Hastings Law Journal


Alan K. Chen


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. In examining these claims, the Article first surveys existing judicial and scholarly treatments of music as speech to illustrate how our understanding of the expressive value of instrumental music has been undertheorized. It then briefly catalogues historical and contemporary instances of instrumental music censorship by governments and other powerful institutions both within the United States and in other nations. First Amendment theory does not offer an obvious explanation for why instrumental music should be protected. Thus, the Article next considers the three dominant theoretical justifications for protection of expression—promotion of democratic self-governance; facilitation of the search for truth; and protection of autonomy through self-realization—and explores the possibilities for and limits of employing any of these three theories to justify protection of instrumental music. To truly understand how these speech theories might apply, however, one must first comprehend the nature of instrumental musical expression. Accordingly, this Article next discusses exactly what it is that instrumental music expresses and how it does so, and examines how those conceptualizations fit within the frameworks of the three dominant speech theories. This Part concludes with an elaboration of the claim that music is like speech because of its unique power to convey cultural and other social values and promote emotional expression and experience in its composers, performers, and listeners. Music, then, falls within both the truth-seeking and self-realization justifications for the First Amendment. In contrast, theoretical explanations for free speech grounded in democracy do not map well onto non-lyrical musical expression. Finally, this Article argues that a better understanding of the relationship between instrumental music and the First Amendment may illuminate free speech theory more broadly. First, it moves the recent discourse on First Amendment “coverage” forward by examining a context that requires consideration of nonrepresentational expression in its purest form. Second, clarification about the valid justifications for coverage of instrumental music has important ramifications for how we think about the regulation of other artistic expression as well as other types of nonverbal expression, such as non-obscene pornography and subliminal advertising.

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