Schenker inquiry faces First Amendment charge

Schenker inquiry faces First Amendment charge


norman lebrecht

August 07, 2020

The Foundation for Individual Rights in Education has written to the president of the University of North Texas, warning him that his inquiry into the Schenker furore violates the First Amendment of the US constitution. This may end up in court.

The First Amendment Bars UNT from Penalizing Scholarly Writing Others Find
While the content of JSS’s series of responses to Ewell’s SMT address may be deeply offensive
to some readers, it does not fall into any exception to the expressive rights shielded by the
First Amendment and academic freedom. It is well-established that the First Amendment
does not make a categorical exception for expression that some may find hateful, and equally
well-established that it constrains public universities in penalizing students for exercising
their right to free expression and faculty members for exercising their right to academic
A. UNT is Bound by the First Amendment’s Protection of Academic Freedom
It has long been settled law that the First Amendment is binding on public colleges like UNT.
Healy v. James, 408 U.S. 169, 180 (1972) (“[T]he precedents of this Court leave no room for the
view that, because of the acknowledged need for order, First Amendment protections should
apply with less force on college campuses than in the community at large. Quite to the
contrary, ‘the vigilant protection of constitutional freedoms is nowhere more vital than in the
community of American schools.’”) (internal citation omitted); see also DeJohn v. Temple
Univ., 537 F.3d 301, 314 (3d Cir. 2008) (on public campuses, “free speech is of critical
importance because it is the lifeblood of academic freedom”).
The Supreme Court of the United States has made clear that academic freedom is a “special
concern of the First Amendment,” explaining that “[o]ur nation is deeply committed to
safeguarding academic freedom, which is of transcendent value to all of us and not merely to
the teachers concerned.”



  • PaulD says:

    There is another Supreme Court case, involving musicians, that also may come into play here. The Asian-American rock band The Slants sought to trademark its name. The U.S. Patent and Trademark Office refused to do so, citing provisions of U.S. trademark law which prohibited the registration of trademarks that disparaged persons, institutions and beliefs.

    In 2017, the Supreme Court unanimously held that the provisions of the trademark law used by the PTO to deny the registration were unconstitutional as they were viewpoint discriminatory.

  • caranome says:

    Great! I wish some patriotic American billionaires would fund a Gates-like foundation to lead a counter revolution against the insidious brainwashing & erosion of the body politic n culture from the Destructive Left for the past 60 years. Don’t understand how the vast majority just sits there taking it day in n out. Got to wake up n subdue/defeat these left wing nutjobs.

  • The Foundation for Individual Rights in Education (FIRE) is a major proponent of the so-called intellectual diversity movement which aims to dismantle a presumed liberal bias in higher academia. It has ties to far right groups and funders including the Goldwater Institute, the State Policy Network, and the Harry Bradley Foundation. It has especially deep ties to the Koch Brothers.

    Their main purpose is to threaten legal action to intimidate and silence progressive thought on campuses.

    Given the accusations that have been made, we should suffer no illusions. Once groups like FIRE dispose of black dissenters and others, they will quickly go after Jewish people as well, just as history has demonstrated time and again.

    • Nathaniel Rosen says:

      Presumed liberal bias? Is there any doubt?

    • PaulD says:

      Jews have more to worry from the left-wing crowd. The student body vice president of the University of Southern California was just forced out because of her support for Zionism.

      In recent weeks, we have seen Black entertainers and athletes in the United States post anti-Semitic rants on their social media sites. Former NBA stars Kareem Abdul-Jabbar and Charles Barkley have spoken out against them.

      • Hmus says:

        As so often happens here, your definition of Jews is limited to followers of the Likud Party, just like Trump’s definition of Americans includes only right-wing Republicans.

    • anon says:

      William, surely you realise that such ties to right-wing groups, if they do exist, do not invalidate the claim that intellectual and political diversity on university campuses has been eroded in the extreme… Google ‘association fallacies’.

