LO-B

When did this book begin? It looked like the chapter on Carrie Mae Weems originally was published in 2012. Is that the first one?

YMM

Yes, that's when I began to generate the materials for the book. I began writing about law and the arts probably a year or two before. I'm a law professor and I write legal scholarship, and this is a work of mingled art and jurisprudential scholarship. In 2011, I started writing about the artist Tracey Emin, and I wound up seeing her work as a series of trials: a trial against her offender, a trial against the people who assaulted her, the trial against herself, a kind of slut shaming trial, and then the trial against the community that didn't support her. When I finished doing that, I thought I might have something to say about art and its relationship to law. The next year, I saw an interview with Carrie Mae Weems, where she talked about a conflict she had with Harvard, and how they threatened to sue her over copyright infringement and contract breach. She’d said, "Go for it." I started to look into that very deeply. That was really the initiation of the book. So it's been quite a bit of time.

LO-B

How did you come up with the structure of the book? How did you decide what to include and what not to include?

YMM

The larger foundations for the book began to appear in 2016. As I’ve said, I'm a legal scholar, I'm also a novelist. Until 2016, I had never written art criticism, except in legal periodicals. But then I went to an Agnes Martin show. The great minimalist painter. The show was at the Los Angeles County Museum of Art. It was beautiful, completely radiant rooms of her work all showing her trajectory, but there was no mention of her lesbianism or sexuality or the fact that she had experienced significant mental illness and had gone through about 100 rounds of electro-shock therapy shock at Bellevue. I wrote an essay about that. I submitted it to a local arts magazine, and they accepted it. I started writing arts criticism for magazines. Artillery was the first; it’s an independent arts magazine. Tulsa Kinney is the editor there. And she has been such an important person in my life. She started sending me on assignments. She said, "You can do whatever you want." So I wound up interviewing all of these artists and the artists that I interacted with wound up becoming a backbone of the book.

LO-B

It seemed like you wrote much of the new book during the Trump and COVID years. Is that right?

YMM

Yes. In 2021, I was invited to write a book for Cornell’s press, a thing which has never happened to me before. As any artist, as any critic knows, you have to hustle for anything you get. I mean, that's my experience. You have to just slam yourself against institutions until they give you just some little thing. When I was asked, I didn't even know what the book was going to be, but it wound up becoming part of something that I'd been already writing for the past eight years without realizing it.

I am lucky to count as a colleague, friend, and mentor Gerald Torres, who is a Yale Law Professor and Yale Professor of the Environment. One day, I was at the Getty Museum here in Los Angeles and there was a show of civil rights photography. I’m standing in the Getty galleries and I saw a photograph of the voting rights activist Fannie Lou Hamer. I snapped it and I sent it to him and I was like, "Oh, look, there's this picture of a voting rights activist here at the Getty." And he wrote me back immediately and asked, "Do you want to write a book for Cornell?" I texted: “Yes." So that's 2021 when we're all like, oh, I hope we make it into the next year. And so I just sat down and I started writing it.

LO-B

Wow.

YMM

Yes, it’s funny, because I'm kind of an introvert . . .

LO-B

As most writers are. [Laughs.]

YMM

Yes, the typical, just the most egregious characteristics of the writer are ones that I embrace. And so for me, this is just a reminder to always be texting.

LO-B

I love it. Okay, so now we have the backdrop of how the book happened. Early on you discuss the kinds of problems that you noticed that artists and lawyers were trying to tackle separately.

YMM

Yes.

LO-B

And so what were the similarities and differences in the approaches that you were seeing?

YMM

This is such a great question, and I wish that I had articulated its answer when I was writing this book, and I just have to thank you so much for asking. I mean, obviously the book is about these distinctions between law and art, but there was something about this question that really clarified some things for me, which is that lawyers operate from the visible world. They often bring lawsuits based on problems that have been brought to them by other people, problems that advocates or investigators have brought to light. A civil rights lawyer, typically, is going to be contacted by a plaintiff or is going to become a part in some way of a social movement.

It's the social movement actors who make visible what has otherwise been invisible to the social order–the problems that lawyers later grasp onto and translate into legal language and then bring into the courts or the legislature. Just as an example, think about the Greensboro Four in North Carolina. In 1960, activists such as Ezell Blair Jr., David Richmond, Franklin McCain and Joseph McNeil began to do lunch counter sit-ins in segregated states like North Carolina because Black people were being segregated in places of public accommodation. And because they had made this segregationist practice, and their moral objection to it, highly visible through the spectacle of their protest, lawyers began to organize around the legal concept of public accommodations. That is, the idea that, as a matter of law, it should be illegal for places of public accommodations—movie theaters, cafeterias, swimming pools, so on and so forth—to discriminate on the basis of race or other protected factors. This led to lawsuits but also to the Civil Rights Act of 1964, which prohibits race, sex, religion, color, and national origin discrimination in employment and public accommodations. 

