The Volokh Conspiracy

The Art Newspaper reports:

The German artist Gregor Schneider is planning the ultimate performance piece: showing a person dying as part of an exhibition. "I want to display a person dying naturally in the piece or somebody who has just died .... My aim is to show the beauty of death." ...

It's not clear how far the planning for this project has gone; the original story might have overstated it in some measure, but it appears that the artist is serious, in particular about "offer[ing a dying person] a room, a space in which they spend their last hours as they wish," which could be "a public event or a private event" as the person wishes.

Reader Matt Andrade pointed me to this story, presumably with an eye towards asking my views on whether it would be legal (I'm the last person to speak to whether it's good art). My tentative answer is that this would probably be legal: The dying are as entitled to be in a place as anyone else, and invite people to visit them or see them. Nor is there any reason that I can see why a museum's drawing attention to this, or charging money for it, would be illegal under existing law. (I set aside the possibility that deliberately staging this in a public park, or some other place where people may be caught unawares by such an event, might be illegal under some sort of disturbing the peace law, on the theory that it causes alarm to unwilling viewers without adequate justification. The plan appears to be to stage this in a place where only willing viewers will be invited.)

Moreover, if the dying person is using the occasion to speak to people who come, either as a group or one at a time, it seems to me that this would be constitutionally protected speech, even if admission is charged. The conduct of being present when speaking — in whatever health one might be in (setting aside the question of contagious disease) — must, I think, be as protected as the speech one engages in. And this is true even if, and perhaps especially if, one's presence in that condition is part of one's message.

The tougher constitutional question is whether simply deliberately going to die in a place set aside for such an occasion, and publicized as a place for such an occasion, is protected expression even if nothing is said. That's hard to tell; compare Rumsfeld v. FAIR (holding that conduct may be protected by the First Amendment only if it's "inherently expressive" so that "[t]he expressive component ... [is] created by the conduct itself [rather than] by the speech that accompanies it," something that might not be so given that death as such is not inherently expressive) with Brown v. Louisiana (lead opinion, for three Justices, cited favorably by the majority opinion in Texas v. Johnson) (holding that silent presence at a racially segregated library was protected by the "freedom of speech and of assembly").

The closest legal analogy that I can think of is state laws that bar the public display of human deformities. But it's not clear to me that thse laws are constitutionally permissible. Those who are seen as deformed are as entitled to be actors, for instance, as are those who are seen as beautiful, and I don't see why the display of one's own body for its own sake would be different from the display of one's own body in impersonating another, especially if the display is accompanied with words (as it often is). Cf. Galyon v. Municipal Court, 40 Cal. Rptr. 446 (1964), and World Fair Freaks & Attractions, Inc. v. Hodges, 267 So.2d 817 (Fla. 1972), striking down the statutes, though on substantive due process grounds that don't strike me as entirely persuasive; Brigham A. Fordham, Dangerous Bodies: Freak Shows, Expression, and Exploitation, 14 UCLA Ent. L. Rev. 207 (2007) (discussing the subject).

I'm sure that both as to exhibition of deformities and as to exhibition of one's death, some audience members may just ogle rather than being enlightened. I suspect that this is especially likely as to much commercialized exhibition of deformity. And I sympathize with concerns that some of the people being exhibited might feel degraded by the process. But I don't think this justifies blocking those dying people — or those handicapped people — who choose to display themselves in public from doing so (especially if they are speaking in the process), and reserving museums and other public places for speech by the healthy and able-bodied.

The nude dancing case suggests that such a museum exhibition might be banned by a generally applicable law that prohibits all people from deliberately choosing to die in a place that's open to the public to enter. But I know of no such generally applicable laws, and I'm not sure that if such a law is enacted, the nude dancing case would quite apply here (partly because the tradition of nude dancing laws is so much broader).

I should add that my visceral reaction is to be troubled by the museum exhibition that Mr. Schneider is contemplating (which is not to say that I would outlaw it); my assumption, and I expect that of others, is that death is most dignified when it happens without strangers watching. But at the same time this is the sort of area where I would especially doubt my (and others') visceral reactions. Among other things, are we troubled because of some genuine lack of dignity in public death, or by our own fear of death and our consequent desire to hide it, coupled with a cultural pattern created by that fear? So I hesitate to speak with any confidence about the dignitary and ethical question here, and stick with a tentative view on the legal questions.

