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