Publication Date
2-1-2015
Document Type
Article
Organizational Units
Sturm College of Law
Keywords
Instrumental music, First Amendment, free speech, Supreme Court, censorship
Abstract
This Article critically examines what would seem to be, but is not, an easy free speech question: whether instrumental music falls within the scope of the First Amendment. The Supreme Court has long recognized that musical expression is “speech,” but has never analyzed why this is the case. Similarly, scholarly literature is surprisingly bereft of any comprehensive examination of whether there are sound theoretical or doctrinal foundations for treating purely instrumental music as a form of constitutionally protected expression. This Article engages this question comprehensively, and argues that there are two strong claims for the coverage of instrumental music under the First Amendment. First, instrumental music can be understood as speech because of its central role in expressing cultural, religious, nationalist, and other social values that might otherwise be at risk of government control and orthodoxy. Second, music serves a unique communicative function as a facilitator of emotional expression, experience, and autonomy.
Publication Statement
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Originally published as Alan K. Chen, Instrumental Music and the First Amendment, 66 Hastings L.J. 381 (2015)
Recommended Citation
Alan K. Chen, Instrumental Music and the First Amendment, 66 Hastings L.J. 381 (2015).