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WORK TITLE: Free Speech beyond Words
WORK NOTES: with Mark V. Tushnet and Joseph Blocher
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PERSONAL
Male.
EDUCATION:Case Western Reserve University, B.A. (summa cum laude), 1982; Stanford University, J.D., 1985.
ADDRESS
CAREER
Lawyer, educator, and writer. Law clerk for Honorable Marvin E. Aspen, Chicago, IL, 1985-87; Roger Baldwin Foundation of ACLU, Inc., Chicago, IL staff counsel, 1987-92; University of Denver Sturm College of Law, Denver, CO, law faculty, law professor, 1992–, appointed William M. Beaney Memorial Research Chair, associate dean for faculty scholarship, 2008-2014; maintains active litigation docket. Also visiting research fellow at Queen Mary & Westfield College, University of London, London, England, 1999.
MEMBER:
Association of American Law Schools (chair, Civil Rights Section, 1998-99)
Edward Sherman Award for Outstanding Cooperating Attorney, American Civil Liberties Union of Colorado, 1997.
WRITINGS
Contributor to professional journals, including the Columbia Law Review, Michigan Law Review, Vanderbilt Law Review, and Iowa Law Review.
SIDELIGHTS
Alan Chen is a law professor who is an expert in First Amendment free speech doctrine and theory, federal courts law, and public interest law. Although he teaches full-time, Chen, who worked for the American Civil Liberties Union (ACLU), also continues to practice law and provide pro bono legal work. He has represented plaintiffs in civil rights cases in federal courts throughout the United States. These cases include constitutional challenges to police use of pepper spray on peaceful protestors in California, botched lethal injection execution in the State of Oklahoma, and Colorado’s mandatory Pledge of Allegiance law.
Public Interest Laywering
A contributor of scholarly articles to professional journals, Chen is also coauthor with Scott L. Cummings of Public Interest Lawyering: A Contemporary Perspective. Chen and Cummings draw from a wide range of theoretical and empirical perspectives to provide a comprehensive view of public interest lawyering, from the lives of public interest lawyers and their clients to the various causes they have worked for over the years. The book also examines the strategies public interest lawyers use and the various challenges they continue to face.
Chen and Cummings discuss important theoretical issues concerning the definition and scope of public interest lawyering and provide an historical perspective on the issues faced by these lawyers in the twenty-first century. They also delve into the advantages and limits of various legal strategies and these lawyers’ ethical obligations. Other topics include lawyer-client relations, conservative cause lawyering, government lawyers, and global social change and lawyering. “In Public Interest Lawyering: A Contemporary Perspective, Professors Alan Chen and Scott Cummings translate the complex world of public interest practice into a powerful pedagogical framework,” wrote UCLA Law Review Discourse contributor Douglas NeJaime, who added: “In the process, they furnish a com- prehensive and engaging account of the relationship between lawyering and social change.”
Free Speech Beyond Words
In his next book, Free Speech Beyond Words: The Surprising Reach of the First Amendment, Chen and coauthors Mark V. Tushnet and Joseph Blocher examine the First Amendment to the Constitution of the United States of America in relation to cases that protect freedom of expression beyond the spoken word. For example, in cases before the Supreme Court, the court has ruled that paintings by abstract expressionist painter Jackson Pollock and the music of Arnold Schöenberg, an Austrian composer, music theorist, and painter, are guaranteed constitutional protection by the First Amendment.
“This book represents a sustained effort to account, constitutionally, for these modes of ‘speech,'” the author’s write in the introduction to Free Speech Beyond Words. They go on to examine how modes of expression that do not use language in a traditional way and that may not even express “articulable ideas” can be viewed as speech. The authors conclude that some things cannot be expressed with the traditional use of language but are still worth expressing and protection by the First Amendment.
Overall, the author examine a wide range of nonrepresentational art, music, and even nonsensical words, such as Lewis Carroll’s poem “Jabberwocky.” They point out that these forms of expression typically do not represent what Americans think of as speech, that is, the use of words to convey meaning. Each of the authors contribute a chapter to the book, with Chen focusing on instrumental music, Tushnet on nonrepresentational art, and Blocher on nonsense.
