Does True Dissent Need First Amendment Protection?

Well, for some it does.

Nate Harrison mentioned this to me on Monday, and Artforum has some succinct coverage on UC-San Diego Visual Arts Professor Ricardo Dominguez and his avant-garde shenanigans. It seems Dominguez “recently helped launch an ‘online sit-in’ against the website of University of California president Mark Yudof. The strategy had about four hundred participants visit Yudof’s website repeatedly for about ninety minutes, in an attempt to slow it down (similar to what is called a ‘denial of-service attack,’ which floods a website with traffic, freezing it), as a protest against budget cuts to the UC system and the administration’s priorities.”

Now, Dominguez is wanted for questioning by university administrators, while the professor has publicly defended himself by claiming the right of free expression.

Note to artists who think the First Amendment–in particular the free speech clause–gives artists carte blanche to take any action (including speech) against institutional powers without repercussion. It’s not so. There’s plenty of free speech doctrine in the US which limits the extent to which one can commit acts against another entity without repercussion. Brandenburg v. Ohio comes to mind (speech can be prohibited if it is “directed at inciting or producing imminent lawless action” and it is “likely to incite or produce such action.”)

Dominguez states, “A new form of art is not a crime.” Huh? Taking a gun and shooting elderly subway riders as performance art would probably constitute a “new form of art,” but I would have an awfully hard time convincing anyone, let a alone a judge or jury, that it’s not a crime.

I’m all for the testing of grey areas, including free speech doctrines, but what always irks me is when individuals (and some artists) claim to be outside of the law and yet when potential negative legal (and thus career) repercussions are on the horizon, retreat and cower behind the same laws they seem to abhor. Sonia K. Katyal and Eduardo Moisés Peñalver‘s book, Property Outlaws, is all about this. Either you break the law or you don’t. Can’t have it both ways: tenure and outlaw status. This is not to say that “breaking” the law cannot lead to a reformulation and reconstruction of laws, but unfortunately the only thing this is is a publicity stunt; one that will, ironically, take valuable UC System time and money to sort out, and in the end Dominguez will cry foul behind many other legal doctrines now available to him. My addage rings true: true dissent needs no First Amendment protection.

Artforum’s brief article here.