"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
States.
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.