Int he book’s concluding chapter, “Going Further, Additional Problems and Concluding Thoughts,” Chen, Tushnet, and Blocher examine how forms of expression that typically do not contain a readily identifiable message or idea are problematic in terms of First Amendment coverage. They discuss what their examination on music, nonrepresentational art, and nonsense offer in relation to thinking about other forms of nonrepresentational expression such as dance, from social dancing to erotic dancing. Chen, Tushnet, and Blocher conclude that in the future, each case will have to be addressed on an individual basis.
“Free Speech Beyond Words offers students of Free Speech, politicians, legal scholars, and the average person on the street a detailed and engaging overview of this tantalizing subject,” wrote History in Review Web site contributor Harry S. Chou. A Publishers Weekly contributor called Free Speech Beyond Words “a valuable introduction to a field that will become only more significant with the development of new media.”
BIOCRIT
BOOKS
Chen, Alan I., and mark V. Tushnet and Joseph Blocher, Free Speech Beyond Words: The Surprising Reach of the First Amendment, NYU Press (New York, NY), 2013.
PERIODICALS
Library Journal, December 1, 2016, Becky Kennedy, review of Free Speech Beyond Words: The Surprising Reach of the First Amendment, p. 107.
Publishers Weekly, November 14, 2016, review of Free Speech Beyond Words, p. 42.
UCLA Law Review Discourse, volume 182, 2013, Douglas NeJaime, “The View from Below: Public Interest Lawyering, Social Change, Lawyering, Social Change, and Adjudication,” review of Public Interest Lawyering: A Contemporary Perspective.
ONLINE
History in Review, http://www.historyinreview.org/ (March 20, 2017), Harry S. Chou, review of Free Speech Beyond Words.
Strum College of Law Web site, http://www.law.du.edu/ (August 29, 2017), author faculty profile.
Alan K. Chen is William M. Beaney Memorial Research Chair & Professor of Law at the University of Denver Sturm College of Law. He is the co-author of Public Interest Lawyering: A Contemporary Perspective.
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Home » Faculty & Staff Directory » Alan Chen
Email:
achen@law.du.edu
Phone:
(303) 871-6283
Office:
455E
Classes:
Constitutional Law
Constitutional Litigation
Federal Jurisdiction
Social Change Lawyering
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Alan
Chen
Professor
Constitutional Law
First Amendment Law
Federal Courts
Public Interest Law
B.A., 1982, summa cum laude, Case Western Reserve University
J.D., 1985, Stanford University
Alan Chen is a leading national expert in free speech doctrine and theory, the law of federal courts, and public interest law. He is the co-author of two books, PUBLIC INTEREST LAWYERING: A CONTEMPORARY PERSPECTIVE (Wolters Kluwer Law & Business 2013) and FREE SPEECH BEYOND WORDS: THE SURPRISING REACH OF THE FIRST AMENDMENT (NYU Press 2017). He has also written numerous scholarly articles, and his work has been published in many of the leading national law journals, including the Columbia Law Review, Michigan Law Review, Vanderbilt Law Review, and Iowa Law Review. Since joining the Sturm College of Law faculty in 1992, Chen has received several awards for his teaching, contributions to the law review, and pro bono legal work.Although he is a full-time academic, Professor Chen continues to carry an active litigation docket and represents the plaintiffs in many high-profile civil rights cases in federal courts around the country, including constitutional challenges to police use of pepper spray on peaceful protestors in California, the State of Oklahoma’s botched lethal injection execution of Clayton Lockett, “Ag-Gag” laws in Idaho and Utah that punish undercover investigators and journalists, and Colorado’s mandatory Pledge of Allegiance law. Before entering teaching, Chen was a staff attorney with the ACLU’s Chicago office, where he was a civil liberties litigator focusing primarily on cases concerning the First Amendment, police misconduct, and privacy rights. Before that, he served as a law clerk to the Honorable Marvin E. Aspen, U.S. District Court judge for the Northern District of Illinois.
