Query: Music and speech

[Sean Wilson]

... let me make a philosophic observation that may or may not be helpful to the question. The basic issue here is whether the first amendment protects art. Art can be understood to belong to a species of expression, but it may or may not be a speicies of "talking" (and if so, probably incidentally so). So the question becomes not whether music is "speech," as though that word is a picture;  the question becomes whether the concept of speech entails a talking-centric notion ONLY or also entails expression that is not an act of "talking" for its own sake. (I've been putting the word talking in quotes because I think it is too narrow of a concept for even the literal part of the idea to which I refer. It is really "sententializing" -- forming sentences in another's brain via the combination of symbols, alphabetic or otherwise. Hence, those things that are sententializing are a kind of "talking").  So my point is this: this dispute is not about whether something is "speech," it
 is about whether the concept of speech means to include art along with sententializing. We would all do well to observe that this is really a separate issue rather than a linguistic-reference question. Indeed, there are compelling reasons to include art as having some protection apart from playing a word game. Whether art is protected should stand on its own logic and not word-reference game.  
 
Dr. Sean Wilson, Esq. 
Penn State University
Website: http://ludwig.squarespace.com/home/
Email discussion group:  http://groups.yahoo.com/group/TheLudwigGroup 
SSRN papers: http://ssrn.com/author=596860
Conference papers: http://ludwig.squarespace.com/research-agenda/



----- Original Message ----
From: Andrew Koppelman <akoppelman at law.northwestern.edu>
To: conlawprof at lists.ucla.edu
Sent: Monday, April 23, 2007 11:14:11 AM
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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