Music as speech: a First Amendment category unto itself.

• Author: Munkittrick, David

"Strictly speaking you cannot write about music; music expresses what it has to say in its own terms, and you cannot translate these into language.... (1)

1. MUSIC SPEAKS II. BETWEEN SOUND AND MIND III. MUSIC IN FREE-SPEECH JURISPRUDENCE A. Truth Through Music B. You Are What You Listen to C. Music in a Democratic Order IV. MUSIC, GOVERNMENT, AND THE MARKET A. Government Funding for Music and the Arts B. As Nasty as the Market Wants to Be V. CONCLUSION I. MUSIC SPEAKS

   November 9, 1989: the fall of the Berlin Wall--one of the most significant political events of the twentieth century--was accompanied by music. Cellist Mstislav Rostropovich was moved by television images of East Berliners crossing the Wall and flew to Berlin to give an impromptu solo recital at the Wall's base. (2) For his program, Rostropovich chose works nearly 300 years old: the Bach (3) cello suites. (4) Despite the lack of language or text, the music carried a powerful contemporary message. It was a consummate statement for freedom and political support, broadcast around the world.

   August 2008: Russia and Georgia clashed in a military conflict that drew the concerned eyes of the world. (5) Again, the event was immediately followed by music. With distant smoke from burning villages in the background, conductor Valery Gergiev led a concert in the blacked-out capital of South Ossetia. (6) Gergiev explicitly denounced Georgia's "huge act of aggression" and praised Russian actions, (7) but the concert's assertion of Russian nationalism was manifest in the music itself. (8) The program included Dmitri Shostakovich's (9) poignant Seventh Symphony, written amidst the German siege of Leningrad during the Second World War. (10) In a subsequent interview, Gergiev stated "Shostakovich 'was writing against evil.'" (11) Here again, music, imbued with both historical and contemporary relevance, delivered an unmistakable message.

   In the United States as well, where art music (12) has lost most of its "cultural capital," (13) music permeates major political events. Musical responses to 9/11 included a new work, On the Transmigration of Souls, by the U.S. composer John Adams, as well as a reading of victims' names at Ground Zero accompanied by Bach's Cello Suite in C Minor. (14) Samuel Barber's (15) Adagio for Strings, composed in 1936 and initially criticized for not being identifiably American, was also performed at Ground Zero, as it was at the funerals of Presidents Franklin Delano Roosevelt and John F. Kennedy. (16) More recently, Barack Obama's presidency was ushered in by the strains of a new chamber work by the American film composer John Williams. (17)

   Such events exemplify the essential role art music plays in the political world. Music has an unrivaled ability to solemnize events and to express political sentiment without direct confrontation. This perhaps begins to explain the U.S. judiciary's assumption that music is a fully protected mode of expression under the First Amendment. Indeed, the few judicial opinions that address music in light of free speech have asserted as much without explanation. (18) Yet it is far from apparent why music, particularly music without lyrics, should always be treated akin to political speech under First Amendment doctrine and theory. After all, without lyrical content, music is, on its face, devoid of objective meaning. (19) While the Supreme Court has yet to develop a thorough rationale for protecting art as speech, (20) many commentators have provided excellent theories of First Amendment protection for visual art. (21) Such a task is yet to be undertaken specifically for music. As the Supreme Court declared, "[e]ach medium of expression, of course, must be assessed for First Amendment purposes by standards suited to it, for each may present its own problems." (22)

   This Note assesses music under the First Amendment by providing a framework for explaining music's protection as speech. To do so, the discussion moves from the cultural status of music in society, to current governmental and judicial approaches to music. Part II surveys multidisciplinary thought on music to illustrate many of the ways music functions in society and in individuals. In particular, aesthetic theory is used to establish the powerful role of music as speech. This power of music is also witnessed in historical episodes of music censorship from Plato to Stalin. (23) With this background, Part III discusses music in terms of traditional First Amendment theories and doctrine as a way to concretely place music within First Amendment jurisprudence. Though theories of truth value, self-fulfillment, and democracy can explain protection for music in some respects, no single First Amendment theory fully explains protection of music as speech. Once the full import of music as speech is realized, Part IV discusses two cases with implications for music as speech: National Endowment for the Arts v. Finley (24) and Skyywalker Records, Inc. v. Navarro. (25) These cases demonstrate how music as speech both informs the government's role in music as well as bolsters judicial discussion of music in First Amendment theory.

