UCLA lawprof Eugene Volokh comments on the legal aspects of German artist Gregor Schneider's planned performance piece that would include an actual person dying. His "tentative answer" is that it's probably legal: "The dying are as entitled to be in a place as anyone else, and invite people to visit them or see them. Nor is there any reason that I can see why a museum's drawing attention to this, or charging money for it, would be illegal under existing law."
There are also First Amendment considerations at play: "If the dying person is using the occasion to speak to people who come, either as a group or one at a time, it seems to me that this would be constitutionally protected speech, even if admission is charged. ... The tougher constitutional question is whether simply deliberately going to die in a place set aside for such an occasion, and publicized as a place for such an occasion, is protected expression even if nothing is said. That's hard to tell; compare Rumsfeld v. FAIR (holding that conduct may be protected by the First Amendment only if it's 'inherently expressive' so that '[t]he expressive component ... [is] created by the conduct itself [rather than] by the speech that accompanies it,' something that might not be so given that death as such is not inherently expressive) with Brown v. Louisiana ... (holding that silent presence at a racially segregated library was protected by the 'freedom of speech and of assembly'). ... I'm sure that ... some audience members may just ogle rather than being enlightened. ... And I sympathize with concerns that some of the people being exhibited might feel degraded by the process. But I don't think this justifies blocking those dying people ... who choose to display themselves in public from doing so (especially if they are speaking in the process) ...."
Richard Lacayo had some thoughts on Schneider's project last month.