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Music has received 1st Amendment protection as expression since Ward v. Rock Against Racism. Music may be as expressive as speech. All art communicates ideas, whether or not it communicates them with words. And expression’s emotive quality also receives protection: “one man’s vulgarity is another man’s lyric.” Cohen v. CA. This is the reason why all art is protected, and under the Miller test any work with serious artistic value is not obscene. Music is thus more than expressive conduct, as in O’Brien; it is expression itself. Government would therefore deal with similar 1st Amendment issues when encouraging, mandating, discouraging, or forbidding music as it does with speech. But the context in which music is performed may affect its protected status to a greater degree even than speech. If government desires to encourage certain kinds of music, it may do so through the use of subsidies. NEA v. Finley establishes that when the government confers a benefit, such as art subsidies, there is no 1st Amendment bar to using whatever criteria it wishes in giving the subsidies. It could not grant them in a way inconsistent with equal protection, for example, by giving them only to Catholics, but the 1st Amendment provides no bar to the government promoting the speech, or music, it wants with its own funds. Cf. Rust v. Sullivan. Similarly, in public schools, government has considerable freedom in deciding what music to promote. Because schools are authoritarian institutions in which educators have significant interest in maintaining discipline and teaching civic values as well as general knowledge, the government is largely able to promote in classes the music it thinks is edifying, and to prohibit in school music that it believes will interfere with its educational message. Bethel, Kuhlmeier, Morse. Government would run into problems if it tried to compel a musician to perform. Any compelled expression is suspect, and subjected to strict scrutiny. Barnette. We must be able to
Page 2 maintain our silence. Beginning with incitement. But. Only if the entire regulatory scheme consists of advertisements is it unconstitutional compelled speech. Johanns. with the possible exceptions of defamation. Individual producers can be compelled to pay for generic advertisement for the product when part of a greater scheme. obscenity. If music is disagreeable to us. government may be able to require radio stations to play certain music. and not have to declare our position one way or another. music could be an incitement to unlawful action. and commercial speech. just as we cannot be forced to be moving billboards for the state of New Hampshire. but only punish its performer for the context in which it is played. In broadcast media as well. Forbes (a minor candidate is excluded from a public television debate). United Foods. The generic advertisement in Johanns was primarily comprised of music. Barnette would not have come out differently had the students refused to sing the “Star Spangled Banner” rather than recite the pledge of allegiance. Maynard. because they are a physically scarce resource. we cannot be forced by the government to sing it. This is dangerously close to suppression of ideas. The government could forbid various kinds of music entirely. Wooley v. Broadcast television stations were required to show opposing viewpoints if they editorialized. however. Glickman. . the government could not prohibit the music outright for its dangerous qualities. perhaps XM radio could obviate the problem through invention of a non-scarce medium. The trouble is that the government becomes an engine for allocation of official diversity. and that necessarily means that some musicians the government does not think worthy will be left out. Red Lion. As broadcast television invented around the problem with cable. But government could compel commercial music when it is part of a general regulatory scheme. because radio airwaves are also physically scarce. Government regulators might be able to regulate content in order to ensure diversity in radio as well.
It may discuss actual persons. Thus. if some music were played as part of an attempt to terrorize. Falwell. Music is probably outside the scope of defamation law. no convictions under this doctrine have been upheld. Lewis. It is uncertain if much remains of the fighting words doctrine at all after Rosenfeld. the music. nor the composer punished – only the act of incitement and the person who plays the music. but normally its assertions about them are not meant to be taken literally. Conceivably. . does not usually purport to assert facts. But the government would still have to prove that the defendant played the music in order to terrorize. But if the same music were recorded and played in a classroom for educational purposes. RAV. the music itself could not be prohibited. the music might be punishable under the Brandenburg test if it is intended to incite imminent unlawful action and was likely to do so. it would lie outside defamation law. Black. like the cartoon in Hustler was not. it must assert facts. if at a Klan rally. This is comparable to speech regulations. In order for speech to be defamatory or otherwise tortious. Thus. Since Chaplinsky. as expression. the government could punish it. If a piece of music truly purported to convey incorrect facts about a person. would receive the NY Times standard as long as the facts were about a public figure and a matter of public concern. Black. Texas v. Johnson (burning the flag cannot be outlawed as a prohibition on blasphemy). Music. however. Brandeis/Holmes in Whitney/Gitlow. like other art. Virginia v. Virginia v.Page 3 For example. But Justice Scalia intimates that such prosecutions might still be possible. a piece of music urged the Klansmen to terrorize. Eichman. RAV. it would neither be intended nor likely to provoke such imminent lawless action. Prohibition of music as fighting words would face similar obstacles. and Brown.
