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

Tushnet (William Nelson Cromwell Professor of Law, Harvard Univ. Law Sch.; Why the Constitution Matters), Alan K. Chen (William M. Beaney Memorial Research Chair, Univ. of Denver Sturm Coll. of Law), and Joseph Blocher (law, Duke Univ. Sch. of Law) here collaborate to explore the unusual applications of the First Amendment. Throughout, the authors examine the protections of free speech and the nature of speech itself, using art and nonsense speech as examples. The first chapter, written by Chen, draws on the work of linguistic and legal philosophers in arguing that instrumental compositions are protected by the First Amendment because they represent ideas and can trigger protest actions. The Supreme Court case of Morse v. Frederick illustrates the concept of nonsense speech—the decision upheld the suspension of a high school student who displayed a banner reading "Bong Hits 4 Jesus" at an off-campus school event. The student argued it was a joke, but the court ruled schools can restrict speech promoting illegal drug use.