THE FREEDOM OF NON-SPEECH: FREE SPEECH BEYOND WORDS.

• Author: Armijo, Enrique
• Position: Book review

FREE SPEECH BEYOND WORDS. Mark V. Tushnet, (1) Alan K. Chen, (2) and Joseph Blocher. (3) NYU Press. 2017. Pp. vii + 260. $28.00 (Cloth).

INTRODUCTION

How does one achieve eternal bliss? By saying dada. How does one become famous? By saying dada .... How can one get rid of everything that smacks of journalism, worms, everything nice and right, blinkered, moralistic, europeanised, enervated? By saying dada.... I don't want words that other people have invented. All the words are other people's inventions. 1 want my own stuff, my own rhythm, and vowels and consonants too, matching the rhythm and all my own. (5) On the evening of August 29, 1952, at Maverick Concert Hall, an open-air theater deep in the Catskill Mountains' forest preserve on the outskirts of Woodstock, New York, the virtuoso pianist David Tudor strode out onstage before an unsure audience, sat at a piano, set a stopwatch, closed the keyboard lid, and for 30 seconds, did nothing. He then opened the lid, reclosed it, reset the watch, and sat silently again for an additional 2 minutes and 23 seconds. He opened and closed the lid, again sat silently at the piano keys for another timed minute and 40 seconds, stood up, and walked offstage. (6)

Though Tudor was careful to make no audible sounds during the performance, the sheet music at his piano was not blank. The composer's notation read "Tacet. (7) For any instrument or instruments." The score noted three movements and their lengths, demarcated in the performance by Tudor's opening and closing of the piano's keyboard lid, and, in a subsequent recreation of the score, a series of vertical lines intended to indicate the passage of time. (8)

Composer John Cage, the author of that score, would say that the piece, then tentatively called Four Movements, later named 4'33" after its total length, was inspired by artist Robert Rauschenberg's White Paintings, which Cage had encountered at a Rauschenberg solo show the year before Tudor's performance. (9) The White Paintings were five paneled works "painted on canvas in a smooth, unmodulated white." (10) Cage interpreted the images not as a means to project the artist's own expression, but rather as "backdrops against which the flux of the world might stand out." (11) Cage would describe the White Paintings as "mirrors of the air," and "airports for the lights, shadows, and particles" of the rooms in which the paintings were displayed. (12) Their lack of form focused the viewer's attention on naturally occurring images, such as the changes in light and shadow in the surrounding space. The message Rauschenberg sought to communicate could only be expressed by stripping away the paintings' content. When he began work on a new set of White Paintings, Rauschenberg instructed his assistant to "[p]aint them so they look like they haven't been painted." (13)

With 4'33", Cage sought to supply the same aesthetic experience through musical composition. The work's use of silence, when combined with the socially self-imposed silence of the concert hall, (14) was intended to frame the other sounds that occurred in that space during that time, both natural and man-made. By composing a soundless score, Cage sought to teach the audience to listen for those sounds that are all around them that modern society had trained them to forget were there. Writing about that first 1952 performance, Cage said of the audience that

[w]hat they thought was silence, because they didn't know how to listen, was full of accidental sounds. You could hear the wind stirring outside during the first movement. During the second, raindrops began pattering on the roof, and during the third the people themselves made all kinds of interesting sounds as they talked or walked out. (15) Despite--indeed because of--its lack of compositional sound, 4'33" thus serves, as critic and composer James Pritchett writes, as "a tribute to the experience of silence, a reminder of its existence and its importance for all of us." (16) It is only through silence, Cage believed, that we can notice the "permanent presence of the sounds all around us," and can come to learn that those sounds are "worthy of attention." (17) In today's wireless, cacophonous, and ever-connected world, this is a reminder that we need more than ever.

The story of 4'33'"s inspiration, composition, first performance, and evolving meaning is not merely a story about a work of silence. Rather, it is a story about a work whose author decided that the work be silent, and a story of the message that the work intended to communicate--a message that could only be expressed by not communicating, in particular the use of silence to demonstrate that, as Cage said, "there's no such thing as silence." (18) It is a story of expressive choice, in particular Cage's decision to reject locution so as to convey his intended meaning. (19) Which means that for First Amendment scholars, it presents a test case.

