By Natalia Holliday, Web Editor
“Creativity is the power to reject the past, to change the status quo, and to seek new potential. Simply put, aside from using one’s imagination – perhaps more importantly – creativity is the power to act.” —Ai Weiwei
The year Chinese artist Ai Weiwei was born, his family was exiled. It was 1957, the midpoint between the founding of the communist Peoples’ Republic of China in 1949 and the official launch of the “purifying” Chinese Cultural Revolution in 1966, during which intellectuals were targeted as “bourgeois” and 1.5 million people were killed.
Ai’s father, Ai Qing, was a targeted intellectual for his profound body of poetry, much of which he had composed some years prior while imprisoned on the charge of suspected leftist leanings by the previous Nationalist regime. Ai spent the first 20 years of his life in exile with his father and mother, a writer named Gao Ying, while his father worked hard labor under the reign of Chairman Mao Zedong’s Communist Party. During his childhood, Ai learned to make furniture and bricks, and his only source of education was the single book the family was permitted to keep: an encyclopedia.
In spite of these conditions, Ai developed the same artistic and political backbone as his parents. When the family was finally released from exile in 1976, on the death of Chairman Mao, Ai began to become one of the most famous, and persecuted, modern political artists of our time.
“Art has become a synonym for the destruction of art.” —Bruno Latour
Ai’s 1995 piece, Dropping a Han Dynasty Urn, is a three-panel sequence of photographic images. In the first, Ai holds up a 2,000-year-old Han Dynasty urn as if to show it off, challenging the camera with a “confrontational and unapologetic blank stare.” In the second, he has released the urn and it is midair in front of him, the same expression on his face. In the third, the urn has shattered and lay in pieces at his feet. His expression does not change.
In 2014, Dropping a Han Dynasty Urn was on display at the Pérez Art Museum Miami as part of a retrospective on Ai’s work. In a symbolic gesture, 51-year-old local artist Maximo Caminero walked into the retrospective, picked up a painted urn (from Ai’s later work, Colored Vases, in which Ai painted Han Dynasty urns to look like cheap store-bought vases), and dropped it while standing in front of the above-referenced triptych.
Caminero claimed the act was in protest of the museum’s decision to display an international artist over a local, community artist. The museum referred to the act as “destructive,” “vandalism,” and “disrespectful to another artist and his work.”
In their essence, the two acts are nearly identical. An artist acquires a beloved piece of art. The artist is bothered by the piece of art for something fundamental that it represents. The artist believes that what it represents must be challenged. The artist challenges it by destruction. Each act takes a shockingly brief amount of time — shocking in large part due to the deep sense of reverence developed for each of the original pieces.
One act is marked as one of that artist’s defining moments; the other got the second artist a third-degree felony for which he managed to get probation.
From an American perspective, the acts provoke considerations of property rights and freedom of expression. There is an almost automatic sense of sheer discomfort when one thinks about destroying deeply loved and widely respected art. Yet, an equal sensation is stirred, one in defense of the right to destroy your own property or the right to protest. When an artist creates by way of destruction, what laws apply — and to what extent?
“If there is no free speech, every single life has lived in vain.” —Ai Weiwei
Of course, a significant draw in American property law is the freedom to do what you will with an item in which you hold absolute title. The “bundle of rights” we come to know and love during first year in law school traditionally includes the right to transfer. the right to exclude, the right to use, and the right to destroy.
Yet, the Visual Artists Rights Act of 1990 (VARA) established stringent limitations on that freedom as it applies to works of visual art. The limitations are called “moral rights,” and they recognize the naturalistic and noneconomic rights the author of visual art has in his or her own creation. Section 106A(a)(3)(B) of the Act provides, in relevant part:
“[The] author of a work of visual art…shall have the right…to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.”
The duration of the rights conferred under § 106A(a)(3)(B) is the life of the author.
While controversial, the “moral rights” provided by VARA are fairly straightforward to the usual art buyer, who may wish to display the piece in her own home or lease it to museums, but what if the purchaser is an artist or activist himself? What if he purchased the piece specifically to obtain the right to destroy it? VARA places limits on his property rights, but what about his First Amendment rights?
“Congress shall make no law . . . abridging the freedom of speech.” A key point, perhaps the “bedrock” of the First Amendment, is that a government cannot oppress speech because society finds the idea behind it to be offensive or disagreeable.
The threshold question in this inquiry is whether destruction even constitutes speech, let alone whether it is protected. While recognizing the validity of some conduct as speech, the Supreme Court rejected the notion that there exists a “limitless variety of conduct” that may constitute “speech,” even if the conduct is intended to express an idea.
