Honoré Daumier - Le meilleur des rois continuant a faire regner l'ordre dans ses etats (The best of kings continuing to keep order in his states), 1851

Honoré Daumier – Le meilleur des rois continuant a faire regner l’ordre dans ses etats (The best of kings continuing to keep order in his states), 1851

Political speech is the core expressive activity that forms the foundation of our democracy; it receives the highest level of protection under the First Amendment.  This protection includes art used in a political context, which covers everything from protest art to logos commissioned by political campaigns.  It also protects art that contains political aspects but has no clear political message, such as art that lampoons a public figure for the way they dress (which might also be considered parody).

In general, the First Amendment protects art with a political aspect unless it is found to be obscene or defamatory.  Additionally, political art that can be characterized as “extremist” because of its violent message or support for a group that advocates violence may be subject to restrictions on hate speech or true threats.  Finally, even where “extremist” statements in art cannot be prohibited or punished, artists should be aware that such expressions and associations with known “extremist” groups may subject them and their online activity to law enforcement surveillance without violating the First Amendment.  An artist might still run into some issues with political  if they seek to profit from using a political figure’s image, or if their speech is of a type regulated by campaign finance laws.  We discuss political figures’ privacy and publicity rights in our section on depictions of real people, and devote this section to campaign finance law.

Campaign finance laws govern the money that politicians spend to advertise and support their candidacy.  Campaign finance laws and freedom of expression can collide when regulations of campaign contributions limit the ability of a party to express their beliefs.  In some cases, artists may need to be aware of how those restrictions impact the use of their art, especially if the art is created in support of a specific candidate.

This area of law is generally not an issue for artists since campaign finance laws are focused on accounting for the money spent on a campaign, and not what private citizens say about the campaign.  But, if you create art that is related to a specific candidate or campaign, you should be aware of the ways that campaign finance law may restrict what you say and how you say it.  Federal laws govern federal elections while state laws govern state elections, and there may be some discrepancy between the two sets of laws as to what is allowed.

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