or racial animus is only one of several explanations of racial motivation. Mitchell (when racial motivations are bound up in conduct. A particularly rousing speaker cannot be silenced because he expresses bigotry or cannot be responded to rationally. sentence enhancements are permissible). RAV. Cf. and not also conduct. The government can prohibit conduct intended to terrorize or meant as a threat. the 11th Circuit accepted trial testimony about the literary value of a sexually explicit rap record. But such music is widely available. shameful. obscenity that demeans women). Music’s power to incite morbid interest in sex and. although the trial judge had ruled that music obscene. Indeed. In Luke Records v.Page 4 Hate speech as such is fully protected by the 1st Amendment. Black. music almost necessarily has some social value. By virtue of being art. again. Because music is normally expressive. Cf. Wisconsin v. The problem with prohibiting obscene music is that under the Miller test. and ruled that it was not obscene. and it is unlikely the government could do anything to prohibit it (as it does little to prohibit most obscenity). as all the theoreticians quoted in the question recognized. Virginia v. But again. lustful prurience has been widely recognized. that only speaks to its effectiveness in conveying the message. it was intended to convey a threat or incite violence. Hudnut (an obscenity statute cannot ban only pornography. Navarro. unless. it would be difficult to imagine a situation in which music expressing hate speech could be prohibited as conduct. Rarely would music be intended only as a “masturbatory aid. The message itself receives full protection. RAV. that is.” to quote . Music bears comparison to pornography in that it is a particularly powerful way of delivering a message. Allen Bloom dedicates a significant portion of his “Closing of the American Mind” to criticizing the Rolling Stones for their shameless sexualizing of youth through the rhythm of their music. obscenity must lack all serious social value. but mere expression of derision towards any group cannot be prohibited.
Renton (zoning of sex stores is permissible. In the lawyer advertising cases. and they leave open ample alternative modes of communication. Ohralik. And again. and is. and regulations are constitutional as long as they pass the Central Hudson test. sexually explicit music. Rock Against Racism. a musical ad for tobacco was targeted to children somehow. Johanns. Total medium bans sometimes are . Indecent. Pacifica. place. When music does not express ideas from any of the disfavored categories. things like volume control and requiring the use of certain equipment or technicians are permissible regulations. Sable. however. Music can be loud and disruptive. the fact that it has rhythm and other musical elements would give it some social value when taken as a whole. while obscene music could theoretically be prohibited. Ward v. the government may impose reasonable time. the attorneys would not have received any additional protection if they solicited clients with musical messages. they are narrowly tailored to advance a significant government interest. commercial speech may be compelled when it is part of a general regulatory scheme. it is unlikely that any music is obscene under Miller. and manner restrictions on its performance. Normally. Fox) by the prohibition.Page 5 Sunstein. for example. restricted over the broadcast media in order to prevent its coming into the homes of unwilling adults and the ears of children. cf. so reasonable restrictions on its performance can be imposed if they are content-neutral. Glickman. as would be “zoning” to the late hours of sexually explicit programming). could be. it could be banned as long as the substantial state interest in preventing youth smoking is accomplished directly (but not absolutely directly. Additionally. Ward. So. Commercial music would receive no more protection than ordinary commercial speech just because it is music. the 1st Amendment protects willing adults’ access to obscene auditory material over the telephone. Florida Bar. if. And even if it were. So.
it can still decide to exclude people whose message it disagrees with. They discuss political and other matters. Roberts. They are something of a secular church. which he is not. In the context of music. Struthers. As such. but normally they are not. CCNV (sleeping in the park across from the White House is expressive. The Fellows do not appear to engage in business networking. . Furthermore. For all practical purposes. the Fellows are an expressive association. like a particular word. because there would still be other ways to convey the message. Cf. The Fellowship has no 1st Amendment defense to the breach of contract and defamation actions. Roberts. Tornillo (a newspaper gets to decide its message. Question II. many expressive and religious organizations do so as well. CA. the Board screens its members. and provide counseling. But if it only banned certain kinds of loudspeakers to project the music. it would depend on how the total medium ban works. Martin v. If it bans a certain instrument. they get to decide what their message will be. Although the Fellows let in anyone regardless of religion or morals. Dale. If Gantry were an at-will employee. cf.Page 6 constitutional. even if an expressive association has no specific message. Taxpayers for Vincent. NY State Clubs. might be necessary to express the message. that particular instrument. Hurley. his discharge would have been permissible under the 1st Amendment. Rotary (associations that look commercial enough can be forced not to discriminate). but having the tents there without sleeping expresses the same message). for example. that would be impermissible. To begin. that would be constitutional. Nor will it be able to defend the IRS’s revocation of 501(c)(3) status on 1st Amendment grounds. the Fellows are an expressive association. As in Cohen v. Taxpayers for Vincent. Although they charge dues. and cannot be required to include a message with which it disagrees).