In Spence v. State of Washington, the Supreme Court examined whether the appellant’s act of hanging an upside-down American flag embossed with a peace symbol constituted speech. “To be sure,” the majority stated, “appellant did not choose to articulate his views through printed or spoken words. It is therefore necessary to determine whether his activity was sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments.”
To determine whether the appellant engaged in a form of “protected expression,” the Spence Court considered the symbolism of the device, the context of the act, and the intent of the act. There, the Court found that flags are historically symbolic devices utilized to convey messages. Furthermore, the fact that the act was triggered by the recent U.S. invasion into Cambodia and the subsequent shooting of Kent State University students by the Ohio National Guard satisfied the context element. The Court noted the significance of an “unmistakable message about a contemporaneous issue of intense public concern” in its evaluation.
The Court’s final point was to recognize that simple nihilism did not drive the appellant to act; rather, it was a “pointed expression of anguish” and an “intent to convey a particularized message” that, in light of current events, would likely be easily understood by its viewers.
A finding of “expressive conduct” permits the invocation of First Amendment review. Generally, in a case where a statute is challenged as violating a constitutionally enumerated right (such as freedom of speech), the Court applies the “strict scrutiny” test first suggested in the infamous Footnote 4 of U.S. v. Carolene Products to determine the validity of the statute. Under strict scrutiny, the Court examines whether the statute is narrowly-tailored to serve a compelling governmental interest, and that no less restrictive means of serving that compelling governmental interest exist.
The Court in United States v. O’Brien supplied a slightly varied method of evaluating a government’s ability to regulate “conduct” in this context. On a finding of “expressive conduct,” the Court looks to the State’s regulation to decide whether it is “related to the suppression of free expression.” If it is not, and the government regulation passes the strict scrutiny test, the regulation is “sufficiently justified.” Indeed, “when ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.”
If it is related to the suppression of free expression, the statute falls within the purview of rigid and exacting First Amendment review. So, where on this spectrum does an act of destruction fall? And can it be protected? The O’Brien Court considered the infamous draft card burner. The statute in question prohibited the knowing mutilation or destruction of a Selective Services registration certificate (a draft card). Off the bat, the Court rejected any contention that the statute abridged free speech on its face, comparing it to a motor vehicle law prohibiting destruction of a driver’s license. It instead addressed petitioner’s argument that the statute was unconstitutional as it applied to him because his act was “symbolic speech” — a demonstration of his anti-war sentiment with the hopes of convincing others to “reevaluate their positions with Selective Service” — and so protected by the First Amendment.
It was here where the Court precluded a “limitless variety of conduct” that may constitute speech. That is not to say that burning the draft card did not constitute speech. Instead, attention must be given to both the communicative and noncommunicative aspects of the conduct, as well as the above test to determine whether the statute may be upheld in spite of any incidental restriction placed on protected speech. Here, the Court found that the statute met the elements of the test and was therefore sufficiently justified, thus foreclosing the petitioner’s First Amendment argument. The Government’s constitutional power to enact laws necessary and proper to raise and support the military is “broad and sweeping,” and the prohibition against destroying registration certificates furthered a legitimate and substantial interest in proper administration of that power.
No less-restrictive alternative was available to further that interest — namely, the interest in a smooth and efficiently functioning Selective Services System. The interest itself was noncommunicative, and so the statute applied only to the part of petitioner’s conduct that was noncommunicative. In the end, he was convicted only for the noncommunicative aspect of his conduct — frustrating the legitimate governmental interest by burning his draft card — and rightfully so, the Court concluded.
A second act of destruction addressed by the Court was flag-burning during the 1984 Republican National Convention. While again recognizing the almost inherent expressive content of a flag (“Pregnant with expressive content,” as Justice Brennan put it), the Court in Texas v. Johnson held back from treating all conduct involving the flag as expressive. Rather, it analyzed the conduct under the same test as proffered in Spence, finding “[the] expressive, overtly political nature of [the] conduct . . . both intentional and overwhelmingly apparent.”
The communicative nature of an act does not, however, engender boundless protection under the First Amendment. Again, the governmental interest in regulating the non-speech element of conduct must be weighed to decide whether the incidental restriction imposed on expression is nevertheless valid.