	[Eugene Volokh, May 30, 2008 at 5:20pm] Trackbacks Dying Art? The Art Newspaper reports: The German artist Gregor Schneider is planning the ultimate performance piece: showing a person dying as part of an exhibition. "I want to display a person dying naturally in the piece or somebody who has just died .... My aim is to show the beauty of death." ... It's not clear how far the planning for this project has gone; the original story might have overstated it in some measure, but it appears that the artist is serious, in particular about "offer[ing a dying person] a room, a space in which they spend their last hours as they wish," which could be "a public event or a private event" as the person wishes. Reader Matt Andrade pointed me to this story, presumably with an eye towards asking my views on whether it would be legal (I'm the last person to speak to whether it's good art). My tentative answer is that this would probably be legal: The dying are as entitled to be in a place as anyone else, and invite people to visit them or see them. Nor is there any reason that I can see why a museum's drawing attention to this, or charging money for it, would be illegal under existing law. (I set aside the possibility that deliberately staging this in a public park, or some other place where people may be caught unawares by such an event, might be illegal under some sort of disturbing the peace law, on the theory that it causes alarm to unwilling viewers without adequate justification. The plan appears to be to stage this in a place where only willing viewers will be invited.) Moreover, if the dying person is using the occasion to speak to people who come, either as a group or one at a time, it seems to me that this would be constitutionally protected speech, even if admission is charged. The conduct of being present when speaking — in whatever health one might be in (setting aside the question of contagious disease) — must, I think, be as protected as the speech one engages in. And this is true even if, and perhaps especially if, one's presence in that condition is part of one's message. The tougher constitutional question is whether simply deliberately going to die in a place set aside for such an occasion, and publicized as a place for such an occasion, is protected expression even if nothing is said. That's hard to tell; compare Rumsfeld v. FAIR (holding that conduct may be protected by the First Amendment only if it's "inherently expressive" so that "[t]he expressive component ... [is] created by the conduct itself [rather than] by the speech that accompanies it," something that might not be so given that death as such is not inherently expressive) with Brown v. Louisiana (lead opinion, for three Justices, cited favorably by the majority opinion in Texas v. Johnson) (holding that silent presence at a racially segregated library was protected by the "freedom of speech and of assembly"). The closest legal analogy that I can think of is state laws that bar the public display of human deformities. But it's not clear to me that thse laws are constitutionally permissible. Those who are seen as deformed are as entitled to be actors, for instance, as are those who are seen as beautiful, and I don't see why the display of one's own body for its own sake would be different from the display of one's own body in impersonating another, especially if the display is accompanied with words (as it often is). Cf. Galyon v. Municipal Court, 40 Cal. Rptr. 446 (1964), and World Fair Freaks & Attractions, Inc. v. Hodges, 267 So.2d 817 (Fla. 1972), striking down the statutes, though on substantive due process grounds that don't strike me as entirely persuasive; Brigham A. Fordham, Dangerous Bodies: Freak Shows, Expression, and Exploitation, 14 UCLA Ent. L. Rev. 207 (2007) (discussing the subject). I'm sure that both as to exhibition of deformities and as to exhibition of one's death, some audience members may just ogle rather than being enlightened. I suspect that this is especially likely as to much commercialized exhibition of deformity. And I sympathize with concerns that some of the people being exhibited might feel degraded by the process. But I don't think this justifies blocking those dying people — or those handicapped people — who choose to display themselves in public from doing so (especially if they are speaking in the process), and reserving museums and other public places for speech by the healthy and able-bodied. The nude dancing case suggests that such a museum exhibition might be banned by a generally applicable law that prohibits all people from deliberately choosing to die in a place that's open to the public to enter. But I know of no such generally applicable laws, and I'm not sure that if such a law is enacted, the nude dancing case would quite apply here (partly because the tradition of nude dancing laws is so much broader). I should add that my visceral reaction is to be troubled by the museum exhibition that Mr. Schneider is contemplating (which is not to say that I would outlaw it); my assumption, and I expect that of others, is that death is most dignified when it happens without strangers watching. But at the same time this is the sort of area where I would especially doubt my (and others') visceral reactions. Among other things, are we troubled because of some genuine lack of dignity in public death, or by our own fear of death and our consequent desire to hide it, coupled with a cultural pattern created by that fear? So I hesitate to speak with any confidence about the dignitary and ethical question here, and stick with a tentative view on the legal questions.