Is it Art? The courts say no, but who makes up these rules?

The courts have spoken: You can't get around the indoor-smoking ban by pretending you're a theatrical production.

Tank's Bar in Babbitt, Minn., insisted its clientele was allowed to smoke because the bar was holding an impromptu showing of "The GunSMOKE Monologues." Wink wink, nudge nudge, cough cough.

The Appeals Court has settled the issue for good with a decision you can sum up thusly: Oh, c'mon.

It's obvious the bar's managers were trying to get around the law, right? They weren't making a grand philosophical point about the nature of Art. They just wanted to let consenting adults light up a nail indoors without standing outside where the winter wind flays faces to the bone. But if they said it's art, well ... isn't it?

Usually we're lenient when it comes to art. If the Guthrie wanted to put on a play called "The Chicago Conflagration," and someone ran onstage to shout FIRE in a crowded theater, there wouldn't be charges. Because the bar was attempting to get around the law by resorting to devilish conceptual subterfuge, we're told, it isn't Art. You can't shout THEATER in a crowd of fire.

But this goes against everything we've been told about Art for the past 50 years. Art is not a matter of conforming to academic rules set down by stern, gray-haired men in frock coats and watch chains; Art is what you say it is.

If I'm standing on a street corner draped in hotdogs and gargling relish, it could be performance art that decries the meat-packing industry. If you fill an entire art gallery with foam peanuts and say it's an indictment of the environmental waste that accompanies modern package-shipping techniques, it's Art. If you walk around the house trying to brush off the peanuts attached to your clothes by static electricity, it's not Art -- unless you film it, and say it is.

Who sez? I sez. Or you. Or the other person who has an idea about the matter. The problem with the 20th century, among other things, was the abandonment of the usual old standards -- i.e., a painting ought to look like something in the actual world, not Spin-Art.

We replaced the old rules with one rule: no rules. Much of the art that followed was brilliant. Much of it looks like a dog tipped over a can of paint and had a seizure on the canvas.

At the Whitney Biennial many years ago I saw a large block of chocolate with a few teeth marks in it, and a puddle of fake barf on the floor. You had to check the brochure to figure out what it was: a protest against modern body images, and the eating disorders that followed. You could imagine the janitor heading up with a mop in hand, and the curator pressing the explanatory brochure in his hand. "No, no, that's supposed to be there. It's selling for $60,000."

The janitor probably wondered about the market value of the Pampers he pulled out of the restroom bin the previous day. OK, well, what about the muddy tracks in the foyer and the stopped-up commode on third? Tell you what, you just give me a list of what is definitely art around here for the next month, and anything else, I'll clean up.

If the bar folks filmed the event as part of a 19-hour-long video installation, they would have had a better case. If they'd had a grant, even better. But no. Here we are: It's not art if the court says it isn't, and that's the part that ought to rankle.