      • DAVID says:

        Exactly. It’s the rather facile, and reductive, argument that anybody refusing to drink the Kool-Aid shoved down our throats by the coddled graduate student mob is necessarily on the wrong side of history — if not much worse. I’m actually left-leaning myself, but the left, for a long time now, has simply lost its way and substituted to true political action mere postmodern clichés that may make one look cool within the circle of one’s fellow students, but which do absolutely nothing to effect real, meaningful change. What the people behind this whole thing do not realize is that the very view of the world they allegedly so passionately advocate is simply inconsistent with their own reality — i.e., that of a bourgeois, well-to-do existence which alone can enable one to afford a yearly tuition in some cases approaching the 6-figure mark. Black students growing up in poor, disadvantaged neighborhoods unfortunately do not have access to such opportunities, and that’s the real and only problem here — not the questionable musings of an obscure music theorist whose time has long since passed and whose writings are essentially unknown not only to the public at large, but even to those professional musicians who don’t just talk about music but who make a living actually playing it, and who don’t need to have mastered theory in order to understand and perform a broad repertoire spanning a wide variety of epochs and styles. Instead of focusing so relentlessly on this poor Schenker — which, by the way, was still essentially unknown to the public at large until a few weeks ago, even though his “racist” writings have been readily available in university libraries for well over a century — they should take a hard look at themselves and actually do something concrete in the actual world in order to help solve the very problems they are denouncing, instead of hypocritically remaining in the safe and sheltered bubble of the university system. When UNT realizes the potential loss of income they might experience due to this affair — and money, sadly, does talk and does remain the bottom line, even for the most progressive of institutions — they might begin to grow a spine, unless of course they have no qualms destroying their reputation and cowardly disregarding the very concept of academic freedom in order to accommodate the whims of their dictatorial student body.

      • No, I don’t think that. It’s more that American universities remain a last bastion of sanity in the USA and thus hated by the right.

        Some food for thought:

        • DAVID says:

          But the problem is that they are now veering towards their own form of insanity, and the backlash is beginning to show. The main problem in the United States is that every single area of life is becoming politicized and that every person needs to be subscribing to a specific camp. You can no longer approach a problem in and of itself independently, outside of a particular matrix, such as a political camp, ideology, or outside the lens of identity politics. There is no more place for critical and independent thought — you either belong to the club or are ostracized. Rational discourse has been replaced by tactics of silencing, intimidation, and shaming that truly belong to a different age. It’s now all about having one’s unexamined prejudices confirmed in a collective echo chamber, as if we were so insecure in our core beliefs that we needed to be constantly reassured. But reality is not that binary; it is in fact rich in complexity and much more nuanced. Sadly, the current situation with the pandemic is also due to such a primitive form of tribalism, which is prevalent in the everyday but which has also permeated the very last place where critical thought should in fact be cultivated: the university.

        • anon says:

          If you call the ritual mob-like intimidation of academics with controversial, but not necessarily wrong, opinions an example of sanity, then let’s just accept we have very different ideals of what a university should be

    • Marfisa says:

      Could it be said that some proponents of so-called progressive thought aim to stifle presumed far-right views?

      • Marfisa says:

        By which I meant to indicate that judgmental weasel-words like ‘so-called’ and ‘presumed’ are a cheap rhetorical trick, and can cut both ways. And a politically naive question: how can freedom of speech on university campuses imperil progressive thought?

      • william osborne says:

        Not their presumed views, but their actual practices of discrimination. Listened to Trump lately?

  • Anon says:

    Andrew Chung of North Texas just published this article: Music as sexual violence? Investigating the case of bar/club-based sex trafficking and sonic harm

    ‘Accounts of human trafficking suggest music’s uniquely insidious role for victims forcibly trafficked into strip club-based sex work, wherein music is ubiquitous. In sociological fieldwork, sex workers and trafficking victims testify to various effects of musical sound: against their will, the onset of music commands bodies to perform erotic dance, and songs’ formal and rhythmic features compel forms of movement. In situations of strip club-based trafficking, events of musical sound therefore amount to coercion – itself defined as a form of sexual violence by the World Health Organization. Comprehending structures of trafficking victims’ abjection requires communicative,semiotic understandings of coercion’s mechanisms, and must resist conflating violence andphysical materiality. Building on J. L. Austin’s theorization of how verbal utterances perform certain kinds of semiotic actions, I argue that musical sound can behave like certain assaultive and coercive speech acts: acts of signaling that command sexual performances from trafficking victims within gross power asymmetries. A discourse analysis of the public forum online “The Ultimate Strip Club List” (TUSCL), which hosts discussions amongst both sex workers and patrons of strip clubs, suggests situations where the entanglement of sound and materiality loses explanatory and emancipatory power to critique music’s injurious capacities.’

