Abstract
Imagine being asked whether the First Amendment protects instrumental music, ambiguous art, or nonsensical speech. Most people would answer in the affirmative. Now imagine trying to explain why. Free Speech Beyond Words: The Surprising Reach of the First Amendment does just that.
Many of us who teach mass communication law tell our students of the First Amendment’s long reach. Law professors Mark Tushnet, Alan Chen, and Joseph Blocher drill deep into that issue. In a single ruling, the U.S. Supreme Court held that Jackson Pollock’s paintings, Arnold Schoenberg’s music, and Lewis Carroll’s poem Jabberwocky are “unquestionably shielded” by the First Amendment. “As a legal matter, the Court’s conclusion is correct,” the authors write, “but its premises are murky.”
It is those premises that Tushnet, Chen, and Blocher explore. Not only have the courts generally failed to provide adequate explanations, but the scholarly literature also lacks comprehensive discussion of the theoretical or doctrinal foundations for the constitutional protection. These authors attempt to fill that void, utilizing normative theoretical perspectives traditionally used in speech cases: the marketplace of ideas and truth discovery, the democratic process, and autonomy/self-realization. In addition, they invoke relevant cases and the work of noteworthy jurists and scholars.
After an introductory chapter, the book devotes a chapter to each of three primary areas: instrumental music, nonrepresentational art, and nonsensical expression. Multiple examples are provided as subjects for the analyses—for instance, Beethoven’s Symphony No. 5, Jackson Pollock’s “nonrepresentational art,” and the words “Bong Hits 4 Jesus”—thought by many to be nothing more than nonsense—that were at the root of a U.S. Supreme Court case. Should the First Amendment protect these? Why or why not?
The authors’ explanations arise from “cobbling together bits and pieces from a range of approaches to constitutional law.” This “theoretical eclecticism” might be an appropriate way to think about constitutional problems more generally. The inquiry’s strength lies less in the conclusions reached than in the process. It is a procedure that forces us to methodically analyze how and why the First Amendment covers anything. It can be a struggle, but it is this process that emerges as the book’s most valuable contribution.
A challenge in evaluating instrumental music lies in discerning whether it has meaning rather than being a collection of notes or, at best, an expression of emotions. From many sources, we know that many composers intend to tell particular stories with their works. Yet the authors write, “It is doubtful whether instrumental music, unlike music with lyrics, can ever be said to have a specific viewpoint.” This seems to beg the question about music as language. Free Speech Beyond Words takes a limited approach in addressing this, and this illustrates a missed opportunity. While the book is masterful in using free speech theory in its analyses, it stops there. Granted, this narrow approach is by design and provides focus. But stepping outside the law to, for example, consult a musician’s (or in the next chapter, an artist’s) perspective could have been valuable. Looking outside the law, for example, reveals musicians like Victor Wooten who explain how music is a language. Seeing this issue through the musician’s lens not only provides a broader perspective, but it also enhances the free speech analysis. If it is accepted that music is a language, the argument that it is expressing meaning even when it lacks words is strengthened.
In evaluating nonrepresentational art—from Pollock to a car converted into an outdoor planter—and its possible First Amendment coverage, the authors ask whether it should matter that what some artworks convey can be unclear. While acknowledging that the First Amendment’s coverage of art may “rest on shaky foundations that ought to be shored up,” they also suggest that the questions they raise need not impair the conclusion that art is indeed covered.
The analysis of the last of the major topics explored, nonsense, may most resemble traditional speech analysis, probably because it is often expressed through speech. Here, too, the authors ask about meaning: If meaning is crucial in establishing the boundaries of the First Amendment, then how can the amendment protect expression that conveys no meaning? This raises additional issues. First, requiring speech to represent ideas or convey meaning would seem to eliminate a lot of speech from First Amendment protection. Some would say, for example, that a lot of meaningless nonsense was expressed during the 2016 U.S. presidential campaign. Should those messages—perhaps nonsensical, but also political speech—be deprived of First Amendment coverage? Certain “nonsense” may also contribute to truth discovery, playing a Miltonian role in the marketplace of ideas, grappling with other messages through juxtaposition. Second, assessing meaning can become content-based, a problematic endeavor within this evaluative context. To claim, for example, that “Bong Hits 4 Jesus” should be deprived of First Amendment coverage because it lacks meaning is highly subjective. To some, the phrase conveys meaning—perhaps, for example, support of marijuana legalization and mockery of religion.
Free Speech Beyond Words is a deep dive into the First Amendment’s reach—perhaps excessively deep for some readers. It is not an easy read (some repetition is distracting), and therefore not recommended for undergraduate classes. Even graduate students may find it inaccessible. That said, it is rewarding in its meticulous method of analysis. First Amendment scholars will want it as a valuable resource.