Abstract

http://ssrn.com/abstract=1279628
 


 



Censoring Samba: An Aesthetic Justification for the Protection of Speech


Jack L. Sammons


Mercer University School of Law

September 1, 2008

Stetson Law Review, Vol. 37, No. 3, 2008

Abstract:     
Responding to well known challenges to any attempt to justify any principle for the protection of speech, this Article argues that principled protection of speech is justified because speech, all speech, has as one of its elements a participation in the same self-justifying activity that the aesthetic always is. To demonstrate what he means by "the aesthetic", to show the aesthetic aspect of speech, and to explain why this aspect justifies speech's protection, the Author takes his readers into the "polity of samba," an aesthetic cultural community, in Brazil in the sixties, as it defends its samba speech against the censorship of the "polity of common sense." In doing so, he focuses on the role played by the famous Brazilian composer, Chico Buarque, who, he argues, was the primary voice of the polity of samba. (Links to Buarque's most important musical compositions from this time are provided in footnotes.) From this Brazilian samba experience, and from Buarque, the Author argues, we can learn that expressive speech is always grounded in the ongoing possibility of the aesthetic and is always to be found at the boundaries between the polities in which we live our lives. It is this being at the boundary, and thus capturing our fullness, that makes speech special, that is, distinguishable from our other activities, and justifies the special protection that we offer to it. Showing how surprisingly similar conceptions of speech can be found in the early opinions of Judge Hand and Justice Holmes, the Article goes on to explain how such a justification for speech works in the law. It does so, the Author argues, in a manner similar to the way moral intuitions work in moral decision-making: as non-inferentially justified principles, grounded only in our experience, that operate as prima facie, defeasible, thumbs on the scales in judicial decision-making about speech. The Article then concludes with the Author's appeal to law teachers to nurture a non-instrumental, non-political, samba conception of law, one not reducible to force, as against what he sees as the instrumental and political conception of law lying behind the claims of those who reject any principled protection of speech.

Number of Pages in PDF File: 43

Keywords: free speech, aesthetic, samba, Buarque, Fish, moral intuition, self-justifying activities, play, Brazil, common sense, censorship, music, Hauerwas, Holmes, Hand, Audi, Masses, dance

Accepted Paper Series


Download This Paper

Date posted: October 7, 2008  

Suggested Citation

Sammons, Jack L., Censoring Samba: An Aesthetic Justification for the Protection of Speech (September 1, 2008). Stetson Law Review, Vol. 37, No. 3, 2008. Available at SSRN: http://ssrn.com/abstract=1279628

Contact Information

Jack Lee Sammons (Contact Author)
Mercer University School of Law ( email )
Walter F. George School of Law
1021 Georgia Ave.
Macon, GA 31207-0001
United States
478-301-2323 (Phone)
478-301-2259 (Fax)
Feedback to SSRN


Paper statistics
Abstract Views: 561
Downloads: 59
Download Rank: 215,621

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo2 in 0.250 seconds