I know I'm doing a little bit of a history here, but there are other manifestations of this: In 1968, supposedly the second wave of the feminist movement was initiated. I say supposedly because there are problems with “first wave,” “second wave,” “third wave,” “postmodern” designations of feminism. Women of color have been doing this work since forever. So there are problems with these categories. Nevertheless, in 1968, these mostly white radical feminists appeared in front of Broadway Hall in Atlantic City, where the Miss American Pageant was being staged. And they made the problems of sexism spectacular too, like the Greensboro Four had made race discrimination and its moral implications visible. The rumor is that the feminists threw bras into a trash can and set them on fire. That's more myth, because the activist Robin Morgan, who helped organize the protest, couldn’t get a fire permit. So they just threw bras and makeup and girdles and other anti-feminist crap into what they called “Freedom Trash Cans.” And this was one of the ways to make visible the kinds of oppression women were facing–objectification, which helped reinforce job discrimination, rape.

And, before that, Pauli Murray, the lawyer, activist, poet and Episcopal priest had been activating for Black women's rights from 1940s to the 1960s and beyond, both through the generation of legal documents but also through social movement actions. After that, in 1972, Ruth Bader Ginsburg—the notorious RBG—set up the first women's rights clinic at the ACLU. And one of the reasons that feminist lawyers like Ginsburg could create a legal language for gender fairness was because feminists, many of whom were involved in the arts and making these spectacles and pageantry and these performances, had made the problem of women's—at this point, largely white women’s—oppression visible.

LO-B

Thank you for that. So, it seems like your work in the book is also to show how artists have made the “invisible” visible. Let’s talk about Tanya Aguiñiga’s art for instance.

YMM

Right, so in that chapter I write about Aguiñiga’s manifestations of border injustice. She's making spectacles at the border, she's doing protests, she's showing up in these wild hand-blown glass artifacts that can be difficult to read. They can be difficult to decode. But she is making a very important concept visible. With respect to her 2020 action, Metabolizing the Border, where she wore glass objects and marched in front of the border, she's trying to assimilate her experience, so that she can extract nutrition from it and use it fruitfully—but she's facing crisis, which is the reason why she has to metabolize it, because she's looking at violence. She needs to expel it, too. And as you read in the chapter, she'd been on the border, she'd been doing this work, she'd been going to different border stops, and crossings and seeing things that were very difficult for her to handle in her everyday life. There was an accumulated grief and accumulated trauma. So she dresses up in these wild glass pieces so that she can expel these poisons from her and take what is good. Her use of this strange language requires us to ask questions of each other and have this conversation and do a little bit of thinking. To take a pause, take a minute.

One of the other things that she does within this practice is to witness. So she's not just having a cathartic experience, but she's also witnessing this injustice. So, it's complicated work. It's not necessarily about digesting an experience down, to continue with this metaphor, into a couple of pellets. It's complicated, because not only is she getting rid of a trauma or trying to handle a trauma bodily. She's also witnessing disability discrimination occurring at the border. She’s watching people trying to get over, people waiting to cross, and having to wait for up to ten hours in the heat during Covid. And she’s seeing elderly and disabled people suffer the most during this process.

One elderly woman died during the wait to cross the San Ysidro border in 2020, and Tayna’s work is both inspired by and articulates this death. And so this is the beginning of where the lawyer can step in. The lawyer can be alerted by the trauma that is being expressed by Aguiñiga, who is saying something is really wrong here. We all know that something is wrong here, but the lawyers might be drawn, they might be lured, to return to the border, to rethink the border, in legal terms because Tanya’s work is, again, creating the spectacle. And when the lawyers arrive there, either by looking at her work or taking in Tanya’s testimony, they see this disability discrimination and that brings them into a journey, wondering about whether there are any legal doctrines that could be applied that would relieve this disability discrimination. And in fact, it would turn out to be a very complicated legal analysis. There's bad case law for it—the case law that I studied did not have much that was helpful to say about disability discrimination occurring at the border. But the experts that I wound up reaching out to suggested that there were potential legal options under the federal Rehabilitation Act. We’d have to stretch the Rehabilitation Act, probably; use language and theories to extend it to these situations that Tanya is making art about. But Tanya helps us begin that legal process.