Alan Chen
Free Speech Beyond Words, co-authored with Mark Tushnet and Joseph Blocher (New York University Press) (2017).
Free Speech and Democracy in the Video Age, co-authored with Justin Marceau, 116 Colum. L. Rev. 991 (2016).
Instrumental Music and the First Amendment, 66 Hastings L.J. 381 (2015).
High Value Lies, Ugly Truths, and the First Amendment, co-authored with Justin Marceau, 69 Vand. L. Rev. 1435 (2015).
Rights Lawyer Essentialism: Reflections on Richard Thompson Ford’s Rights Gone Wrong, 111 Mich. L. Rev. 903 (2013).
PUBLIC INTEREST LAWYERING: A CONTEMPORARY PERSPECTIVE, co-authored with Scott L. Cummings, (2013).
Rosy Pictures and Renegade Officials: The Slow Death of Monroe v. Pape, 78 UMKCL.REV. 889 (2010).
Bureaucracy and Distrust: Germaneness and the Paradoxes of Academic Freedom Doctrine, 77 U. Colo. L. Rev. 955 (2006).
The Facts about Qualified Immunity, 55 Emory L.J. 229 (2006).
Forced Patriot Acts, 81 Denv. U. L. Rev. 703 (2004).
Foreword: Bill Beaney's Continuing Relevance, 81 Denv. U. L. Rev. 217 (2003).
Statutory Speech Bubbles, First Amendment Overbreadth, and Improper Legislative Purpose, 38 Harv. C.R.-C.L. L. Rev. 31 (2003).
Teens in the UV Tanning Booth? Tax the Tan, co-authored with with Dellavalle, RP, Schilling, LM, Hester, EJ, ARCHIVES OF PEDIATRIC AND ADOLESCENT MEDICINE 2003, 157: 845-846.
Youth Access Laws: In the Dark at the Tanning Parlor, co-authored with with Dellavalle, Parker, Cersonsky, Hemme, Burkhardt, and Schilling, 139 ARCHIVES OF DERMATOLOGY 443 (April 2003).
Liability of Private Firms Performing Public Functions, TRIAL, Oct. 1999, at 60.
Shadow Law: Reasonable Unreasonableness, Habeas Theory, and the Nature of Legal Rules, 2 Buff. Crim. L. Rev 535 (1999).
Constitutional Law, in 1997 ANNUAL SURVEY OF COLORADO LAW, (1997).
The Burdens of Qualified Immunity: Summary Judgment and the Role of Facts in Constitutional Tort Law, 47 Am. U. L. Rev. 1 (1997).
"Meet The New Boss . . . ", 73 Denv. U. L. Rev. 1253 (1996).
The Ultimate Standard: Qualified Immunity in the Age of Constitutional Balancing Tests, 81 Iowa L. Rev. 261 (1995).
Burns v. Reed--Narrowing the Prosecutor's Protection From Liability for Unconstitutional Conduct, 3 POLICE MISCONDUCT AND CIVIL RIGHTS LAW REPORT 121 (1991).
Due Process As Consumer Protection: State Remedies For Distant Forum Abuse, 20 Akron L. Rev. 9 (1986).
CV: http://www.law.du.edu/sites/default/files/faculty-staff/Alan%20Chen/resume/alan-chen-1.pdf
Tushnet, Mark V. & others. Free Speech Beyond Words: The Surprising Reach of the First Amendment
Becky Kennedy
141.20 (Dec. 1, 2016): p107.
Copyright: COPYRIGHT 2016 Library Journals, LLC. A wholly owned subsidiary of Media Source, Inc. No redistribution permitted.
http://www.libraryjournal.com/
Tushnet, Mark V. & others. Free Speech Beyond Words: The Surprising Reach of the First Amendment. New York Univ. Feb. 2017.272p. photos, notes, bibliog. index. ISBN 9781479880287. $28; ebk. ISBN 9781479873746. LAW
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. VERDICT This thoughtful book debates the nature of speech itself. Law students and legal professionals will want to read it, though general readers will want to look elsewhere. Recommended for law and academic libraries.--Becky Kennedy, Atlanta-Fulton P.L.