   Music is everywhere. It pervades daily life, and it has accompanied major political events throughout history. With calls to establish a "culture czar" in the United States, (26) the unique function of music in society and First Amendment jurisprudence will be a crucial consideration in any governmental foray into the world of music. Preexisting free-speech theories may provide insight, but none fully encompass music's multifarious functions. (27) Even the doctrine of symbolic speech, (28) the most intuitive candidate for protection of music, does little to protect the full value of music as speech. Rather, music is a unique mode of expression that touches upon many different aspects of the First Amendment. As a protected mode of expression, music must be understood on its own terms. (29)

2. BETWEEN SOUND AND MIND

   How does music work? For the most part, it remains a mystery. Yet the importance of music in society is evidenced by its pervasiveness: "[t]here is no human culture known in modern times that did not, or does not, engage in recognizably musical activities." (30) Indeed, there is concrete evidence for the antiquity of music--it could be 250,000 years old. (31) Today, music imbues nearly every moment of life. We wake up to it, work out to it, and shop to it. It is in our homes, our cars, and, with the advent of MP3s and the iPod, we take it everywhere. This Section draws on work in philosophy, sociology, and psychology to illustrate the indispensable ways music functions in individuals and communities. With this background, theories of free speech can then be explored to fully accommodate music as speech.

   What is it about music that grabs our attention and makes it such a ubiquitous force in society? One theory is that music binds groups of people together, a useful attribute in the early days of human evolution. (32) Throughout history, music has principally been considered a tool for collective social purposes. (33) For example, it is "often ... connected with religious and ... primitive magical practices." (34) In contrast, only "very few cultures, and almost exclusively within the confines of the Western world, have appreciated music for its inherent aesthetic value." (35) Still, even a symphony concert can be seen as a ritual: "a celebration, undertaken not fully awares, of the shared mythology and values of a certain group within our deeply fragmented society." (36) By tapping into a common consciousness (or subconsciousness), music acts as an identifier and a marker. It identifies a group and marks an individual as a part of that group.

   Musical idioms quickly identify a culture. For instance, Western music is characterized by a focus on harmony, melody, and form, and, much like spoken language, it is an idiom learned from birth. Thus, the uninitiated ear will hear the pentatonic scales of Chinese folk music as "other." Understanding music is largely based on anticipation, and a person can only anticipate what is already known. (37) This same concept operates between music styles within a single culture. Jazz cannot be listened to as if it were country. Music is extremely effective in separating "us" from "them," and in creating a sense of solidarity and shared understanding--even if unconscious--among "us." Like language, these sensitivities appear to be learned and developed through exposure and function as cultural markers.

   At the same time, there are crucial distinctions between language and music. Both language and music can be viewed as sound imbued with meaning, but language holds obvious evolutionary import while some theorists describe music as mere surplusage, akin to cheesecake. (38) Accordingly, "[a] brain devoted to turning sound into meaning is tickled by an oversupply of tone, melody and rhythm. Singing is auditory masturbation to satisfy this craving. Playing musical instruments is auditory pornography." (39) Even if this theory has some truth, the pervasive presence and function of music in today's society cannot be ignored.

   Most commentators agree on one thing: music manipulates emotions. (40) While no one yet understands why or how music elicits emotional response, (41) aesthetic theory provides some insight into the ramifications of this phenomenon:

   Art changes the emotional content of man's consciousness so that he can react more subtly and deeply to the world. This penetration of inner reality, because it is achieved by men in association and has a complexity beyond the power of one man to achieve, also exposes the hearts of his fellow men and raises the whole communal feeling of society to a new plane of complexity. It makes possible new levels of conscious sympathy, understanding and affection between men.... (42) This passage illustrates how manipulation of emotion not only manufactures...