LO-B

Did it go forward into the court?

YMM

No, it hasn't. And this is because you need standing, which basically means the “right” person has to bring a lawsuit. Not just anybody can bring a lawsuit about something. So if I hear discrimination happening to people who live on a Native American reservation, for example, and I'm sitting here in Long Beach and I'm drinking my La Croix fizzy water flavored like watermelon, and everything is basically fine with me, I can't say, "Oh this is unjust, I'm gonna sue." Because my life is not being implicated by this. I don't have standing, which is such an interesting concept, to stand. First of all it's an ableist and patriarchal kind of concept. You have to be able to stand and you have to be visible, and you have to be seen, and you have to be injured in a way that is cognizable. Cognizable is a legal way of saying recognizable by the court. And so, I wouldn't have standing for that, and Tanya does not have standing to bring disability discrimination lawsuits in this context. Because she's not a disabled person being excluded from crossing by customs and border enforcement. She’s not elderly, and she can walk, and isn’t having palpitations or something like that and has requested an accommodation to be allowed easier access to cross the border. And so this is yet another way that Tanya is revealing the multiple obstacles that the law creates for the most vulnerable people. Because people with standing to bring this kind of lawsuit are impeded from bringing them.

In the case of the border, not only are you dealing with its everyday annihilation, death and destruction, but, when she was doing her project, this was the era of COVID. Donald Trump was in office, our once and potentially future president. And there was all of this terrifically bad rhetoric happening around immigration and around immigrants—as is also happening with the asylum law under Biden.

So, what poor, exhausted, frightened, disabled, and racially “suspect” person is going to stand up and say, "accommodate me" in a political context like that one? The one legal case that I could find, where someone brought a lawsuit because they thought they deserved an expedited crossing because of their disability—that was brought by a white guy who was having an anxiety attack and had been in the military. He wasn’t a person who was elderly and could barely feed themselves. So there's a problem with what we call access to justice. To get to the courts, you have to have some resources to start with. You need to rise above a certain level of poverty before you can even start litigating your rights. Like, you have to have your food and maybe your housing taken care of before you can start saying, "I have rights." I mean, what does it take to just to go to a court, to file papers, to get a lawyer, even to appear pro se (which is where you represent yourself). What does it take to show up for a lawsuit? It takes a lot. And so Aguiñiga's work is showing all of these cracks and fissures in the law that lawyers really need to pay attention to. And as such far have not. That was a long answer to your question.

LO-B

No, that was great. The activist witnessing and revealing of obstacles actually leads to my next question, which is, what is the difference, for you, between activist art and political art?

YMM

I'm going to set out some differences and I welcome challenges to the categories I’m venturing here because I think that the distinctions are porous. So, let's see, in 1967 Faith Ringgold made an incredible painting called Die that shows a massacre. It is a work basically about racism and the death that racism creates and the emotional responses to that racism. So, she makes this painting and she puts it in galleries and it gets put in museums. It’s important to note that she put herself at risk by even painting that painting. She could have been killed for painting that painting. Yet, is that painting activism? Again, she puts Die in a gallery or she puts it in a museum. And people go and look at it. And that's the practice. That's the viewing or witnessing practice that we experience in galleries and other art spaces and museums.

While writing this book, I was faced with a potentially endless list of work. I needed to winnow down what I was going to talk about. And so what I was drawn to was not necessarily artists who are putting work in galleries like Ringgold did with Die, but rather artists who are also engaging in direct action in the way described by Martin Luther King, and practiced by Rosa Parks, Cesar Chavez, Larry Itliong, Mohandas Gandhi, and also Marsha P. Johnson, whose evocation now begins bringing us into the art field. She was such a brilliant merger of all of these worlds. Direct action can take many forms: protesting, mutual aid, surveillance of the government or institutions, forms of rule-breaking, and law-breaking, aka civil disobedience. So, when Faith Ringgold puts a painting in a gallery or a museum space, I'm definitely seeing a protest there, but not necessarily in the way that King meant when he was describing direct action.

He was going out into the streets and he was putting his body on the line. She was also, as I mentioned before–she put herself at risk by making this painting. And this is why these concepts are up for debate and can be absolutely challenged. But for me, if Faith Ringgold took that painting and maybe sat in front of it and welcomed a march or gave a speech, or did outreach of a particular type, then we would see a gesture that would be moving toward the direct action that I see described by King and practiced by these other great leaders.

