liberals and/or art snobs?

“Bezanson said his idea won't give license to vandals or trespassers to cause whatever damage they want to another person's property and be free of legal liability by calling it art. He said an artist would have to demonstrate that his or her art had to be exhibited in a specific place in order to have any artistic impact for it to be declared trespassory art.”

"’Much of trespassory art is site specific, so that the meanings of their utterances, actions and events are affected by their local position, by the situation of which they are a part, and defined in relation to its place and position,’ Bezanson and Finkelman write. ‘Site specificity explains why alternative avenues for communication, such as parks or sidewalks, may in fact be no alternative."

Anyone with common sense would ask, why this venue? And the answer is likely to be related to the number of people who will see the work, rather than the nature of the work itself. Thus the decision would be made only on the availability of an audience or the possibility of further media attention – nothing intrinsic to the artwork itself – as art does not demand to be seen or performed. Thus we can surmise that the motives of the artist are more important than the message conveyed in the artwork.

If I have an overwhelming desire to deface a wall in the Congress with the self-explanatory word “bullshit” followed by an seemingly endless row of exclamation points trailing off into a perspective point – should my work be left in place? Even if it is offensive to some? Even though it subverts the intent of the original architect and owners of the building? The message is clear and probably widely acknowledged as true.

“For instance, he said sending several dozen ImprovEveryhere members wearing Best Buy uniforms into a Wal Mart would lack the whimsical impact of those people walking around a Best Buy. In fact, it would probably have no impact at all.”

“Bezanson's proposal to create this limited privilege for artists does not leave property holders without complete redress. He said that artists who damage property with their unauthorized art can be required to pay for the damage, and artists who refuse to remove their art from private property can be required to do so by the property owner.”

So are we to believe that the artwork is of a transitory nature and that the property owner does have rights?

“But Bezanson believes that if no actual harm comes to the property owner, the value of the artistic statement should override the owner's property-holding rights. He admits that such an approach would be ‘messy and controversial,’ but said the impact on public art is worth the effort.”

Bottom line …

I can only conclude that the authors are self-promoting liberal activists who believe that an individual’s property rights, as defined, conveyed and protected by the law, are somewhat subservient to the needs of a society who must recognize an artist’s work or the needs of an artist to provide his work to the public. This makes absolutely no sense, upsets the rights, liberties and freedoms of private property owners, further contributes to a state of anarchy and is a clear and present danger to our present societal system.

While I have mocked Professor Bezanson for his particular opinion on “trespassory art,” I would like to acknowledge that he is a man of significant legal accomplishment and standing within the legal profession. Which in no way mitigates my opinion that his suggestion is crazy and should be discarded in the dustbin of failed legal theories.

-- steve

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OneCitizenSpeaking: Saying out loud what you may be thinking …

Reference Links:

UI law professor suggests giving legal leeway to ‘trespassory artists’

Randall P. Bezanson; David H. Vernon Professor of Law