Free Speech Beyond Words
The Surprising Reach of the First Amendment
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- $16.99
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- $16.99
Publisher Description
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.
PUBLISHERS WEEKLY
Lay readers might not typically consider Jackson Pollock's paintings, Arnold Sch nberg'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.