In this case, the State set forth two interests backing its criminal conviction of the petitioner — preventing the breach of peace and “preserving the flag as a symbol of nationhood and national unity.” The Court found no support in the record for the breach of peace interest, and it found the preservation of unity interest to be directly related to the suppression of free expression. With that relation, the analysis went outside the scope of the O’Brien test and instead entered the realm of First Amendment review. Without going into an elaborate discussion of the many contours of a First Amendment review, it may simply be stated that the statute at issue failed under the strict standard, and petitioner’s criminal conviction was duly reversed.
In United States v. Eichman, the U.S. Government invited the Court to reconsider its stance on flag-burning as protected expression. The Government suggested that flag-burning instead be considered in the same vein as fighting words and obscenity, which do not enjoy the full protection of the First Amendment. The Court declined to restrict the constitutional protections on flag-burning and reaffirmed its decision in Johnson.
“Opinions alter, manners change, creeds rise and fall, but the moral law is written on the tablets of eternity.” —Lord Acton
This review of law is by no means exhaustive. Conspicuously absent is any consideration of how Ai or Caminero might have validly appropriated their items of destruction, or whether their acts simply constituted conversion. But consider their acts in light of VARA and VARA in light of the decisions both upholding and rejecting purported government interests. Are the “moral rights” promulgated under VARA enough to withstand strict scrutiny and the incidental restriction on free speech VARA could create?
Moral rights find their origins in nineteenth- and early twentieth-century Europe, with France regarded as the leader of their furtherance. They acknowledge the work of an artist not solely as a separate, economic item created by the artist but also as an extension of the artist himself. As such, they have been compared to such rights as right of personality and personal civil rights. Art is also held to be distinct and special, something deserving of greater protection than your average “thing.” Moral rights have been said to protect “the superior interests of human genius.”
China also recognizes moral rights but backs them with utilitarian justifications, such as the promotion of the prosperity of socialist culture and dissemination of those values. (This in mind, consider again the fact that Ai is one of the most persecuted artists of modern times.)
The United States enacted VARA after it joined the Berne Convention for the Protection of Literary and Artistic Works in 1988. Part of the nation’s adherence to Berne required the recognition of specific moral rights, despite intense opposition by publishing companies and the entertainment industry. Because of this opposition, the rights in VARA are strictly limited, to the point that some commentators express anguish over the exclusion of certain “voices” by the Act, such as writers, performers, and joint authors. It has been suggested that VARA only passed because it was attached to a desirable bill that authorized 85 new federal judgeships, further demonstrating the less-than-favorable climate behind the Act. At least one commentator refutes the value of moral rights, suggesting that opportunity to modify, mutilate, and destroy art is a necessary and proper aspect of art.
But, back to the inquiry of both the destructive acts and VARA’s validity against the above discussed law. Assuming both Ai’s and Caminero’s acts soundly constitute “expressive conduct” the next step is to apply the O’Brien test.
First, we consider whether the governmental interest in VARA is related to the suppression of expression. The stated interest of the Act is the protection of an artist’s right of attribution and integrity, or moral rights. The Act likely passes this first test, as it does not suppress free expression under every single application. Rather, suppression is incidental, arising in cases like Ai’s and Caminero’s. The next step is the strict scrutiny analysis. Is protection of an artist’s moral rights such a compelling government interest that the incidental restriction on free speech is justified? Are there less-restrictive means to obtain that end? To be passable, the Act must answer the prior in the affirmative and the latter in the negative. To be sure, VARA’s only constitutional challenge was for vagueness, and the Southern District of New York upheld it as not unconstitutionally vague. Constitutional support for its purpose, however, provokes disagreement. One perspective attests that the Constitution offers no source of power for the federal regulation of moral rights, making VARA unconstitutional on its face.
The other side of the argument would proffer a broader interpretation of the Constitution to encompass moral rights, perhaps as a deprivation of liberty under substantive due process. How one would define that “liberty,” however, is a question for another day.
Also unclear is whether moral rights represent a compelling government interest. Moral rights in the United States are younger than some of the students at Duquesne University School of Law. Again, VARA was enacted in 1990, less than 30 years ago. While “newness” does not necessarily render an interest weak or of low value, it certainly does not enjoy the cushion of history that some other interests do, such raising and supporting a military as in O’Brien. On the other hand, what is to be said of the perpetuation of American culture? What is a nation without its culture? And what is culture without the arts? The argument is romantic, and without strong textual or judicial support, one can imagine the consequences of completely ignoring these values.
Determining whether the interest in culture and moral rights justifies the incidental restriction on free expression is another weak argument. Given the lack of textual, judicial and historical acknowledgement of such interests, and the immense importance of free speech in the United States, it is difficult to supply a competitive case. The argument behind upholding the moral rights of VARA despite its incidental restriction on free expression does not appear to be particularly strong when applying the historical tests. And yet, that deep sense of discomfort that comes with the destruction of great art does not go away. It can invite extraordinary unease and make people recoil.
