Query: Music and speech

HOWARD H SCHWEBER hhschweber at facstaff.wisc.edu
Mon Apr 23 11:04:37 PDT 2007


Because of the way he used it.  Scalia's statement "the majority has mistaken a Kulturkampf for a fit of pique" implies that a Kulturkampf is a proper democratic process with which the Court has no business interfering.  But of course, Bismarck's campaign against the Church would obviously be unconstitutional in the United States.

Howard Schweber

----- Original Message -----
From: Richard Dougherty <doughr at udallas.edu>
Date: Monday, April 23, 2007 10:51 am
Subject: Re:  RE: Query:  Music and speech
To: "volokh, eugene" <volokh at law.ucla.edu>, conlawprof at lists.ucla.edu


> A slightly tangential response -- almost any educated Catholic of a 
> certain age (Scalia qualifies) would know immediately what Kulturkampf 
> refers to, as they would know that "from each according to his 
> ability, to each according to his need" comes from Marx (though many 
> of my students think it is in the Constitution -- the income tax, they 
> tell me).
>  
>  
>  Richard J. Dougherty
>  
>  
>  -----Original Message-----
>  From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
>  Sent 4/23/2007 11:08:24 AM
>  To: conlawprof at lists.ucla.edu
>  Subject: RE: RE: Query: Music and speech
>  
>  	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.
>  > 
>  _______________________________________________
>  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