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.

Seriously though, what the hell is wrong with Germans?
5.30.2008 6:24pm
Colorado Steve (mail):
How does this differ from a snuff film?
5.30.2008 6:25pm
Eugene Volokh (www):
Snuff films, which -- at least when I last checked -- are apparently mythical, are generally defined as films depicting people being actually killed. Participating in the making of a snuff film is conspiracy to murder, because it causes a death that would otherwise be avoided. Perhaps even distribution or possession of such films might be criminalized, on the theory that such criminal laws are needed to dry up the market for the production, and therefore to save the people who are being killed. (That's the rationale for banning the distribution or possession of child pornography.)

Here the discussion is about someone who is already dying; the artist would only provide a place where he can do so, perhaps a place open to the public -- he wouldn't actually bring the death about, since the death would happen anyway.
5.30.2008 6:34pm
ak47pundit (www):
The participants may be dying to take part, but I'm not sure how many people are dying to see it.
5.30.2008 6:42pm
Let's ask this question.

Suppose that the exhibitor offered to pay the family a million dollars for the exhibit.

Suppose the exhibit was not dead yet. Maybe it was getting better.

Wouldn't there be some pressure for the show to go on if the prop was having thoughts about not cooperating?
5.30.2008 6:43pm
Eugene Volokh (www):
ReaderY: That is a risk -- but so is the risk created by life insurance, and by inheritance law.

In fact, the latter risk is, I suspect, much greater. Large insurance policies and inheritances are not uncommon: The average American life insurance policyholder has about $150,000 in coverage, and the median net worth of American families in which the family head is 45 or older is over $150,000 (see note 119), but I highly doubt that a typical museum would offer anywhere near this much to the dying person (or even would have that much at stake in the exhibition).

In any case, if you're really concerned about the danger that the dying person's death will be hastened when large sums are involved, that might be reason to limit the amount of money at stake, rather than totally banning the behavior.
5.30.2008 6:56pm
Snuff films, which -- at least when I last checked -- are apparently mythical, are generally defined as films depicting people being actually killed.
Won't that be the next logical step in this anything-goes progression? With a willing victim, of course, and enough anonymity to dodge the law.

And libs wonder why conservatives oppose change for the sake of change.
5.30.2008 7:00pm
c.j. ammenheuser:
Kafka a German writer wrote Ein Hungerk√ľnstler, the Hunger Artist; the showpiece of a person dying, but eventually, after the novelty wore off, no one wanted to see it
5.30.2008 7:15pm
c.j. ammenheuser:
Ooops- I posted too soon...

Kafka, a German writer wrote Ein Hungerk√ľnstler, the Hunger Artist; the showpiece of a person dying, but eventually, after the novelty wore off, no one wanted to see it. Not unlike the deaths of the Holocaust, which was no doubt what Kafka was writing about.
5.30.2008 7:17pm
Eugene Volokh (www):
Smokey: I'm not sure why there's much of an analogy between causing the death of another person -- even a willing person -- and simply displaying a person who is already dying. The first has long been the crime of murder. The second has not even been criminal. The first involves conduct that causes a death. The second doesn't.

The differences are vast, and the law reflects that. Why would there be much danger of a "logical progression" here from one to the other?

As to "change," it is outlawing such an exhibition that would require a change in the law. Tolerating it would require no change at all, as best I can tell.
5.30.2008 7:22pm
Kafka wrote about the Holocaust?
5.30.2008 7:25pm
Without passing judgment on this particular "performance", I have been present at a person's moment of death before and it's a tremendously powerful and moving experience.

Depending on how it's done, it could be horribly exploitative or it could be tragically beautiful. It certainly has the potential to profoundly affect the audience (spectators? ghouls?). It sounds like art...
5.30.2008 7:25pm
We're all dying. Given my genetics, odds are, I have about 45 years left, my parents about ten each. My kids, 70-80 years. But we're all going to die.

What's next, passing a woman giving birth off as art?

How lazy can you get as an artist?
5.30.2008 7:51pm
The First Amendment issue and crim law issues seem fairly simple to me--this seems like any other shocking art that doesn't actually cause anyone physical harm, and it's nowhere near the level of awfulness to be considered obscenity, at least based on what's displayed here.

A legal question I find more interesting, though--will a court enforce a contract where a dying person agrees to let an artist display his death for appropriate consideration?
5.30.2008 8:01pm
Gaius Marius:
What's next, passing a woman giving birth off as art?

How lazy can you get as an artist?

I share your sentiments. Maybe showing a person in the act of defacating can be passed off as art. Oh wait, Rodin already created such art via his sculpture of "The Thinker."
5.30.2008 8:04pm
Jerub-Baal (mail) (www):
Hmmm... GatoRat, I seem to remember someone attempting just that, though unfortunately I can't remember quite where...