So that was the distinction that I was working within. And again, we really can challenge it because the presence of art in a gallery or a museum space can constitute a protest, although that is traditionally an elite and controlled space. This brings me also to another critique, which is that I think that museums and galleries kind of train people in passivity. You go into these highly regulated places with security guards and in many cases or some other kind of surveillance. What is being expected of us in an art space? Not to have a cathartic experience, not to express our emotions, not to raise our voices, not to protest. We have seen museums’ reactions to protests, which are highly regimented, highly exclusionary. In museums and galleries we may be confronted with the most provocative images, but are expected to only look and silently absorb, maybe have a quiet little conversation about it to the side. So, I'm not seeing that necessarily as being the fullest expression of direct action in comparison to something like Rosa Parks taking a seat or in comparison to something like Marsha P. Johnson marching through the streets and advocating for the rights of women or showing up in front of Stonewall and helping throw over a car. So, those would be my distinctions.

LO-B

Since we’re now talking about museums—in the book you discuss whether the Civil Rights Act could be applied to museums, and you seem largely pessimistic about it. Could we hear more?

YMM

Yes, but one other thing about Faith Ringgold before that: she was of course one of the foremost exemplars of activist art or artivism because she also did all this literally incendiary stuff around flag burning. She got arrested, made a speech. In her other gestures, she embodies the whole world of this. But the question right now is, can the law move into gallery spaces?

It’s important to know that the law already exists everywhere. The law is in my house right now. It is in all of your houses. We are operating on the internet right now and there are multiple federal laws that touch that sphere. Tons of federal regulations on how you can conduct yourself on the internet. So, the law is everywhere. It is in the oxygen that we breathe. And so the law is already regulating museum spaces, which may be one of the reasons why in fact it is a regulated space par excellence. And some of that is probably good. The highly regulated space of museums is training us in a kind of courtesy. We don't disrupt other people's experiences. We don't shove them, we don't scream in the middle of a gallery and say, "How could you have put that frame on that painting!? How could you hang the art this way!? How could you have these signs on the wall, they're so stupid?"

We're being trained in a form of courtesy, which I think is all to the good. And museums are also forbidden from discriminating on the basis of race, gender, disability, and other protected characteristics. That’s because these spaces are governed by a host of state, federal, and local civil rights and human rights laws. In fact, one of the most expansive human rights laws exists in New York: The New York City Human Rights Act. We can't be excluded from the spaces on the basis of our protected identities. But does that mean, when we enter these gallery spaces as, say, a person of color or a non-binary person or a person with another traditionally excluded or marginalized identity, and we see nothing but art made by privileged classes and genders and races, that we are being discriminated against because we’re not being represented, that we’re being denied access to art made by “outsiders?”

If all the art in the museum was made by privileged white people, does that mean that we can bring a lawsuit? Does that mean that these galleries and museums can be held to account? Does that mean that a court can now say, "Hey, gallerist, hey museum curator, you're in violation of the federal or state or local civil or Human Rights Act, and we're going to require that you hang 25% of your gallery with the work of people of color or the work of non-binary people, or the work of intersectional people?"

Once you have laws that protect against, say, gender discrimination, then any gender will be able to sue for discrimination. And that’s because the law traffics in formal equality not in anti-subordination, and this is an important distinction. What's the difference between formal equality and anti-subordination? Formal equality means that there can be, with limited exceptions, no classifications that exclude on the basis of race or gender or religion. And everybody has some of this. Some gender identity, some racial identity, other types of identities. And so if one type of person gets excluded, then a human rights lawsuit can be brought on the basis of that. Anti-subordination is different because it looks at historical patterns of inclusion and exclusion, and it says, "Well, we're going to balance this out.” You could try to further the aims of anti-subordination, say, by creating an all non-binary space, to create a safe space. Or an all female and non-binary space. Well, the law does not traffic in that. It does not do much to recognize historical oppression or marginalization or subordination. So, if you allow courts to interfere with collection or curatorial practices, and an arts space wants to put on a show dedicated to the art of people of color or marginalized people, then a white person or a cis person might be able to sue if they feel they've been denied an ability to put on their work in that space. And that might be deleterious to the social justice and aesthetic mission of the curator or institution.

