Threatening words or images are assumed by American courts to be non-art. But this threshold question of art status is complicated by the evolution of rap and performance art. There is no articulable way to discern art from non-art for these non-textual media, a problem compounded in the unique context of the Internet. In civil litigation we can resort to institutionalist tests like audience reception. But mens rea matters in criminal prosecution. I favor judicial pragmatism in what I argue here is a very non-legal area of law.
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