Query: Music and speech
bobsheridan at earthlink.net
Mon Apr 23 10:17:20 PDT 2007
On the subject of what the FA protects, I respectfully suggest that
it protects freedom of the mind, which includes belief, conscience,
modes of salvation or not, freedom not to believe in any prevailing
orthodoxy, the expression of ones belief using any modality from talk
to print, music, dance, oil, water, carving, chalk, soot, or other
form, and further includes silence and active dissent in any form,
especially the latter. If I've left out anything obvious or not-so-
obvious, that's only because I write in haste. It might be easier to
try to identify what is not protected than what is. I won't bore you
with the usual.
On Apr 23, 2007, at 8:14 AM, Andrew Koppelman wrote:
> 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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