As visitors to our Facebook page will be aware, Johnathan and I recently recorded our first radio ads for the firm. They will be airing on 96.9 The Eagle and are also available on Soundcloud here. Each ad closes with a reminder for listeners to exercise their 5th Amendment right to remain silent and their 1st Amendment right to rock. This raises the question, what exactly is the 1st Amendment right to rock? In writing that line, we were chiefly thinking of a US Supreme Court case, Ward v. Rock Against Racism (RAR), concerning rock concerts in New York City’s Central Park.
In RAR, Justice Kennedy upheld a New York City regulation requiring performers at a Central Park bandshell to utilize sound technicians and amplification equipment chosen by the city. The Court found that this regulation was a permissible time, place and manner regulation because it was narrowly tailored to achieve a significant governmental interest and provided ample alternative channels of communication. But all of this fancy legal phraseology glosses over what Justice Kennedy recognizes at the beginning of his analysis: that rock music, like any expressive conduct, is protected by the 1st Amendment.
Justice Kennedy notes that “music is one of the oldest forms of human expression” and that democracies and dictatorships alike have recognized music’s “capacity to appeal to the intellect and to the emotions, and have censored musical compositions to serve the needs of the state.” Because of this, “Music, as a form of expression and communication, is protected under the First Amendment.” This just makes sense. The 1st Amendment exists chiefly to prohibit just the type of censorship that Justice Kennedy notes has been targeted at music.
From N.W.A to Rage Against the Machine it is undeniable that rock music often carries a political message. As the Supreme Court has recognized many times, political speech is at the core of what the 1st Amendment protects. And what is more political than the forceful use of “fuck” directed at authority figures, memorably expressed here and here. However, as RAR makes clear, the 1st Amendment right to rock is not unlimited. Reasonable time, place and manner restrictions will likely be upheld, meaning that a noise ordinance violation isn’t going to be struck down on a 1st Amendment basis. You have a 5th Amendment right to be quiet and a 1st Amendment right to get loud but the latter is bounded by your neighbor’s right to sleep in peace. Defending and exercising your constitutional rights is as patriotic as defending those rights on a battlefield. In the words of AC/DC, “for those about to rock, we salute you.”