As for snuff films or death-porn, the "Faces of Death" videos are still available, though IMDB lists the first one as banned in New Zealand, Finland and Norway, with conflicting info on banning in the UK.

Yes, stuff like this I think would pass the test as protected expression, barring anything that might be a violation of local health codes. That doesn't confer any moral or artistic value on it, but those issues aren't the test here. I would think, however, that the assistance of a doctor in finding a subject could have ethical repercussions, or possibly licensing ones, but those often seem to be subjective issues with lots of wiggle room for the decision makers.
5.30.2008 9:03pm
David Chesler (mail) (www):
Dying is easy. Comedy is hard.
5.30.2008 10:44pm
Who Schvarted?
5.30.2008 10:51pm
TruePath (mail) (www):
How is this troubling. I mean you (and I) may think death is more dignified if it isn't a spectacle but being dignified isn't the end all and be all. Suicide is more dignified than a colostomy bag but I'll take the bag thank you very much.

It seems to me letting a person do as they choose is the only relevant factor here since it's not like they are doing anyone any harm. Even if they are only interested because they are compensated so what? I mean that's the only reason many of us work.

Sure, a million bucks might make someone feel pressured to participate but no more so than an actors contract pressures them to appear in the play every night. I mean the pressure is just to let people peer at them in a room not to die.
5.30.2008 11:48pm
jccamp (mail):
"Florida SS 782.081 Commercial exploitation of self-murder.--A person may not for commercial or entertainment purposes:

(a) Conduct any event that the person knows or reasonably should know includes an actual self-murder as a part of the event or deliberately assist in an actual self-murder.

(b) Provide a theater, auditorium, club, or other venue or location for any event that the person knows or reasonably should know includes an actual self-murder as a part of the event.

A person who violates this section commits a felony of the third degree."

Maybe Moonbat can make a citizen's arrest.
5.31.2008 12:26am
corneille1640 (mail):
Dear jccamp:

The situation Mr. Volok described doesn't seem like self-murder or even assisting deliberately in self-murder.
5.31.2008 12:50am
jccamp (mail):
You're correct. I didn't take the time to read the link to the original story. I was just being facetious anyway, although the Florida law does exist.

More seriously, I have seen a sufficiency of humans dying. It's not an experience I was classify as entertainment. Or art.
5.31.2008 1:15am
Sounds disturbing. However, the Dying Gaul is one of my favorite ancient sculptures. Who is to say that this work might not just be the updated version, that will, thousands of years from now, sit in a museum surrounded by ruins of our government buildings?
5.31.2008 1:30am
SmokeandAshes (mail):
Having had recent experience with my mother's passing at home, I don't have a problem with this exhibit. As long as dying has made the decision, I don't see that this is a problem. We have been too long insulated from the reality of what happens in death. It has been relegated to the hospital or the nursing home, to a sterile environment, shunned as almost something unnatural. Does having the dying experince on display any worse than having it hidden away?
5.31.2008 2:01am
Bill F. (mail):
Kakfa could not have been writing about the Holocaust. He died in 1924, and wrote "Ein Hungerkuenstler" in 1922.

Just noting.
5.31.2008 2:58pm
Bill F. (mail):

5.31.2008 2:59pm
vepxistqaosani (mail) (www):

Your hesitance to speak to the ethical questions troubles me ... it seems too lawyerly a response. We laymen are not too much interested in whether or not other people's actions are legal; we want to know whether or not they're right. (When it comes to our own actions, though....)

You say you doubt your visceral reaction; I say you are wrong to do so. The 'ick response' is much derided these days -- but it has force simply because it is how human beings actually live.

When anthropologists and primatologists describe the behavior of 'primitive' tribes and primates, they do not pass judgement; instead, they describe how their subjects actually behave. Implicit in this description is the notion that individuals who do not so behave are unusual in some way.

Similarly, when well-described and well-accepted norms of human behavior are 'transgressed' by the avant garde (in whatever field), it is not wrong to condemn such actions as deviant, even if -- as will usually be the case -- there is no firm philosophical basis for doing so.

Western philosophy and law are outgrowths of Western traditions (the relationship is not transitive); as the former are used more and more to subvert the latter, all will fall first into disrepute, then desuetude, and finally desperation.
5.31.2008 3:04pm
Jerub-Baal (mail) (www):
I might ad that, from many places as I read about this, people comment that Mr. Schneider's proposed project is ethical, because the subject would be in agreement with it.

However, the subjects of scams or ponzi schemes agree to those projects (at least until they notice that their money is gone).

