Jonathan Gingerich (Rutgers Law School) has posted Thinking in the Dark: The Case for Surreal Speech on SSRN. Here is the abstract:
Why does art—especially art that does not communicate a specific message—lie at the heart of free speech? This Article builds on Seana Shiffrin’s thinker-based theory to argue that free speech should protect not only speech that clarifies thought or communicates specific mental contents from one person to another but also surreal speech: expression that manifests a speaker’s obscure mental contents and, in turn, invites or triggers obscure thought in its audience. Drawing on Francey Russell’s account of “obscure thought” and André Breton’s discussion of “Surrealist objects,” I argue that thinking obscurely and expressing obscure thought advance some of the foundational interests that we all have as thinkers. The surrealist-friendly view of free speech that I advance has consequences for First Amendment doctrine. Rather than determining whether actions qualify as “expressive conduct” covered by the First Amendment by asking whether they communicate a “particularized message,” I argue that we should classify conduct as expressive whenever it externalizes a speaker’s thought and is designed to invite or elicit thought. Adopting this view squarely recognizes artistic expression—including dance, drag, sculpture, and abstract art—as core speech.
Recommended.