Why the law needs music: revisiting NAACP v. Button through the songs of Bob Dylan.

• Author: Knake, Renee Newman
• Position: Bob Dylan and the Law

Introduction I. NAA CP v. Button II. On Music History and the Law III. Revisiting NAA CP v. Button Through the Songs of Bob Dylan, or Why the Law Needs Music History A. Music's Influence in Advancing Law: Blowin 'in the Wind B. Critiquing and Redeeming the Law: Only a Pawn in Their Game and The Lonesome Death of Hattie Carroll C. On the Importance of Exercising First Amendment Rights: Talkin' John Birch Paranoid Blues Conclusion INTRODUCTION

The law needs music, (1) a truth revealed by revisiting the United States Supreme Court's opinion in NAACP v. Button (2) through the songs of Bob Dylan and the play Music History. (3) The Court decided Button in 1963, (4) just a few months before the debut of Dylan's acclaimed album, The Freewheelin' Bob Dylan. (5) In Button, the Court held that the First Amendment protected the National Association for the Advancement of Colored People's ("NAACP") legal assistance to individuals for the enforcement of constitutional and civil rights. The decision was a victory for the NAACP, yet success in the courtroom did not translate entirely to success on the ground. Indeed, in the same year, NAACP Mississippi Field Secretary Medgar Evers was assassinated, (6) and the Birmingham Sixteenth Street Baptist Church was bombed. (7) These events serve as reminders of law's inadequacies, in that the constitutional protection of legal services in Button did little to stop the needless loss of life and violence that was characteristic of racial desegregation efforts. Not only did tragedy persist, but the NAACP's long-term vision for racial equality has never been completely realized. Playwright Sandra Seaton focuses on the law's inadequacies in her drama Music History, also set in the turbulence of 1963. Her characters endure the law's failings firsthand when a University of Illinois student, Walter, the beloved of Etta, is killed during his work on the voter rights campaign in Mississippi.

Music of the 1960s captured the struggle inherent in attempts to achieve equality when the law proved impotent, particularly as evidenced by Bob Dylan's work in 1963. This Essay, written for the Fordham University School of Law Bob Dylan and the Law Symposium, offers three connections between the law and music using the work of Dylan as an illustration. First, Dylan's music criticizes the existing cultural and legal regime in a manner that empowers social change in the wake of the law's failure (though, admittedly, Dylan may not have intended such a result). Second, while both the legal opinion and the songs memorialized the history of the civil rights era, the music is unique in its continued influence on modern culture. Third, Button and Dylan remind us about the importance of exercising our free speech rights, whether the speech involves offering legal assistance to minorities shut out from the political process at the ballot box, or singing a song silenced by record and television network executives.

In short, Dylan shows us why the law needs music.

This Essay proceeds in three parts. Part I opens with a summary of the Court's decision in NAACP v. Button, focusing particularly on the expanded understanding of First Amendment rights related to access to the law that flow from this legal opinion. Part II explains the inspiration for this Essay, Seaton's play Music History, which reveals the influence of music on law and culture during the civil rights movement. Part III examines the intersections between Music History, the Button case, and Dylan's songs of 1963 to demonstrate the importance of music to the law.

1. NAACP v. BUTTON

   NAA CP v. Button, a seminal case in the civil rights movement, established that the NAACP's assistance to individuals in the enforcement of constitutional and civil rights is protected by the First Amendment. (8) The case was one of many brought by a NAACP lawyer, Robert Carter, in an effort to end segregation. (9) The NAACP challenged a Virginia statute that banned the "improper solicitation of any legal or professional business," which was understood to forbid organizations such as the NAACP from soliciting prospective clients. (10) The NAACP was in the practice of meeting with parents of students discriminated against by Virginia public schools and supplying the parents with forms to request the NAACP's assistance in litigating their claims. (11) Virginia's highest court held that the NAACP was in violation of the state law. (12)

   On appeal to the Supreme Court, the decision was reversed. (13) In a 6-3 opinion authored by Justice Brennan, the Court held that the activities of the NAACP staff and lawyers are modes of expression and association protected by the First Amendment. (14) Further, the Court observed that in the context of the NAACP's objectives, litigation is a "form of political expression" because it may be the only mechanism for a minority person, excluded from the ballot box and the legislative process, to express grievances and enforce rights. (15)