Mr. Schneider does not seem to be trying to scam anyone in anyway. The analogy is meant only to illustrate the fact that willing participation by the subject does not, in and of itself, provide any ethical cover.
5.31.2008 3:43pm
Jerub-Baal (mail) (www):
oops, that should have been "Mr. Schneider does not seem to be trying to scam anyone in any way."

sorry for the typo...
5.31.2008 3:47pm

"...I'm the last person to speak to whether it's good art..."

No, Eugene, you're wrong. The art world is a scam; it's a matter of popular opinion as manipulated by those who earn a living from selling and promoting it. Art is an aesthetic quality that is subjective and personal. If you don't like it, it's bad art. If you do like it, it's good art. Really and truly - there isn't much more to it than that.

It's like asking, "What color is better, red or blue?" How is the opinion of an art expert better than yours?

Ask any collector and they will say the same thing:

"Collect the work you like, not what you think is valuable." Unless they have something to sell, of course.

Van Gogh sold, what, one painting in his life, to his brother? Was he a bad artist while he was alive and a good artist later? Or was he really just a hack, a nut job who was exploited by greedy merchants who could pick up his garbage at a good price?

In fact, I think your legal opinion qualifies you as an expert in the field of conceptual art, and I'm serious. It could validate the authenticity of the piece. Jackson Pollock's big contribution to the world of art was recognizing that art is just paint on canvas. His handler's made him famous and then dumped him. Duchamp hung a urinal in a gallery as a drinking fountain, and he gave up art for something more interesting - chess! Many schools of art have been developed specifically to combat the influence that the "experts" have in determining what "good art" is. Then they can claim that their art is "better" or that it is "real art."

Art is like religious propaganda - like the law - and you are an expert in that field, no?
5.31.2008 3:51pm
Jerub-Baal (mail) (www):
EricE, if I may, I would like to tactfully disagree with you on a couple of points (although I think we probably agree at the base of all this).

Firstly, I don't believe that the "art world is a scam", at least not in the whole. Of course, I am an artist so that would be my expected opinion. The art world today has become such a wide market, where so many different niches exist, that it is an entirely different thing from the more-or-less 'critically monolithic art market' of 30 years ago, where if you were not avant garde you were nothing. This is partly because art literally ran out of 'new' years ago; realism was gone, representation was gone, craft and technique were gone. Duchamp and the Dadaists put a stake through the heart of the avant garde by finally destroy the act of creation itself (though the'A-G' has managed to stumble on zombie-like for another three generations, searching vainly for something new to do). Another part of the death of the 'critically monolithic art market' lies right here, with what you are doing and saying. New technologies allow people outside the art world to questions things with a big voice. Meanwhile, the artist is able to bypass the critic and the professor, bringing their work directly to a wider market than any gallery could ever offer. The legacy Art Market is like the MSM, being by-passed left and right.

The paradigm has changed.

Now when it comes to deciding what art is, there is a market for just about anything, and it is hard sometimes to know how to take something, for in a world of billions of potential buyers, surely someone will consider it art. However, I think this particular incident underlines how much of the art world has scammed itself. Like the universities, for so many years the upper levels of the art world became an echo chamber. Lacking any coherent moral framework, and often (especially at the higher levels) being very PC, many in the art world have forgotten how to think logically. Emotion and conformity of critical stance have become hallmarks of the "Main Stream Art Market" (if you will). This lack of logic or of a coherent moral framework can be seen here. Mr. Schneider's apologetics for his work fail internally. And, of course, once he tried to produce a reason for his piece, an apologetics of his ethics, he becomes fair game, but because he (seems) to be used to the MSAM group-think, he doesn't understand why the wider world doesn't accept his arguments. I will give him the benefit of the doubt. He seems to be a very intelligent man. Surely if he were used to logically critiquing his ideas, he could have done much better from the get-go.

Watch, there will be more of this kind of thing, while others quietly make a great career in art, outside of the headlines.

I do agree with you on your main point. Mr. Volokh, by the very nature of his logic and critical thinking, is eminently qualified to speak to the nature of art, especially when the artist has provided such fodder for criticism.
5.31.2008 5:16pm
Tracy W (mail):
The BBC a while ago did a series called The Human Body, with the final episode being about death. In particular, the death of an old man due to cancer, including showing the heat fading from his body afterwards. He and his family fully and happily cooperated, and it was deeply moving, and not at all icky.
6.2.2008 6:54am
c.j. ammenheuser:
Bill F.
An author or an artist need not live in the future to write about the future, or to write about the death. Artists often think beyond the limitation of the obvious here and now.
FWIW, in my opinion, in the short story The Hunger Artist, Kafka was writing a bold statement about the future Holocaust.
6.2.2008 7:47am
LarryA (mail) (www):
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.
This would be far more dignified than shoving the patient into a sterile intensive care ward where a masked team of faceless people stick medical equipment in every orifice and electronically monitor the process on various beeping things.
6.2.2008 10:55am
Mary Katherine Day-Petrano (mail):
On the topic of Art: I think it a superficial argument some raise that "art is a scam." That is not how most artists see it. The majority of struggling artists produce their works to sell for whatever they will bring to put food on the table for their families. And I would not call the significant "price increases" we often see in the art world when an artist is "discovered" as a scam, either. It is simply more a function of business demand in the realm of collectors.

