Free Speech Beyond Words: The Surprising Reach of the First Amendment

Lay readers might not typically consider Jackson Pollock’s paintings, Arnold Schönberg’s music, and Lewis Carroll’s poem “Jabberwocky” to be protected expressions under the First Amendment, but law professors Tushnet, Chen, and Blocher effectively explain why they are considered free speech. They open with a significant paradox: as “nonrepresentational art, instrumental music, and nonsense do not employ language in any traditional sense,” and may not even express “articulable ideas,” how can they be considered speech? Their logical, if not intuitive, answer—“Sometimes things are worth expressing even when they cannot be put into words”—frames their exploration of First Amendment theory and the balancing tests that the Supreme Court has applied in the past. The authors ultimately conclude that both case-law and theoretical approaches to free speech issues offer limited general guidance, and that a case-by-case analysis of future controversies is the best one can hope for. This is a valuable introduction to a field that will become only more significant with the development of new media, such as virtual reality and digital mapping, that could merit First Amendment protection. (Feb.)