Mark V. Tushnet


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.