Free Speech Beyond Words: The Surprising Reach of the First Amendment

by Mark V. Tushnet, Alan K. Chen, Joseph Blocher

Overview

A look at First Amendment coverage of music, non-representational art, and nonsense

The Supreme Court has unanimously held that Jackson Pollock’s paintings, Arnold Schöenberg’s music, and Lewis Carroll’s poem “Jabberwocky” are “unquestionably shielded” by the First Amendment. Nonrepresentational art, instrumental music, and nonsense: all receive constitutional coverage under an amendment protecting “the freedom of speech,” even though none involves what we typically think of as speech—the use of words to convey meaning.

As a legal matter, the Court’s conclusion is clearly correct, but its premises are murky, and they raise difficult questions about the possibilities and limitations of law and expression. Nonrepresentational art, instrumental music, and nonsense do not employ language in any traditional sense, and sometimes do not even involve the transmission of articulable ideas. How, then, can they be treated as “speech” for constitutional purposes? What does the difficulty of that question suggest for First Amendment law and theory? And can law resolve such inquiries without relying on aesthetics, ethics, and philosophy?

Comprehensive and compelling, this book represents a sustained effort to account, constitutionally, for these modes of “speech.” While it is firmly centered in debates about First Amendment issues, it addresses them in a novel way, using subject matter that is uniquely well suited to the task, and whose constitutional salience has been under-explored. Drawing on existing legal doctrine, aesthetics, and analytical philosophy, three celebrated law scholars show us how and why speech beyond words should be fundamental to our understanding of the First Amendment.

Product Details

ISBN-13:	9781479873746
Publisher:	New York University Press
Publication date:	02/14/2017
Sold by:	Barnes & Noble
Format:	eBook
Pages:	272
File size:	2 MB

About the Author

Mark V. Tushnet is William Nelson Cromwell Professor of Law at Harvard University and the author of Why the Constitution Matters.
Alan K. Chen is William M. Beaney Memorial Research Chair&Professor of Law at the University of Denver Sturm College of Law. He is the co-author of Public Interest Lawyering: A Contemporary Perspective.
Joseph Blocher is Professor of Law at Duke University School of Law.

Table of Contents

Introduction 1

1 Instrumental Music and the First Amendment 15

2 Art and the First Amendment 70

3 Nonsense and the Freedom of Speech: What Meaning Means for the First Amendment 134

4 Going Further: Additional Problems and Concluding Thoughts 149

Acknowledgments 179

Notes 181

Bibliography 237

Index 255

About the Authors 261

Editorial Reviews

11/14/2016
Lay readers might not typically consider Jackson Pollock’s paintings, Arnold Schönberg’s music, and Lewis Carroll’s poem “Jabberwocky” to be protected expressions under the First Amendment, but law professors Tushnet, Chen, and Blocher effectively explain why they are considered free speech. They open with a significant paradox: as “nonrepresentational art, instrumental music, and nonsense do not employ language in any traditional sense,” and may not even express “articulable ideas,” how can they be considered speech? Their logical, if not intuitive, answer—“Sometimes things are worth expressing even when they cannot be put into words”—frames their exploration of First Amendment theory and the balancing tests that the Supreme Court has applied in the past. The authors ultimately conclude that both case-law and theoretical approaches to free speech issues offer limited general guidance, and that a case-by-case analysis of future controversies is the best one can hope for. This is a valuable introduction to a field that will become only more significant with the development of new media, such as virtual reality and digital mapping, that could merit First Amendment protection. (Feb.)

Publishers Weekly

"Most people assume that the First Amendment protects art and music even when they have nothing to do with politics or public issues, and even when they don't use words. Explaining why is another matter. This gem of a book takes us deep into theories of free expression to answer a question that is far more difficult than it first appears."

Jack Balkin

"The authors of Free Speech Beyond Words turn to other forms of expression that are not literally speech in order to discern some stopping point to prevent tagging everything as speech. [One] lesson to be gleaned from this fine book is that a vibrant First Amendment culture requires a demanding degree of open-mindedness."

Political Science Quarterly

"Free Speech Beyond Words is a deep dive into the First Amendments reach. [It] is rewarding in its meticulous method of analysis. First Amendment scholars will want it as a valuable resource."