Tornillo (the newspaper has the right to determine its message. to which there is no 1st Amendment exception. whether they are a religious organization. Although they were founded by dissident Quakers who believed in a Supreme Being. As stated above. But those were definitions of religion in statutory. many organizations (such as Harvard) were founded by religious individuals but no longer qualify as religious associations. he could only be terminated for cause. not constitutional. . The Leader is essentially a figurehead. It is doubtful. as were the convictions of the conscientious objectors in Seeger. cf. Cf. and so could fire a reporter who publishes something it disagrees with). Gantry’s dismissal is governed by the law of contracts. Both the majority of the congregation and the Board (who are in charge. however. The Fellowship thus has no religious features for constitutional purposes. the law of contracts governs his dismissal. Regardless of whether they are a religious organization. other than agreement that the Iraq war is immoral. If Gantry did not engage in sexual relations with Fellows. while the Board has substantial control over the Fellowship. under Gantry’s contract. cases. Welsh.Page 7 Furthermore. including the authority to decide what behavior undermines the fellowship. if the Fellows are a quasi-religious organization. They appear to have no rituals or common set of beliefs. The Board has the right to promote its message by not having its “public face” promote the contrary message. Arcara. a law of general applicability that is unrelated to the suppression of expression. there was no cause for firing him. Aguillard (creationism only “religious” because of legislative history indicating a religious motive for including it in the curriculum). as they get to select the leader and screen members) oppose the Iraq War. Perhaps this sense of moral obligation to oppose the war is like religion. and his termination was therefore a breach of contract. the content of their message does not appear to depend on whether they are a hierarchical or congregational organization. But.
and not a penalty on political . because the statements were about a private figure on a matter of private concern. False statements about him do not receive the NY Times standard. the law of contracts provides neutral principles against which to decide whether the contract has been performed. There is no danger of an establishment clause violation by prying into the intricacies of Fellowship doctrine when all they must do is decide whether or not there was cause to fire Gantry. Walz (general tax exemption applied to churches and other charities is permissible). It is unlike the tax exemption available for all veterans that would be denied if the veteran refused to take an unrelated loyalty oath. Dun & Bradstreet. Presbyterian. it is a subsidy for charitable organizations that is conditioned on not lobbying. That being the case. Smith. they must make him whole. the Fellows also have no 1st Amendment defense. even if the Fellows are a religious organization. Granting tax exemptions to all donations to an organization is a substantial benefit to the organization. It “has the effect of a cash grant to the organization. I assume that Gantry is a private figure. Jones. truth is always a defense to defamation. cf. Free exercise would also not protect the Board if their religion somehow required them to fire him. Hialeah. As to the IRS denying the Fellowship 501(c)(3) status. even if his views did not comport with the Fellowship’s. Speiser. I assume Gantry’s employment contract was a standard. but the Fellows will have the burden of proving that the statements were true. and there may be punitive damages without a showing of malice. Rather.Page 8 and if the Fellows fired Gantry for an impermissible reason under the contract. because the law of contracts does not target religion. secular contract. The Fellows will not get any special 1st Amendment protection in the defamation action either. In fact. His sexual relationships are therefore not a matter of public concern.” Taxation With Representation. Of course. no fault is required at all.
because the government must make even viewpoint-specific decisions about what programs it will promote. Velasquez and LWV are inapposite. whose purposes were wholly economic. The Supreme court has already ruled this very regulation reasonable. as discussed above. Gantry’s job requires at least some degree of adherence to the organization’s principles. Unlike belonging to the union in Abood. assuming the Fellows receive soft money contributions. Gantry might have a claim against the Fellows for compelled association. because. however. Sullivan. Finley. In this way. the government can prevent 501(c)(3) organizations from engaging in political advocacy. Hurley. TWR. not a commercial one. TWR. This is not a case of the adversary determining the rules of the game. 501(c)(3) status is a non-public forum. the Fellows could always split their organization. as it does not prohibit only lobbying for Republicans. NAACP v. Greenburgh. or of a very small subsidy that dictates content to an organization that cannot split up its editorializing and non-editorializing components. and create a non-501(c)(3) that lobbies. This regulation is content-specific. It is noteworthy that. which it gets to decide for itself. NEA v. Perry. The government may determine what activities it will subsidize. After all. Content-specific determinations of subsidy eligibility are subject only to rational basis review. the government can implement reasonable content-specific regulations as long as they are viewpoint-neutral. but it is viewpoint-neutral. As with mailboxes or solicitations for federal charities. a content-specific regulation. This is unlikely to succeed. Rust v. the Fellows are an expressive association. Dale. Thus. Abood.Page 9 speech. inasmuch as he was required by his job to belong to an association that has values with which he disagrees. they also violated the constitutional portion of BCRA by using its funds to pay for express advocacy ads within a short time of the . as it prohibits politicking. Cornelius.
Page 10 election. law. First. Potentially problematic is the judge’s ruling that Gantry does not qualify as a member of the clergy. not religious. assuming that qualification as a member of the clergy is a matter of secular. It therefore does not require excessive entanglement with religion in violation of the establishment clause. Branzburg. Nor do the compelled disclosures ordered by the judge violate the right to silence. But this ruling also is unlikely to be challenged successfully. Lemon. Additionally. Jones. the Fellows do not appear to be a religious organization. the determination of privilege depends on neutral principles. . Presbyterian. as argued above. The judge’s rulings may be subject to 1st Amendment scrutiny if Gantry wishes to challenge them. Wisconsin Right to Life. The Fellows are thus susceptible to suit for that violation as well.
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