Query: Music and speech
Volokh, Eugene
VOLOKH at law.ucla.edu
Mon Apr 23 11:14:19 PDT 2007
But wouldn't that just suggest that he's using the term figuratively, knowing the original meaning but concluding (whether soundly or not) that the figurative usage is sensible and persuasive even though the analogy is not perfect? (Figurative usages of course often involve imperfect analogies, though one can quarrel with them if one thinks they are too distant.)
Eugene
> -----Original Message-----
> From: HOWARD H SCHWEBER [mailto:hhschweber at facstaff.wisc.edu]
> Sent: Monday, April 23, 2007 11:05 AM
> To: Richard Dougherty
> Cc: Volokh, Eugene; conlawprof at lists.ucla.edu
> Subject: Re: RE: Query: Music and speech
>
> 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
> > > > ________________________________________
> > > >
> > > >
> > > > _______________________________________________
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