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.