Kennedy, Becky
Source Citation (MLA 8th Edition)
Kennedy, Becky. "Tushnet, Mark V. & others. Free Speech Beyond Words: The Surprising Reach of the First Amendment." Library Journal, 1 Dec. 2016, p. 107. General OneFile, go.galegroup.com/ps/i.do?p=ITOF&sw=w&u=schlager&v=2.1&id=GALE%7CA472371257&it=r&asid=d99bc0e6da28b8f130dc9848f95f4391. Accessed 10 Aug. 2017.
Gale Document Number: GALE|A472371257
Free Speech Beyond Words: The Surprising Reach of the First Amendment
263.46 (Nov. 14, 2016): p42.
Copyright: COPYRIGHT 2016 PWxyz, LLC
http://www.publishersweekly.com/
Free Speech Beyond Words: The Surprising Reach of the First Amendment
Mark V. Tushnet, Alan K. Chen, and Joseph Blocher. New York Univ., $28 (272p) ISBN 978-1-4798-8028-7
[ILLUSTRATION OMITTED]
Lay readers might not typically consider Jackson Pollock's paintings, Arnold Schonberg's music, and Lewis Carroll's poem "Jabberwocky" to be protected expressions under the First Amendment, but law professors Tushnet, Chen, and Blocher effectively explain why they are considered free speech. They open with a significant paradox: as "nonrepresentational art, instrumental music, and nonsense do not employ language in any traditional sense," and may not even express "articulable ideas," how can they be considered speech? Their logical, if not intuitive, answer--"Sometimes things are worth expressing even when they cannot be put into words"--frames their exploration of First Amendment theory and the balancing tests that the Supreme Court has applied in the past. The authors ultimately conclude that both case-law and theoretical approaches to free speech issues offer limited general guidance, and that a case-by-case analysis of future controversies is the best one can hope for. This is a valuable introduction to a field that will become only more significant with the development of new media, such as virtual reality and digital mapping, that could merit First Amendment protection. (Feb.)
Source Citation (MLA 8th Edition)
"Free Speech Beyond Words: The Surprising Reach of the First Amendment." Publishers Weekly, 14 Nov. 2016, p. 42+. General OneFile, go.galegroup.com/ps/i.do?p=ITOF&sw=w&u=schlager&v=2.1&id=GALE%7CA473459013&it=r&asid=06edc1d499fb0fa7e5e40f78cfcade83. Accessed 10 Aug. 2017.
Gale Document Number: GALE|A473459013
Free Speech Beyond Words
The Surprising Reach of the First Amendment
By Mark V. Tushnet, Alan K. Chen, and Joseph Blocher
NYU Press, 2017
ISBN: 978-1-4798-8028-7
Reviewed by Harry S. Chou - March 20, 2017
We've all heard that the First Amendment is under attack. But what is the First Amendment, and why is it so important? This amendment covers a host of topics such as the Freedom of Religion and the Freedom of Assembly, but for the purposes of this review, we'll focus on one topic - the Freedom of Speech.
For starters, here is the text of this amendment:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." (Constitution of the United States of America - Amendment I of the Bill of Rights)
In their new book, Free Speech Beyond Words, the book's authors: Mark V. Tushnet, Alan K. Chen, and Joseph Blocher, contend that free speech transcends oral speech and the written word. Free speech also covers traditional art and music. The authors and many legal scholars also contend that free speech includes non-representational art and instrumental music. They also content that something called 'nonsense' is also covered. In this timely book the authors examine these less traditional forms of free speech, and to examine what is meant by nonsense speech (speech or an action that lacks meaning) and how the courts have reacted to cases concerning nonsense speech.
