Query: Music and speech
Volokh, Eugene
VOLOKH at law.ucla.edu
Mon Apr 23 09:08:24 PDT 2007
A slightly tangential question -- why is there some doubt whether Scalia realizes that Kulturkampf refers to, well, the Kulturkampf, as well as to conflicts between secular and religious authorities more broadly? I should say that I didn't know the term myself before seeing it in Scalia's opinion. But the rarity of the word suggests that those who know it, or those who learn it, will end up knowing the specific episode to which it returns, if only because that's the first definition for it in some dictionaries and the only one in others. Why is there doubt that Scalia knows the meaning of the unusual words he uses?
Eugene
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of
> HOWARD H SCHWEBER
> Sent: Monday, April 23, 2007 8:43 AM
> To: Mark Tushnet
> Cc: conlawprof at lists.ucla.edu
> Subject: Re: RE: Query: Music and speech
>
> In its time, Schoenberg's music was considered radical for
> two distinct reasons. First, as Jewish and modern it was
> "deviant" by both Nazi and Communist standards. Second, in
> his more abstract pieces, Schoenberg's rejection of
> hierarchical musical structures such as key signature and
> chord progression was an explicitly anti-authoritarian
> political text expressed through music. (Actually, much of
> his music if far more conventional by modern standards -- for
> earlier pieces like "Transfigured Night" and "Pelleas and
> Melisande" think Wagner meets Stravinsky.)
>
> So the historically interesting point about the censorship of
> Schoenberg's music is that it *was* -- or was taken to be --
> music that conveyed a specific message. Whether this thought
> ever occurred to the members of the Court is an open question
> (as is the question of whether Scalia realizes that
> "Kulturkampf" refers to an effort by the German government
> under Bismarck to suppress the Catholic Church.)
>
> Howard Schweber
> Dept. of Poli. Sci.
> UW-Madison
>
> ----- Original Message -----
> From: Mark Tushnet <mtushnet at law.harvard.edu>
> Date: Monday, April 23, 2007 9:26 am
> Subject: RE: Query: Music and speech
> To: Andrew Koppelman <akoppelman at law.northwestern.edu>,
> conlawprof at lists.ucla.edu
>
>
> > 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
> > ________________________________________
> >
> >
> > _______________________________________________
> > To post, send message to Conlawprof at lists.ucla.edu To subscribe,
> > unsubscribe, change options, or get password, see
> > http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
> >
> > Please note that messages sent to this large list cannot
> be viewed as
> > private. Anyone can subscribe to the list and read
> messages that are
> > posted; people can read the Web archives; and list members can
> > (rightly or wrongly) forward the messages to others.
> >
> > _______________________________________________
> > To post, send message to Conlawprof at lists.ucla.edu To subscribe,
> > unsubscribe, change options, or get password, see
> > http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
> >
> > Please note that messages sent to this large list cannot
> be viewed as
> > private. Anyone can subscribe to the list and read
> messages that are
> > posted; people can read the Web archives; and list members can
> > (rightly or wrongly) forward the messages to others.
> >
> _______________________________________________
> To post, send message to Conlawprof at lists.ucla.edu To
> subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
> Please note that messages sent to this large list cannot be
> viewed as private. Anyone can subscribe to the list and read
> messages that are posted; people can read the Web archives;
> and list members can (rightly or wrongly) forward the
> messages to others.
>
More information about the Conlawprof
mailing list