On his (and Alan Chen’s and Joseph Blocher’s) book Free Speech Beyond Words: The Surprising Reach of the First Amendment
Cover Interview of March 14, 2017
In a nutshell
The First Amendment says that “freedom of speech”
shall not be abridged. The Supreme Court has said that the First Amendment
unquestionably covers Jackson Pollock’s paintings, Arnold Schoenberg’s music,
and Lewis Carroll’s “Jabberwocky.” Why do these forms of expression get
constitutional protection? The paintings and the music aren’t “speech” at all,
and nonsense is basically a string of meaningless sounds. So, the Constitution’s
text can’t give us the answer.
Professors Blocher, Chen, and I tried to figure out that answer
in Free Speech Beyond Words, and, to our surprise, we found that
providing the answer is harder than most people think. We look at
constitutional doctrine, academic theories seeking to explain why the
Constitution protects free speech, and philosophical accounts of meaning. We
examine those theories to see whether they apply to art, instrumental music,
and nonsense.
The Supreme Court is clear about its conclusion that those things
are covered by the First Amendment. The doctrines it deploys in First Amendment
cases, though, really don’t support that conclusion. Or, at least, they don’t
support that conclusion without a fair amount of tugging and hauling. The chapter
on abstract art grapples with these doctrinal problems.
The chapter on instrumental music deals with theories of the
First Amendment. One prominent theory says that free speech is protected
because it allows us to discover truth – factual, moral, or political. But it’s
hard to see how looking at an abstract painting or listening to a Beethoven
string quartet leads to the discovery of truth. Or, at least, it’s hard to see
how those activities have that effect any more than a host of other activities –
running a small business, for example – would. But of course we have no serious
problems – and certainly no First Amendment problems – with a host of business regulations.
Another prominent theory seems more promising. Artistic
activities are expressions of a person’s autonomy, and freedom of speech is
often defended because expression is one of the ways people use to be
themselves. Here too the problem is that lots of other activities – again,
running a small business is an example – are ways people express themselves.
Free speech is important for making sure our government is
truly democratic: If you can’t criticize the government, how can we ever change
the direction our nation is moving? But, again, the connection between
democratic self-government and abstract art, instrumental music, and nonsense
turns out to be really hard to figure out.
Chapter Three connects nonsense to several philosophical
accounts of meaning – and meaninglessness. It suggests that we have come to
understand the word “speech” to encompass nonsense. Once we do, that social
understanding properly informs how we apply “speech” in practice.
In the end, we don’t disagree with the Court’s conclusion.
We do devote some space to ask whether other forms of expression – artistic
dance, sports like mixed martial arts, cooking with unique recipes, designing
parks, and more – should be covered by the First Amendment. Our primary goal,
though, is to show that the answer to the question “Why does the First
Amendment cover art, music, and nonsense” is easy, but that defending the
answer is quite difficult.
[T]he Holocaust transformed our whole way of thinking about war and heroism. War is no longer a proving ground for heroism in the same way it used to be. Instead, war now is something that we must avoid at all costs—because genocides often take place under the cover of war. We are no longer all potential soldiers (though we are that too), but we are all potential victims of the traumas war creates. This, at least, is one important development in the way Western populations envision war, even if it does not always predominate in the thinking of our political leaders.Carolyn J. Dean, Interview of February 01, 2011
The dominant premise in evolution and economics is that a person is being loyal to natural law if he or she attends to self’s interest and welfare before being concerned with the needs and demands of family or community. The public does not realize that this statement is not an established scientific principle but an ethical preference. Nonetheless, this belief has created a moral confusion among North Americans and Europeans because the evolution of our species was accompanied by the disposition to worry about kin and the collectives to which one belongs.Jerome Kagan, Interview of September 17, 2009
In a nutshell
The First Amendment says that “freedom of speech” shall not be abridged. The Supreme Court has said that the First Amendment unquestionably covers Jackson Pollock’s paintings, Arnold Schoenberg’s music, and Lewis Carroll’s “Jabberwocky.” Why do these forms of expression get constitutional protection? The paintings and the music aren’t “speech” at all, and nonsense is basically a string of meaningless sounds. So, the Constitution’s text can’t give us the answer.
Professors Blocher, Chen, and I tried to figure out that answer in Free Speech Beyond Words, and, to our surprise, we found that providing the answer is harder than most people think. We look at constitutional doctrine, academic theories seeking to explain why the Constitution protects free speech, and philosophical accounts of meaning. We examine those theories to see whether they apply to art, instrumental music, and nonsense.
The Supreme Court is clear about its conclusion that those things are covered by the First Amendment. The doctrines it deploys in First Amendment cases, though, really don’t support that conclusion. Or, at least, they don’t support that conclusion without a fair amount of tugging and hauling. The chapter on abstract art grapples with these doctrinal problems.
The chapter on instrumental music deals with theories of the First Amendment. One prominent theory says that free speech is protected because it allows us to discover truth – factual, moral, or political. But it’s hard to see how looking at an abstract painting or listening to a Beethoven string quartet leads to the discovery of truth. Or, at least, it’s hard to see how those activities have that effect any more than a host of other activities – running a small business, for example – would. But of course we have no serious problems – and certainly no First Amendment problems – with a host of business regulations.
Another prominent theory seems more promising. Artistic activities are expressions of a person’s autonomy, and freedom of speech is often defended because expression is one of the ways people use to be themselves. Here too the problem is that lots of other activities – again, running a small business is an example – are ways people express themselves.
Free speech is important for making sure our government is truly democratic: If you can’t criticize the government, how can we ever change the direction our nation is moving? But, again, the connection between democratic self-government and abstract art, instrumental music, and nonsense turns out to be really hard to figure out.
Chapter Three connects nonsense to several philosophical accounts of meaning – and meaninglessness. It suggests that we have come to understand the word “speech” to encompass nonsense. Once we do, that social understanding properly informs how we apply “speech” in practice.
In the end, we don’t disagree with the Court’s conclusion. We do devote some space to ask whether other forms of expression – artistic dance, sports like mixed martial arts, cooking with unique recipes, designing parks, and more – should be covered by the First Amendment. Our primary goal, though, is to show that the answer to the question “Why does the First Amendment cover art, music, and nonsense” is easy, but that defending the answer is quite difficult.