This dissertation takes as its starting point the frequent invocation of First Amendment rights by artists, and how the question of free speech became the centerpiece of national identity during the latter part of 20^th century. This notion of freedom of expression is a relatively modern idea—one that is connected to profound shifts in American politics and personhood. Those ideas came to a head during the “Culture Wars” in the 1980s and ’90s. Those wars, and the ways they manifested themselves through performance, provide the historical backdrop for this dissertation.

The Constitutional right to free expression has become one of the defining aspects of the American identity during the 20^th century—speech (in all of its manifestations) equals freedom (in all of its appearances). In this way, artists are articulating a major theme in the American experience. However, the idea of human rights is relatively new, and the idea that they apply to everyone is a particularly recent concept.

There has been a perception that freedom of speech is a natural right, and an indispensable aspect of what it is to be a free human being. This thinking became prevalent during the volatile political atmosphere of the culture wars, specifically in competing interpretations of Constitutional law.

This study not only explores the controversies surrounding certain cases, but also problematizes essentialist notions of free speech, demonstrating—through a pragmatic analysis of theories of personhood and American law—that free speech is far more situational and contingent, relying upon the cultural tides of the moment.

This dissertation makes the argument that way to answer essentialism of one side is not to respond with another series of overarching theories of another stripe. This is a pragmatic approach to law, politics, and culture, and a portion of this dissertation also investigates the founders of pragmatism (William James, Charles Sanders Peirce, John Dewey, and Oliver Wendell Holmes, Jr.) and how their ideas have influenced and continue to shape the American intellectual landscape.