Music as speech

[Alan Gunn]

In message Mon, 6 Apr 1998 14:40:57 -0500,
  Sanford Levinson <SLEVINSON at MAIL.LAW.UTEXAS.EDU>  writes:

> 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
>
  Very interesting. Here's a further complication: Is Humperdinck's "Evening
Prayer" out of bounds--assuming that, in some circumstances, Christian music
is? Its title sounds religious, but it's from "Hansel und Gretel," an opera
based on a harmlessly secular story, in which, however, somebody prays. Or
how about "The Water Is Wide," originally an English love song, the tune of
which is now used by many Protestants as a hymn.
  Incidentally, the tune used today for "Lord of the Dance" (lovely tune,
dumb text) was played last year in a car commercial--Toyota, if
memory serves, though I may be wrong about this. Christians inflicting
music on helpless bystanders is not the only problem in this area;
corporations stealing out-of-copyright religious music to peddle cars isn't
wonderful either. Not that it's a constitutional problem.
  One possible difference between choral music and instrumental music may be
this: a claim by a non-Christian that it is offensive to have to sing
particular texts may have some merit (along the lines of the "Live Free or
Die" slogan on the NH license plate, though I never liked that opinion much):
 a claim by a non-Christian trumpet player that having to play a b flat,
then an a, etc. is offensive would seem more strained. On the other hand,
a high school band director who had the band play the Horst Wessel song
ought to be sacked. Maybe the lesson of all this is that there's nothing in
the world--not even music--that can't be misused.
   The trouble with constitutionalizing all this is that it leaves little if
any room for judgment. Sensible music directors in public schools with
non-Christian students shouldn't schedule a program of all religious music;
sensible non-Christian students shouldn't complain if a program contains
one or two "religious" tunes. Turn this into law, and either the Supreme
Court becomes the ultimate music director, deciding case by case whether the
harmful effects of hearing "Adeste Fidelis" were adequately offset by "The
Dreidel Song," as plastic reindeer can balance a creche, or else all the
religious music has to be banned entirely, to the detriment of the music
program and civilization generally.

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Alan Gunn
Notre Dame Law School