Music as speech

[Sanford Levinson]

Jack Balkin and I are writing a paper for a conference on "law and music" at
Cardozo at the end of this month. We are looking at certain anti-Semitic
songs, including a composition by the French medieval writer Busnoys, who
refers to "the lying crowd of Jews," and, perhaps more ominously, given that
it is written in English rather than Latin, Sidney Carter's 1915 "Lord of
the Dance," set to the lovely Shaker tune "Simple Gifts", which also appears
to blame Jews for the death of the "Lord of the Dance."  We are asking if a
commitment to textual fidelity--something these days that seems to unite
Dworkin, McConnell, Scalia, and Tribe--requires that someone sing the songs
exactly as written.  Or is it legitimate (i.e., no "free-form
interpretation") to do what Richard Taruskin has suggested, which is to
replace the Latin for "lying crowd of Jews" with the Latin for "sinners"?

Although I'll be interested in your responses, it is not, actually, the
principal question generating this posting.  In thinking about the subject,
it suddenly occurred to me that almost all of the classic controversies
concern choirs, which, obviously, sing words that contain semantic meaning.
Consider, though, a piece of wordless music.  Could *that* raise
Establishment Clause issues (assuming you agree that at least some
music-with-words can raise such issues.)  Start with a medley of the most
sectarian Christmas carols, where every listener supplies the words.  If it
is unconstitutional for the choir to sing, say, Hark the Herald Angels, is
it absolutely all right for the school orchestra to play the music?
(Assume, incidentally, that the title of the medley is "Noel, Noel.")  Now
imagine a piece titled "Christ our Savior," though it contains no tunes that
are recognizably "religious" save, perhaps, to the musicologically
sophisticated.  But the program reads "Smith, Christ Our Savior Symphony."
Is there a problem there?

Sandy Levinson