2. ON MUSIC HISTORY AND THE LAW

   Before exploring the connections between Dylan's music and the Supreme Court's decision in Button, let me say a few words about the inspiration for this Essay. My inquiry into music's intersection with the law was sparked by the play Music History, created by Sandra Seaton, a playwright and librettist, who authored the script during her year as a writer-in-residence at the Michigan State University College of Law. (16) Seaton's drama focuses on the role of music in the lives of African-American characters who were active in the civil rights movement during 1963. One of the main characters, Walter, has just returned to the University of Illinois campus after working with the Student Non-Violent Coordinating Committee ("SNCC") (17) on a voter registration campaign in Mississippi. He is preparing to go back despite protests from his girlfriend, Etta. The two endeavor to reconcile "social pressures and racial segregation as they come to terms with themselves and each other in this coming-of-age drama that connects the personal and the political, the desire for personal fulfillment and a commitment to social change." (18)

   Music becomes a central force throughout the play, both in cultivating the relationship between Walter and Etta and their comprehension of the world around them, and also in facilitating the audience's understanding of the ways in which the law can fail. These ideas are poignantly conveyed in a scene where Walter is preparing to say goodbye to Etta, heading back to Mississippi to continue work on the SNCC voter registration campaign. Walter is engaged in a heated conversation with Etta:

   Walter: You think this is easy, Etta. You know I don't want to go. I don't want to leave you. Not now.

   Etta: But you have to play by the rules, all your great rules.

   Walter: Look, Etta, I don't make the rules. They're not mine to break. Even if I could, like some kind of king on a throne, it just wouldn't be right.

   Etta: ... Leave me here. Go off and fight your great crusade. Go on. Keep running off copies of the Mississippi constitution. Who's gonna read it anyway? You and ... oh yeh. Larry. That's right.

   Nobody else. Except, Larry, wait a minute, that's right. Larry can't see. (19)

   The audience knows, from an exchange between Walter and Etta earlier in the scene, that Larry was blinded in a childhood accident. (20)

   The audience realizes, as does Etta, that the only one who will read the law cannot see. At this moment in the play Etta, perhaps unwittingly, divulges one of the law's haunting realities: at times, even those who read the law cannot see.

   This scene from Music History exposes how the law may exist on the books, and the law may be read, but this is futile if the law is not seen--that is, if the law is not applied and enforced. The NAA CP v. Button decision offers another example of one who reads the law but cannot see. For example, consider Justice Brennan, author of the majority opinion in Button. (21) He repeatedly sided with the rights of minorities and the oppressed in his legal opinions. (22) And yet he refused to hire female clerks to work in his chambers. (23) In the 1960s, he said he might have to resign if a woman became a Supreme Court Justice. (24) He did not hire a female clerk until 1974, and only then because of threats that the Court would be sued for hiring discrimination. (25) Justice Brennan could read the law, yet in his own chambers, as Etta puts it, he could not see. Or consider the University of Mississippi Law School, where NAACP leader Medgar Evers was denied admittance because of his race. Here was an institution devoted to reading the law and yet it, too, could not see.

   Seaton's drama sits at a distinctive intersection of history, law, music, and fiction. I happened to read the script for the first time while also writing an article about NAA CP v. Button. (26) I was immediately struck by the intersections between the play and the legal opinion. As I read her play, I was reminded of music's role in history, and I wondered about its influence on the law.

   Next, I began researching the music written and performed in 1963, finding none more prominent than Bob Dylan's work. (27) Thinking about the songs that Bob Dylan wrote and performed during that year caused me to reexamine the Button opinion in several ways. His music and this legal decision intersect not only in historical time, but also in their pursuit of justice--whether Dylan intended it or not. He famously disclaimed any motivations as a protestor or reformer, (28) though his music certainly inspired protest and reform. Indeed, Seaton's Walter might very well have attended the July 6, 1963, SNCC voter rights rally in Greenwood, Mississippi, where Bob Dylan performed Only a Pawn in Their Game. (29) Walter also likely would have greatly appreciated the consequences of the Court's decision in NAA CP v. Button.

3. REVISITING NAA CP v. BUTTON THROUGH THE SONGS OF BOB DYLAN, OR WHY THE LAW...