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Friday, December 24, 2010

Christmas Music, Presented by the Borough of Brooklyn (Whether You Like It or Not)

My normal evening commuting path takes me from Brooklyn Law School to the subway stop at Jay Street.  This route takes me down two blocks of Fulton Street, a shopping district in downtown Brooklyn.  Every Christmas season the city, in addition to displaying holiday lights, plays Christmas music from loudspeakers on the street.  I have to admit it often annoys me.  It's not that I dislike the music itself; I don't mind Christmas music as a general matter.  But the idea of the city broadcasting music onto a public street, not as part of festival or a special event, but for over a month every year, really grates.  It reminds me of this Depeche Mode Album Cover, which in turn reminds me of this wonderful Depeche Mode video from the same album.  In turn, that reminds me of the fantastic Terry Gilliam movie, Brazil.  And the government satirized in "Brazil" leads me, ultimately, to come full circle and think of Pollak.

Pollak? That would be Public Utilities Commission v. Pollak, the 1949 Supreme Court case where the Court upheld, against First and Fifth Amendment challenges, a federal law authorizing radio broadcasting to be piped into streetcars in Washington.  It's an interesting case, most notably because it features the first instance of the use of the term "captive audience" in a Supreme Court opinion -- in Justice Douglas's dissent.  It's also interesting because Justice Frankfurter recuses himself, apparently because he's so annoyed by the music on the streetcars (Justices rode streetcars back then?) that he felt the need to recuse himself.  As he said, "My feelings are so strongly engaged as a victim of the practice in controversy that I had better not participate in judicial judgment upon it."   Wow.

So I guess I'm in some good company: I feel like a captive, as Justice Douglas argues, and I'm annoyed, just like Justice Frankfurter.  But on the merits, what can you do?  It's really not unconstitutional (don't take my word for it: seven Justices voted to uphold the practice in Pollak).  And that's got to be the right result: if creches are constitutional as long as they're next to reindeer, then "White Christmas" must be constitutional (I've heard only one religious song so far this season, which presumably isn't enough to fail the endorsement test).  But as a citizen I really have to protest this uninvited government-funded serenade on my commute.  Do people really like this?  Or is this the kind of thing that nobody will protest, so no bureaucrat will risk heat by getting rid of it? 

On second thought, forget what the Court says: If I hate it it must be unconstitutional, right? Bah, humbug!

Posted by Bill Araiza on December 24, 2010 at 12:29 AM | Permalink


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Two small corrections: Pollak was 1952, not 1949, and it was the second, not the first, case to feature the term "captive audience." Thanks to D.S. for the heads up.

Posted by: Bill Araiza | Dec 24, 2010 10:04:44 AM

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