    How do these people get jobs?

    • marcus says:

      Is that for real? If I were unfortunate to be on the receiving end of being stuck in the sex trade I don’t think anywhere on my list of concerns would be the soundtrack.

      • SVM says:

        I cannot comment on the specific research, but one should not dismiss the psychological impact of having loud amplified music *imposed* on you involuntarily — it is undoubtedly an oppressive and possibly traumatic experience. As a town-centre resident, I find the disruption to my sleep caused by loud amplified music from one particular nightclub (which has recently reopened despite ongoing COVID-19 regulations — apparently, it calls itself a “pub”, so it can circumvent the ban on nightclubs) very upsetting; I dread to imagine how bad it must be for those who have no choice but to work inside the venues involved.

        Maxwell Davies commented eloquently on the oppressive nature of some commercial amplified music in a keynote speech to the ISM in 2007:

        “in /1984/, Orwell envisaged the future of mankind as the perpetual stamping of a jackboot on the face of humanity. In this regard our consumer culture has achieved something more subtle and more penetrating than Lenin’s Agitprop or Goebbel’s Reichspropagandaministerium, or anything envisaged in a Huxleyan or Orwellian nightmare future. The exploited victims do not feel themselves the exploited subjects of designs upon their minds and pockets, and while having mind, heart and intellect stamped upon and numbed, and their pockets emptied, they enjoy and welcome the experience, which becomes a drug, an all-powerful soporific, insulating the victims from all reality, and particularly from political reality. To witness “music” being used as an instrument of mind-control or mind-erasure in this manner is as repulsive, in its way, as was witnessing Mozart and Schubert played by the concentration camp band as Hitler’s victims were marched to their fate.”


    • Lu says:

      And the relevance of your copy and paste is?

    • Mr. Knowitall says:

      Everything that Chung says about the association between music and sex work could also be said about the association between music and Chucky Cheese.

      • Marfisa says:

        Goodness: “against their will, Chucky Cheese commands bodies to perform erotic dance, and Cheese’s formal and rhythmic features compel forms of movement”. Well, perhaps it works for you!
        The way music affects body and mind is not a new discovery. I suggest another listen to Alexander’s Feast (lyrics: Dryden; music: Handel) – there is a great Harnoncourt performance somewhere on YouTube .

        • Mr. Knowitall says:

          I suspect that you have never been to a Chuck E. Cheese. (Apologies for the misspell in the previous post.)

    • Enquiring Mind says:

      The music is mostly rap. If they were playing Takemitsu, music would be a non-issue.

  • Greg Bottini says:

    There is no First Amendment proscription on bullshit.
    “Congress shall make no law….abridging the freedom of speech, or of the press”.
    That’s how it reads.

  • Barbara says:

    here we go again.

  • John Borstlap says:

    Incredible that Schenker, after all, gets people so worked-up.

    • William Safford says:

      Well, all this scuttlebutt puts him in the, um, foreground….

      I do have to say, though, that it’s a bit of a surprise that this prolongation of the discussion is still unfolding….

  • anon says:

    Hallelujah – someone pointing out the stupidity and illegality of woke universities clamping down on free expression and matters of disagreement.

  • Sue Sonata Form says:

    Gobbledygook which plays into the hands of Trump’s base.

  • Elizabeth Owen says:

    Times have changed and the world has moved on. Maybe they need to update their sources – Right to bear arms etc.

    • William Safford says:

      Ah, yes, a reference to the Second Amendment Lie.

      I quote former Chief Justice Warren Burger:

      “The Second Amendment ‘has been the subject of one of the greatest pieces of fraud, I repeat the word fraud,’ on the American public,’ former chief justice Warren E. Burger said in a 1991 interview on PBS’s “MacNeil/Lehrer NewsHour.” Burger has said often that the “right to bear arms” belongs to the states, and he has attacked the NRA for fostering the opposite view.” (Washington Post)

      This fraud has been perpetrated in part by the very organization that has defrauded so many, and is now being sued possibly literally out of existence for its corruption: the NRA.

      You are right, though–things have changed, and they may change even more in upcoming months.

  • Joshua Clement Broyles says:

    The First Amendment does not protect fraud. The Schenkerians should be shut down simply on the basis that what they do is fraudulent.