
Mark Tushnet has been teaching constitutional law for several decades, specializing over the past decade or so on the First Amendment and comparative constitutional law. He was a law clerk to Justice Thurgood Marshall, and was an important contributor to the development of “critical legal studies,” a skeptical approach to common ideas about what law is and does.
We think that the book’s cover is a terrific “provocation” for thinking about the problem. We hope that readers (viewers?) will ask themselves, “Why is this covered by the First Amendment?” Chapter Two, on abstract art, has a bunch of illustrations, and their point, mostly, is to provoke the same question. We wanted to do something similar for the chapter on instrumental music, but it’s a physical book, not an electronic one. So the best we could do it direct readers to sites – mostly on YouTube – where they can listen to the music we talk about. Here are a couple of examples: Tuvan throat singing and a performance by the Dave Brubeck Quartet. And, in the chapter on nonsense, we remind readers of the “lyrics” to “ I Am the Walrus,” “Who Put the Bomp,” and “Louie Louie,” which we suggest are, or are nearly, gibberish.The point of all this is to motivate the book’s larger concern: Of course all this stuff is protected by the First Amendment, but why?First of all, I want to recognize here my two co-authors. Even though the responses in this interview are mine only, I believe to speak on their behalf as well. Joseph Blocher, who is a professor of constitutional law at Duke, once clerked for Judge Guido Calabresi, one of the nation’s most creative legal thinkers. Alan Chen, who is a professor of constitutional law at the University of Denver, has eminently represented civil rights plaintiffs in California, Idaho and Utah.Second, we want to get people thinking about questions that might never have occurred to them. Or, more strongly, we want to get people thinking about the “obvious” answer they would give to the question of why Jackson Pollock’s paintings, Arnold Schoenberg’s music, and “Jabberwocky” are covered by the First Amendment. Once they do, maybe they’ll think about other topics, like the coverage of dance, sports, gardening, and cuisine. But, frankly, I think we’d all be completely satisfied if readers found that our arguments unsettled their intuitive answers, at least for a while.

Mark V. Tushnet, Alan K. Chen, and Joseph Blocher Free Speech Beyond Words: The Surprising Reach of the First Amendment NYU Press272 pages, 6 x 9 inches ISBN 978 1479880287
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