Journalism and Mass Communication Quarterly

"This thoughtful book takes on the topic of First Amendment coverage of three under-theorized kinds of content: music, non-representational art and nonsense. Even though most everyone assumes these kinds of content are covered by the First Amendment, why should that be so? The book's authors, in the course of addressing many interesting examples, persuasively articulate their doctrinal, philosophical, aesthetic and linguistic approaches to justify such coverage. They thus make important contributions to First Amendment jurisprudence. I confess I am personally very interested in their important project: it has been thirty years since my Wisconsin Law Review article—which they are kind enough to cite—explored the First Amendment and aesthetic justifications for covering non-representational art. I recommend this well-written book not only to First Amendment scholars but to everyone interested in the First Amendment."

"

Sheldon Nahmod

"Free Speech Beyond Words is a genuine intellectual feast. By its serious consideration of topics at the periphery of most analyses of the First Amendment, such as abstract art or nonsensical speech, it provides deeply illuminating analyses of the wherefores and whys of protecting expression against governmental regulation. In addition, perhaps because of the topics, the essays are simply fun to read as well."

Sanford Levinson

"For someone who does have a deep and abiding interest in [the subject of free speech], or even an interest in the First Amendment in general, this very detailed, well-reasoned work would be an invaluable resource."

Journal of Intellectual and Freedom Privacy

"This is a valuable introduction to a field that will become only more significant with the development of new media, such as virtual reality and digital mapping, that could merit First Amendment protection."- Publishers Weekly

"This thoughtful book takes on the topic of First Amendment coverage of three under-theorized kinds of content: music, non-representational art and nonsense. Even though most everyone assumes these kinds of content are covered by the First Amendment, why should that be so? The book's authors, in the course of addressing many interesting examples, persuasively articulate their doctrinal, philosophical, aesthetic and linguistic approaches to justify such coverage. They thus make important contributions to First Amendment jurisprudence. I confess I am personally very interested in their important project: it has been thirty years since my Wisconsin Law Review article—which they are kind enough to cite—explored the First Amendment and aesthetic justifications for covering non-representational art. I recommend this well-written book not only to First Amendment scholars but to everyone interested in the First Amendment."

-Sheldon Nahmod,University Distinguished Professor, IIT Chicago-Kent College of Law

" Free Speech Beyond Words is a genuine intellectual feast. By its serious consideration of topics at the periphery of most analyses of the First Amendment, such as abstract art or “nonsensical” speech, it provides deeply illuminating analyses of the wherefores and whys of protecting expression against governmental regulation. In addition, perhaps because of the topics, the essays are simply fun to read as well."-Sanford Levinson,author of An Argument Open to All: Reading the Federalist in the 21st Century

"For someone who does have a deep and abiding interest in [the subject of free speech], or even an interest in the First Amendment in general, this very detailed, well-reasoned work would be an invaluable resource."- Journal of Intellectual and Freedom Privacy

"Most people assume that the First Amendment protects art and music even when they have nothing to do with politics or public issues, and even when they don't use words. Explaining why is another matter. This gem of a book takes us deep into theories of free expression to answer a question that is far more difficult than it first appears."-Jack Balkin,Yale Law School

“The authors of F ree Speech Beyond Words turn to other forms of expression that are not literally “speech” in order to discern some stopping point to prevent tagging everything speech…[One] lesson to be gleaned from this fine book is that a vibrant First Amendment culture requires a demanding degree of openmindedness.”- Political Science Quarterly

“ Free Speech Beyond Words is a deep dive into the First Amendment’s reach…[It] is rewarding in its meticulous method of analysis. First Amendment scholars will want it as a valuable resource.”- Journalism and Mass Communication Quarterly

From the Publisher

12/01/2016
Tushnet (William Nelson Cromwell Professor of Law, Harvard Univ. Law Sch.; Why the Constitution Matters), Alan K. Chen (William M. Beaney Memorial Research Chair, Univ. of Denver Sturm Coll. of Law), and Joseph Blocher (law, Duke Univ. Sch. of Law) here collaborate to explore the unusual applications of the First Amendment. Throughout, the authors examine the protections of free speech and the nature of speech itself, using art and nonsense speech as examples. The first chapter, written by Chen, draws on the work of linguistic and legal philosophers in arguing that instrumental compositions are protected by the First Amendment because they represent ideas and can trigger protest actions. The Supreme Court case of Morse v. Frederick illustrates the concept of nonsense speech—the decision upheld the suspension of a high school student who displayed a banner reading "Bong Hits 4 Jesus" at an off-campus school event. The student argued it was a joke, but the court ruled schools can restrict speech promoting illegal drug use. VERDICT This thoughtful book debates the nature of speech itself. Law students and legal professionals will want to read it, though general readers will want to look elsewhere. Recommended for law and academic libraries.—Becky Kennedy, Atlanta-Fulton P.L.

Library Journal