Subtle, intangible, and non-quantifiable

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"Subtle, intangible, and non-quantifiable": Aesthetics, Law, and Speech in

Public Space
Leslie Prosterman
The National Mall in Washington, D.C. offered the site for some

of my most evocative experiences growing up in the D.C. metropolitan area.

Known to me and my friends as "the Mall" (a linguistic domestication of a

grand national space through use of the truncative), its sweeps of green

with the Capitol at one end, the Washington Monument in the middle, and the

Lincoln Memorial at the other end near the Potomac River awed us both

consciously and subliminally. Bi-yearly school trips to the Museum of

Natural History and the National Gallery introduced us to the Mall. We knew

we were lucky to get out of school to raise a little hell hopping around on

the bus and whooping through the marble halls though we found the constant

cultural enrichment somewhat tedious. At some less conscious level, we took

in the age of the Capitol, the sheer size of the columns, doors, atriums,

the quantity of stuff inside of the museums and monuments, and the buildings

' beyond-scale physical setting on the Mall, and we were impressed.

Later on, we watched representations of the Mall in our own or

in friends' living rooms. Throughout the Sixties, more and more of those

photographs represented crowds of demonstrators petitioning for redress of

grievances and officials reacting to those crowds, demonstrators, and

petitions. Soon, we were out there (and in Lafayette Park, in front of the

White House) during the Poor People's Campaign, Resurrection City, and the

March on the Pentagon and the rest of the anti-Viet Nam War demonstrations.

Starting in 1967, the Folklife Festival appeared on the Mall during the

summers; we learned how to play hammer dulcimer in ten minutes and to eat

Indian fry bread. The Mall really was the nation's front yard, the site of

what was happening, and we went there to be part of it.

After college I came back to D.C. to work in 1975. When the

Senate was in recess, we'd grab our skates, leave early, and head for the

new skating rink among the monuments, now a sculpture garden among the

monuments. Since returning after graduate school in the early 1980's, my

friends and I often walk on the Mall at sunset, watch the shapes of the

buildings against the sky, and hang with the crowds of tourists from Japan,

Kansas, and southern Virginia, workers from the Archives and the GSA,

skateboarders, Frisbee players, and Falun Gong practitioners cramming the

public space. It's a big space and there's room for a lot of action, for

observation, and for reflection. It's the only space like it in the United

The Mall means a lot to me as memory, as a personal quiet

refuge, and as a site of multiple civic discourses. My scholarship has

focused on observation and analysis of symbolic expressions, aesthetics, and

the public realm. Over the last few years, my research has concentrated on

art and politics, particularly art and law in America. As I searched cases

concerning law, art, and first amendment issues, my personal and

professional interests converged in cases dealing with demonstrators and the

National Mall and Lafayette Park, which formed a distinctive body of

aesthetic and legal discussion.

These legal cases from the 1980's and 1990's feature the

development of aesthetics as a substantial governmental interest (presumably

acting in the public good). A substantial governmental interest can

supersede freedom of expression in historical public forums such as national

parks. The National Mall and Lafayette Park are examples of such national

parks, administered by the National Park Service.

In their written opinions, judges accept aesthetics

without a question as to the meaning or content of the term. Courts thus

legitimize aesthetics (and a particular kind of aesthetics) as a substantial

government interest, whether ruling in favor or against demonstrators'

activities. Interrogation of the degree to which these aesthetic

determinations represent shared or contested ideals, beliefs, and values of

different groups of people raises questions as to the nature of the public

in the public good that those substantial government interests protect.

Different publics exist in American culture, and, therefore different

aesthetic concepts; we need at least to explore the tacit assumptions

underpinning the law and government regulation to ensure equal access to

public forums.

In this paper, I call attention to this phenomenon and examine the history

and use of aesthetics in antecedent cases. I scrutinize the natures of the

specific aesthetic judgments implied in the contemporary cases and explore

the complementary nature of different groups' competing notions of the

beautiful and the good. In our highly segmented society, many hear the term

"aesthetic" and think of it as a concept marginal at best to supposedly

basic political and social concerns. In fact, aesthetics constitute a

determining and underestimated factor in how demonstrators are or could be

allowed to represent themselves in some of the most symbolically loaded

public forums in the country: the National Mall and Lafayette Park. It is

important to illuminate the largely unconsidered but clear aesthetic

assumptions stated in court cases relating to National Park Service

regulations of the last sixteen years, as we may find their nature to be

antithetical to the expression of plural or unorthodox opinions. Through

exploration of the nature of the aesthetic judgments involved, we begin to

question the universalist notion of this aesthetic, and to look at the

relationship between the unexamined universalist aesthetic and the

unspecified notion of the "public" in the public good.

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