What is a piece of art worth to Elizabeth Taylor or J. Paul Getty? That depends on (1.) its appeal to the buyer, (2.) how well it will hold its investment value or how much appreciation may be expected, (3.) its fame. Remembering, of course, that a Michaelangelo will always be a master, eventually to be discovered. Why, talent and his works are a class act, extremely difficult to duplicate or compete with by others. It is the same with the finest of wines -- in the Sonoma Valley, it is those vines that grow on the rockiest hillsides, struggling for existence, that produce the highest quality.

Is the Display of Dying or Disabling Deformity "Art?" Perhaps to those who seek to profit financially from the display, and possibly to some more macabre individuals; but to most, at least the display of dying is as vulgar as some forms of child porn.

Is it Protected Speech? In most cases, it would appear the answer is yes.

A More Difficult Question: "The differences are vast, and the law reflects that. Why would there be much danger of a 'logical progression' here from one to the other?" --->

Human beings have envolved into inherently different genotypes over thousands of years of mankind. Many humans biochemically possess a "kill the defective humans" gene, and therein lies the danger of the slippery slope. If we say it is "Art" to display the dying with their agreement and consent, who does it harm? So long as their death is not hastened by another, possibly nothing.

But, to those who inherently possess the idea the dying are defective and therefore vulgar, giving rise to the rationale their death should be "helped along," we enter a very slippery slope.

Where does it stop? If we find the sight of a woman in a PVS state (or debatably minimally conscious state) with a feeding tube is "haunting," and therefore vulgar, will those possessing the inherently "kill the defective humans" gene wish to hasten along her dying as well (or even act on it)? This, in fact, has happened in recent history.

What about the burn victim, or war veteran amputee with one leg, or mentally retarded person, or person with autism? Is such a person's presence resulting in a "display" in public so vulgar the slippery sloper possesser of the inherent "kill the defective humans" gene would want to hasten their death as well?

I think the above-described "progression" should be sufficient to spell out the danger.

Some commenters have found a display of dying is "Art" or at least beautiful or peaceful. But, on this question, the answer is "it depends." Not all dying is beautiful or peaceful, but may be horrible and tragic. I am of the opinion not all displays of dying would qualify as protected speech, even if it were claimed by the macabre as "Art." For example:

A 57 year old woman douses herself with gasoline, flicks a lighter, ignites herself, bursts into flames four feet high, burning the leaves of the trees above. She falls, while continuing to burn, singes a sillouette of the shape of her burning body partly on the sidewalk, partly in the grass, with one arm raised. Neighbors rush over, trying to put a blanket over the burning woman, try to put out the flames; it takes more than five minutes to snuff out the fire. Soon over a hundred witnesses and responders with airlift are on the scene. The woman has suffered third degree burns over 100% of her body. She is airlifted to the trauma center ER, where her burns are pronounced fatal. The display of her dying reveals all her clothes have been burned from her body by the flames; her eyes have been burned out; the outer layers of her skin have been burned off, leaving oozing bubbles all over her body; filaments of her clothing are falling off imbedded with pieces of her skin; her mouth and tongue are burned on te inside. As she is dying, her mouth swells shut, cutting off her breathing; she is transferred to the coronary care unit, placed on heavy morphine. Every half hour, the dressings on her burned skin are changed. Slowly, she begins to affixiate, an agonizing horrible death beyond description for anyone who has not witnessed it, until, finally, her breathing shuts down, throwing her into cardiac arrest, and she dies. It takes 19 1/2 hours.

Is such dying beautiful or peaceful? Almost a rhetorical question; not to me. Would such a display of dying be protected "Art?" I am not so sure.

On a personal level, I would not wish to view a display of dying. Others may disagree. But viewing a display of a disabled person in public is different -- it is mandated by the concept of integration. With regard to a deformed person, acceptance of that person's right to exist present in the public as an integrated and of equal worth human being is the highest achievement of kindness, morality, and equal protection.

I do not, however, believe that is what is being taught in our law schools or the legal profession, sadly.
6.3.2008 1:39am
Mary Katherine Day-Petrano (mail):
"envolved" = evolved
"te" = the
6.3.2008 1:44am