Music as Speech: A First Amendment Category Unto Itself

"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) I. 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. …