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

The wide angle

Our questions here are not terribly practical ones in the United States. No one really advocates for regulating art or music as such. True, Nazi Germany did suppress “degenerate” art and music – abstract art and jazz – and the former Soviet Union suppressed abstract art in favor of “socialist realism.” But we don’t think that anything similar is likely in the United States. (Sometimes questions do come up about whether the government can refuse to support some kinds of art that it couldn’t suppress, but those questions are different from the ones we deal with.)

We got to thinking about these questions because we were puzzled about constitutional doctrine and theory. Often we don’t know what the answer to a constitutional question is, and try to figure out what doctrine and theory tell us about the answer. A current example: Does President Trump’s receipt of income from payments to his hotels from foreigners violate the Constitution’s Emoluments Clause? Lawyers look to doctrine, practice, and theory to come up with an answer.

Here, though, we know the answer from the beginning – of course the First Amendment protects these works. But getting from doctrine and theory to that answer turns out to be tricky – sometimes, trickier than coming up with an answer about the Emoluments Clause.

That fact was, for us, an intriguing one. We think that explaining why some easy answers have complicated explanations illuminates broader themes in constitutional law. For example, sometimes we might come up with a complicated rule that tracks the Constitution’s words and purposes pretty well, but the rule is quite complicated. Sometimes it’s better to have a simple rule that occasionally produces results that aren’t easily defended if you look at why we have the rule. And sometimes it’s a bad idea to adopt an approach that requires judges to do a lot of analytic work to get to a result they know is right even before they start thinking about the problem.

We use the peculiar problems of “free speech beyond words” to get us looking at the big picture, which is: How should we think about constitutional doctrine, both the First Amendment and the rest of the document?