The information provided in this timely book is divided into three main parts, instrumental music, non-representational, and nonsense speech. In each section the authors provide an overview of each type of speech, how these types of speech have been viewed by the courts, and what these types of speech mean for average Americans. The book concludes with a section called "Going Further" that looks at other forms of expression that are covered under the banner of free speech, such as dance, nonobscene pornography, sports, culinary arts, subliminal messages, new media, video games, and much more. The end result is a comprehensive overview of non-traditional forms of free speech and how they have been judged by the court system.
Free Speech Beyond Words offers students of Free Speech, politicians, legal scholars, and the average person on the street a detailed and engaging overview of this tantalizing subject. For those who want to study this subject in more detail, the authors have included an up-to-date bibliography and extensive endnotes that will guide you to additional resources on this subject.
The View From Below: Public Interest Lawyering, Social Change, and Adjudication
Douglas NeJaime
INTRODUCTION
In Public Interest Lawyering: A Contemporary Perspective, Professors Alan Chen and Scott Cummings translate the complex world of public interest prac- tice into a powerful pedagogical framework.1 In the process, they furnish a com- prehensive and engaging account of the relationship between lawyering and social change. The lawyers who populate the text have developed models of practice that leverage law’s possibilities while accounting for its limitations. The- se lawyers operate across a range of institutional domains and rely on legal and nonlegal tactics. Collectively they work in a number of different professional set- tings and represent clients and causes in an array of substantive areas across the political spectrum. By showing today’s law students, who constitute the future of public interest practice, the sophistication and variety that characterizes the field, Chen and Cummings ensure that it remains a rich and lively area for both prac- tice and research.
Specialized courses on public interest law are the most likely candidates for Chen and Cummings’ textbook, but in this Review Essay, I explore the benefits of deploying the textbook’s lessons more broadly across the law school curricu- lum. I attend to how key insights from Public Interest Lawyering could impact students’ outlook on adjudication, which serves as the main way students under- stand the production and meaning of law. I focus specifically on the paradigmat- ic adjudicative moment—a U.S. Supreme Court decision. By extending the marriage equality case study with which Chen and Cummings conclude the textbook, I explore how students can approach the recent Supreme Court deci- sions in Hollingsworth v. Perry2 and United States v. Windsor3 through the lens of- fered by Public Interest Lawyering. I argue that rather than viewing legal and social change as a top-down process driven by courts and judges, students could see a dynamic, bottom-up process fueled by lawyers, litigants, and activists. Moreover, students could see courts as lively participants in a dialogue about constitutional and social change, responding to, rather than commanding, nonjudicial actors. These lessons can alter the way students approach subjects across the curriculum and ultimately impact their careers as lawyers.
1. ALAN K. CHEN & SCOTT L. CUMMINGS, PUBLIC INTEREST LAWYERING: A CONTEMPORARY PERSPECTIVE (2013).
2. 133 S. Ct. 2652 (2013).
3. 133 S. Ct. 2675 (2013).

The View From Below 185
I. PUBLIC INTEREST LAWY ERING
Each chapter in Public Interest Lawyering addresses a significant component of the field. Chen and Cummings trace the historical trajectory of public interest law.4 They dedicate significant attention to the identities of public interest law- yers themselves and the variety of practice settings they inhabit.5 The authors show the range of tactics public interest lawyers deploy, examining both legal and nonlegal advocacy in multiple arenas and at all levels of government.6 They doc- ument the global proliferation of public interest practice.7 They attend to law- yers’ relationships to their clients and explore the ethical and representational issues that arise in this context.8 The authors’ rich account of public interest law- yering reveals a complex field of actors—movements, allies, countermovements, the state—each complicated by internal divisions over priorities and tactics.
In the final chapter, Chen and Cummings “put it all together”9 by offering case studies of lawyers for two different social change campaigns. The first ad- dresses the LGBT rights movement’s marriage equality campaign in California; the second involves the campaign by labor, environmental, and community
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First page of introduction