Query: Music and speech
Marc Poirier
poiriema at shu.edu
Mon Apr 23 12:27:02 PDT 2007
I read Justice Souter's reference in Hurley to Jackson Pollock, Schoenberg
and Jabberwocky as Professor Tushnet does. But I have to say that
Souter's use of the analogy to authored or composed works of art is to me
incorrect and perhaps even disingenuous. It steers the reader in the
direction of viewing the Boston St. Patrick's Day parade as merely the
work of an artist, one moreover that has no political meaning because it
is nonrepresentational and (to some extent) apparently random. The
decision whether or not to allow gays and lesbians to march in the Boston
St. Patrick's day parade was nothing of this sort. It was chock full of
meaning, as a semiofficial performance of cultural identity as Irish and
(not incidentally) Irish American Catholic. The exclusion was not random
nor aesthetic in motivation, it was political and was dictated by a long
tradition that was being observed. Also political was the conflicting
desire of the ILGA group to participate under a banner that would proclaim
their identity as both Irish Catholics and gays and lesbians. Hurley is
about a cultural ritual and ILGA's desire to amend or parody it. The
Court allows the purity of the St. Patrick's Day Parade to be policed by a
particular group. The analogy to high art, music, and literature, is just
off. The parade is not high art. It is folk art. As such, as
traditional ritual, it functions to create an experience of timeless
sharing of identity, and to reproduce and pass on cultural and political
identity through re-enactment, in this case in public space at a
particular time of year. Authorship is irrelevant. On the other hand,
control of performance to maintain purity and transmit identity from one
generation to the next are central. See generally Susan Scafidi, Who Owns
Culture? (2005).
A certain strand of ethnomusicology would have a lot to say here. It
might help us understand what the stakes are with music and why it at
least sometimes deserve First Amendment protection. Performances of folk
music (and folk dance and art) are often used to express and maintain a
sense of identity. For example, my sister, a budding ethnomusicologist,
is currently studying the way in which the Bulgarian expatriate community
in Boston uses participation in folk dance to reaffirm its individual and
collective identity. Harmless enough, one might think. It's like the
school fight song or any number of other communal rituals. But there's a
well-known, interesting study (can't come up with the author at the
moment) of how Quebecois folk art, music and dance was deployed to
political end in Canada in the 1980s as part of a larger political
expression of separatism. Not so harmless -- the patriotic anthem, the
protest song, the sacred hymn, the counterhymn in another tradition. Music
but more. Hitler bans Jewish music. Governmental banning music where it
has become imbued with this sense of tradition or group identity seems to
me problematic under the First Amendment. For the government to say which
music constitutive (or reconstitutive) or identity can be performed when
and where thus seems to me to map pretty closely onto concerns about
coercing speech or suppressing symbolic action or both -- flag salute,
pledge of allegiance, armband, T shirt.
I'm working on a piece tentatively entitled "The Cultural Property Claim
within the Same Sex Marriage Controversy" that explores some of these
ideas. Happy to share a draft for feedback purposes when it's a bit
further along.
Enough for now.
Warmly,
Marc R. Poirier
Professor of Law
Seton Hall University School of Law
One Newark Center
Newark, NJ 07102
973-642-8478
Somebody has to plant the seed so that sanity can happen on this earth. --
Chogyam Trungpa, Rinpoche
"Mark Tushnet" <mtushnet at law.harvard.edu>
Sent by: conlawprof-bounces at lists.ucla.edu
04/23/2007 12:02 PM
To
"Andrew Koppelman" <akoppelman at law.northwestern.edu>,
<conlawprof at lists.ucla.edu>
cc
Subject
RE: Query: Music and speech
I thought that the passage was trying (with its reference to Jackson
Pollock and Jabberwocky) to identify works of art that were
nonrepresentational and "meaningless," but were nonetheless
constitutionally protected. And Stravinsky's work is (in general) the
musical equivalent of that ("absolute music," I'm given to understand).
Maybe "John Cage" would have been better, but more obscure and so less
effective rhetorically.
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: Andrew Koppelman [mailto:akoppelman at law.northwestern.edu]
Sent: Monday, April 23, 2007 11:52 AM
To: Mark Tushnet; conlawprof at lists.ucla.edu
Subject: RE: Query: Music and speech
But one of Schoenberg's best known pieces, Transfigured Night, is a piece
of program music. I doubt that Kennedy has enough musical sophistication
to have had this distinction in mind. In a lot of discussions, Schoenberg
is prominently cited as "a great composer whose music is very hard to
understand or appreciate." My guess is that that's what Kennedy had in
mind. Even if you feel that way (but do listen to Transfigured Night,
which is one of his more accessible pieces), it's still not clear how this
even arguably distinguishes Schoenberg from other composers for free
speech
purposes.
At 10:23 AM 4/23/2007, Mark Tushnet wrote:
>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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________________________________________
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
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