Perhaps VARA was enacted as a begrudging requirement of the Berne Convention. Perhaps it was acquiesced to so that other legislation could pass. But perhaps, too, it is America’s only way to deal with that profound sensation of discomfort that comes with the intentional destruction of something great.
Natalia Holliday is a 2019 J.D. candidate and web editor of Juris Magazine. She is an enthusiastic classmate and law clerk at Edgar Snyder & Associates. She enjoys learning cheesy 4-chord songs on her acoustic guitar.
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 The Art Story Foundation, supra note 1.
 Amy M. Adler, Against Moral Rights, 97 Cal. L. Rev. 263, 264 n.a1 (2009).
 Contemporary Art Evening Auction, Sotheby’s Catalogue Note (2017), http://www.sothebys.com/en/auctions/ecatalogue/lot.42.html/2016/contemporary-art-evening-auction-l16020.
 Ben Mauk, The Case of the “Million Dollar” Broken Vase, The New Yorker (Feb. 27, 2014), https://www.newyorker.com/business/currency/the-case-of-the-million-dollar-broken-vase.
 Associated Press, Protester Smashes $1 Million Ai Weiwei Vase in Miami Art Museum, PeopleCrime (Feb. 18, 2014, 10:00 AM EST), http://people.com/crime/maximo-caminero-smashes-1-million-ai-weiwei-vase-in-miami-as-protest/.
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 Nick Madigan, Man Gets Probation in Attack on Ai Weiwei Vase, The New York Times (Aug. 13, 2014), https://www.nytimes.com/2014/08/14/arts/design/man-gets-probation-in-attack-on-ai-weiwei-vase.html.
 The Art Story Foundation, supra note 1.
 John G. Sprankling & Raymond R. Coletta, Property: A Contemporary Approach at 26 (3d ed. 2015).
 Visual Artists Rights Act of 1990, 17 U.S.C.A. § 106A(a)(3).
 Id. (emphasis added).
 Id. at § 106A(d).
 U.S. Const. amend. I.
 Texas v. Johnson, 491 U.S. 397, 414 (1989).
 United States v. O’Brien, 391 U.S. 367, 376 (1968).
 Spence v. State of Washington, 418 U.S. 405, 407-408 (1974).
 Id. at 409 (emphasis added).
 Id. at 410-11.
 Id. at 410.
 Id. at 410-11.
 Johnson, 491 U.S. at 403.
 United States v. Carolene Products Co., 304 U.S. 144, 153 n.4 (1938).
 Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).
 Johnson, 491 U.S. at 403 (summarizing the procedure in O’Brien).
 O’Brien, 391 U.S. at 377.
 Id. at 376.
 Id. at 375.
 Id. at 370.
 Id. at 376.
 Id. at 377.
 Id. at 377-78.
 Id. at 381-82.
 Id. at 382.
 Johnson, 491 U.S. at 405.
 Id. at 405-06.
 Id. at 406.
 Id. at 407.
 Id. at 410.
 Id. at 419.
 United States v. Eichman, 496 U.S. 310, 315 (1990).
 Susan P. Liemer, Understanding Artists’ Moral Rights: A Primer, 7 B.U. Pub. Int. L.J. 41, 41 (1998).
 Id. at 42-43.
 Id. at 42.
 Adler, supra note 8 at 269.
 Id. (quoting Millet, Tribunal de la Seine, May 20, 1911, Amm. I. 271).
 Yong Wan, Moral Rights of Authors in China, 58 J. Copyright Socy. U.S.A. 455, 456 (2011).
 Roberta Rosenthal Kwall, “Author-Stories:” Narrative’s Implications for Moral Rights and Copyright’s Joint Authorship Doctrine, 75 S. Cal. L. Rev. 1, 26 (2001).
 Kwall, supra note 70 at n.112.
 Adler, supra note 8.
 17 U.S.C.A. § 106A(a).
 Carter v. Helmsley-Spear, Inc., 861 F. Supp. 303, (S.D.N.Y.1994) aff’d in part, vacated in part, and reversed in part 71 F.3d 77, cert. denied 517 U.S. 1208.
 Eric E. Bensen, The Visual Artists’ Rights Act of 1990: Why Moral Rights Cannot Be Protected Under the United States Constitution, 24 Hofstra L. Rev. 1127, 1132 (1996).