There’s also a second problem. So, let’s say that we want to sue a gallery because it’s only showing the work of privileged white people. How would we feel about a judge coming in and saying, "Hey, curator, I don't like what you're hanging. I, the court, am going to tell you what kind of art you need to put up.” Once we allow the courts to start telling gallerists what to do, then they lose the ability to make their own elections, to be guided by their own taste and expertise—they lose some of their free speech rights, in other words. Once we have courts telling curators, gallerists, and museum directors what type of art they can hang, we have what we call the “slippery slope” problem in law. That is, you slide down the slippery slope all the way into the abyss and then, well, okay, Simon & Schuster needs to publish this and MOCA and LACE needs to show that, and so on. So, this is another problematic effect of having the Civil Rights Act interfere with curation and collection practices.

But, there are some good things happening in realms where law and museum practices meet. Because there are protests about exclusionary museum practices that are engaging in what we call “law talk.” Law talk, as I describe in the book, is exactly what it sounds like. This is where people are talking about rights. "I have rights. That is a violation of my rights." This is law talk. It’s using the language of the law, of legal rights, and applying it to the larger world.

Law talk is sometimes pushed in the direction of creating new laws, and other times it's pushed in the direction of creating new norms. So laws versus norms. Law talk is so powerful because it draws from the strength of law itself. It draws from the strength, in this case from the civil rights movement and the moral and ethical revelations of that movement. And so law talk can still be a very powerful way to describe the problems created by racist and other exclusionary collections and showing practices, in that it creates shame. Because everyone understands what a right is. Everyone understands what racism is. We know that it is shameful to violate rights and it is shameful to act in a racist way. And so, in that manner, law talk can create a new norm, and that's what we are seeing.

LO-B

Let’s talk about America in particular now. First off, I wondered if you think there's a particular Americanness to dissent because it's protected by the First Amendment, for example?

YMM

I have to disagree because that defines a practice by virtue of the decisions of the elites. There's a certain amount of protection of dissent, a certain amount of protection for protest, in this country. Although we've now been having a very painful conversation nationally about what limitations we might impose on the right to protest here. But we’re not the only ones protesting. In Hong Kong, Taiwan, Latin America, there has been tremendous oppression in these places, as there has been in the United States. And in those places there’s a lengthy tradition of resistance and dissent. If we generate the definition of what something is from the community upwards or the community outwards, then we can see that there's nothing special about the protest tradition in this country.

LO-B

In your introduction you mention that you didn't focus on the US out of a sense of American exceptionalism.

YMM

I wrote only about US-based artists and protest and activism because of my own ignorance. This is what I know. And so I just had to start with what I knew. It's very critical to acknowledge that this is just one piece of the puzzle. And so the reason I was drawn to this material is, because I grew up in a household of Chicana women. I'm first generation and they came over from Mexico. My mother was fourteen and my grandmother was a mail order bride. And my step-grandfather was a quiet totalitarian from Michigan. I grew up witnessing the women in my family dissenting, protesting, and resisting through craft and physical gestures. So Yoko Ono (in Cut Piece) sitting on the stage and getting her clothes clipped off by racists who didn't understand what they were doing or didn't want to acknowledge what they were doing, except for one guy who's super into it and terrifying as a consequence, while she sits there silently, withstanding it—it was not news to me when I first saw it in Yoko Ono's art.

I grew up watching stuff like that, white men imposing themselves on women of color and women reacting by sitting in a kind of satyagraha. That is, sitting rigidly, staring forward, no emotions in the face while there's this kind of gendered conflict happening in the house. And I also grew up watching the women in my family, whose identities were at risk of being erased, supporting and building those identities through assemblage. In my family, art supplies came from garage sales—chipped china and teddy bears and dolls and lace purchased from neighbors’ lawns and then gathered in the house. My first introduction to this was as an immigrant feminist practice.

LO-B

Perhaps this is a good place to mention that the term artivism comes from a Latinx tradition?

YMM

Yes. Arlene Dávila published a book in 2020 called Latinx Art and she used the term “artivism” there, and that’s when I cathected onto it. I started researching the concept because she was locating it in a Latinx tradition and it turned out for a good reason because Chela Sandoval and Guisela Latorre coined the term in 2008 in relation to the work of Judy Baca.

Sandoval and Latorre were describing a woman of color, activist artist tradition that involved mutual aid, protest and rule and law breaking. I realized that artivism was going to be a good organizing principle for me. But the term needed to be expanded and updated. And I wanted to create an archive of people of color making these kinds of moves just because that's the art that I've largely been drawn to and that of queer non-binary people, people with marginalized gender and sexuality identities and so that became my dream.

LO-B

I just have to thank you because the book you wrote adds volumes to the existing literature on the subject.

YMM

Well, I would love to plant my flag on the moon but I can't, because, Lauren, you and other people have been writing about this for a long time.