Query: Music and speech
Volokh, Eugene
VOLOKH at law.ucla.edu
Mon Apr 23 09:02:34 PDT 2007
Small note: I think Hurley, which contains the reference to Schoenberg, was written by Justice Souter.
Eugene
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Mark Tushnet
> Sent: Monday, April 23, 2007 8:57 AM
> To: Andrew Koppelman; conlawprof at lists.ucla.edu
> Subject: RE: Query: Music and speech
>
> I thought that the passage was trying (with its reference to
> Jackson Pollock and Jabberwocky) to identify works of art
> that were nonrepresentational and "meaningless," but were
> nonetheless constitutionally protected. And Stravinsky's
> work is (in general) the musical equivalent of that
> ("absolute music," I'm given to understand). Maybe "John
> Cage" would have been better, but more obscure and so less
> effective rhetorically.
>
> Mark Tushnet
> William Nelson Cromwell Professor of Law
> 223 Areeda Hall
> Harvard Law School
> Cambridge, MA 02138
> ph: 617-496-4451 (office); 202-374-9571 (mobile); 617-496-4866 (fax)
>
> -----Original Message-----
> From: Andrew Koppelman [mailto:akoppelman at law.northwestern.edu]
> Sent: Monday, April 23, 2007 11:52 AM
> To: Mark Tushnet; conlawprof at lists.ucla.edu
> Subject: RE: Query: Music and speech
>
> But one of Schoenberg's best known pieces, Transfigured
> Night, is a piece of program music. I doubt that Kennedy has
> enough musical sophistication to have had this distinction in
> mind. In a lot of discussions, Schoenberg is prominently
> cited as "a great composer whose music is very hard to
> understand or appreciate." My guess is that that's what
> Kennedy had in mind. Even if you feel that way (but do
> listen to Transfigured Night, which is one of his more
> accessible pieces), it's still not clear how this even
> arguably distinguishes Schoenberg from other composers for
> free speech purposes.
>
>
> At 10:23 AM 4/23/2007, Mark Tushnet wrote:
> >Perhaps the implied contrast is with programmatic music (I
> thought that
> >was the term, but Wikipedia has "program music"), intended to evoke
> >specific images in the listener's mind, and therefore (perhaps)
> >intended to convey a particularized message. (I've never fully
> >understood how programmatic music was supposed to do that,
> and Haydn's
> >symphonies weren't programmatic in that sense. But maybe
> Ferde Grofe's
> >Grand Canyon Suite is.)
> >
> >Mark Tushnet
> >William Nelson Cromwell Professor of Law
> >223 Areeda Hall
> >Harvard Law School
> >Cambridge, MA 02138
> >ph: 617-496-4451 (office); 202-374-9571 (mobile); 617-496-4866 (fax)
> >
> >-----Original Message-----
> >From: conlawprof-bounces at lists.ucla.edu
> >[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Andrew
> >Koppelman
> >Sent: Monday, April 23, 2007 11:14 AM
> >To: conlawprof at lists.ucla.edu
> >Subject: Query: Music and speech
> >
> >
> >The Supreme Court has declared that "[m]usic, as a form of
> expression
> >and communication, is protected under the First Amendment." Ward v.
> >Rock Against Racism, 491 U.S. 781, 790 (1989). Its reasons for so
> >declaring largely had to do with the reasons that have been
> offered for censoring it:
> >
> >"Music is one of the oldest forms of human expression. From Plato's
> >discourse in the Republic to the totalitarian state in our
> own times,
> >rulers have known its capacity to appeal to the intellect and to the
> >emotions, and have censored musical compositions to serve
> the needs of
> >the state. See 2 Dialogues of Plato, Republic, bk. 3, pp.
> 231, 245-248 (B.
> >Jowett transl., 4th ed. 1953) ("Our poets must sing in another and a
> >nobler strain"); Musical Freedom and Why Dictators Fear It,
> N.Y. Times,
> >Aug. 23, 1981, section 2, p. 1, col. 5; Soviet Schizophrenia
> toward Stravinsky, N.Y.
> >Times, June 26, 1982, section 1, p. 25, col. 2; Symphonic Voice from
> >China Is Heard Again, N.Y. Times, Oct. 11, 1987, section 2,
> p. 27, col.
> >1. The Constitution prohibits any like attempts in our own
> legal order."
> >
> >Id. In what appears to be its only other discussion of the
> issue, the
> >Court stated that "a narrow, succinctly articulable message is not a
> >condition of constitutional protection, which if confined to
> >expressions conveying a "particularized message," would
> never reach the
> >unquestionably shielded painting of Jackson Pollock, music of Arnold
> >Schöenberg, or Jabberwocky verse of Lewis Carroll." Hurley v.
> >Irish-American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S.
> >557, 569 (1995). This passage's singling out of Schoenberg
> is odd: is
> >there a more particularized message in a Haydn symphony?
> >
> >I've been looking for an account of how it follows from foundational
> >free speech theory that music is protected. A literature
> search by my
> >assistant came up dry. The answer has obvious implications
> for other
> >categories of speech that haven't got an articulable
> message, such as pornography.
> >
> >I'd be grateful for any help with this question. In
> particular, if you
> >think that you've written something that directly addresses
> this, and
> >that I haven't found, I'd be very glad to hear from you.
> >
> >
> >
> >
> >________________________________________
> >
> >Andrew Koppelman
> >Professor of Law and Political Science
> >Northwestern University School of Law
> >357 East Chicago Avenue
> >Chicago, IL 60611-3069
> >
> >Visiting Professor of Law, University of Chicago, Spring 2007
> >
> >(312) 503-8431
> >mailto:akoppelman at northwestern.edu
> >________________________________________
> >
> >
> >_______________________________________________
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> ________________________________________
>
> Andrew Koppelman
> Professor of Law and Political Science
> Northwestern University School of Law
> 357 East Chicago Avenue
> Chicago, IL 60611-3069
>
> Visiting Professor of Law, University of Chicago, Spring 2007
>
> (312) 503-8431
> mailto:akoppelman at northwestern.edu
> ________________________________________
>
>
> _______________________________________________
> To post, send message to Conlawprof at lists.ucla.edu To
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> Please note that messages sent to this large list cannot be
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