In their illuminating and timely new book, Free Speech Beyond Words, Mark Tushnet, Alan Chen, and Joseph Blocher ask whether the First Amendment applies to expression that, like 4'33", but also like Lewis Carroll's nonsense poem Jabberwocky or Jackson Pollock's splatter painting, does not use words or conventionally representational imagery. It is a question that, as the authors show, the United States Supreme Court has long assumed has an affirmative answer. Even though such works do not use words to express ideas or otherwise convey meaning, and even though the Court is asking whether such works are within "the freedom of speech," the Court has unanimously declared that they are "unquestionably shielded" by the Speech Clause (p. 2). (20) The question that Tushnet, Chen, and Blocher seek to answer is why that is so.

Why ask why such works are "shielded" by the First Amendment, then, especially since the Court has long treated the answer as a given? According to the authors, the Court runs doctrinal risks when it glides past what Frederick Schauer calls the "coverage" First Amendment question in its rush to reach the "protection" question. (21) Tushnet et al. begin with the unassailable premise that communication involves much more than the use of words to convey meaning, and thus "speech" for First Amendment purposes must entail more than that as well (p. 1). But that premise cannot alone drive the Court's conclusion that wordless communication is covered by the Amendment.

Setting the boundaries of the First Amendment is a project of determining coverage, not protection, and we need independent justifications for finding coverage exists in order for free speech law to cohere. Additionally, ignoring coverage is doubly dangerous, the authors argue, precisely because the tools the Court uses in deciding the protection question have become so settled in favor of protecting speech, while the tools for determining coverage questions are, in many cases and to borrow John Cage's term, tacet. (22) First Amendment protection rules are so outcome-determinative that the answer to the protection question in cases like U.S. v. Stevens, (23) Sorrell v. IMS Health (24) and Brown v. Entertainment Merchants' Association (25) is doing boundary-setting work which should properly be addressed at the preliminary point of deciding whether First Amendment coverage exists or not (p. 3).

This approach, in the view of the authors, is exactly backwards. The question of what the First Amendment covers is a more consequential question than whether the First Amendment protects a particular speaker or group of speakers in a particular case. (26) Yet the Court continually bogs down in the application of First Amendment rules where the outcome with respect to those rules is in little doubt, and with almost no rigorous predicate analysis of whether the First Amendment applies in the first instance.

A look at the Court's recent work bears this reading out. Pages are a rough proxy at best for the depth of legal analysis within those pages. (27) But to demonstrate the authors' premise, below is a chart showing the three aforementioned First Amendment cases, the length of the slip opinions in those cases, and the approximate amount of discussion, as measured by pages in those opinions, that the Court's members spend analyzing the coverage question with respect to the claim at issue as opposed to the protection question:

Putting aside Justice Thomas' dissent in Brown--his commitment to original public meaning-based interpretation causes Thomas to sometimes be an outlier on the current Court with respect to treatment of First Amendment coverage questions (31)--the contrast within this admittedly small sample size is stark. The Court spent more than triple the amount of time in its opinions' pages discussing the extent of the First Amendment's protection as it did discussing whether the First Amendment applied to the relevant communicative acts at all. This is a bizarre way to decide cases. (32)

First of all, it carves out the First Amendment from the hardiest canon of construction in all of public law: the doctrine of constitutional avoidance. (33) Of course, the more conventional version of constitutional avoidance instructs that courts should strive to interpret statutes so as to avoid raising constitutional questions. But an analogous form of constitutional avoidance occurs when, as A. E. Dick Howard notes, the Court "pass[es] up a more difficult constitutional question in favor of another which, albeit constitutional, was hardly controversial." (34) As the authors write, "[t]he whole point of treating the First Amendment as having boundaries is to avoid in-depth analysis of cases involving uncovered conduct" (p. 4, emphasis in original). If the Court were to actually engage the question of First Amendment coverage, it could dispense with protection questions when it had before it an allegedly communicative act that was not sufficiently expressive to fall within the Amendment. But...