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Defining ‘Speech’: Subtraction, Addition, and Division

Published online by Cambridge University Press:  26 July 2016

Robert Mark Simpson
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Abstract

In free speech theory ‘speech’ has to be defined as a special term of art. I argue that much free speech discourse comes with a tacit commitment to a ‘Subtractive Approach’ to defining speech. As an initial default, all communicative acts are assumed to qualify as speech, before exceptions are made to ‘subtract’ those acts that don’t warrant the special legal protections owed to ‘speech’. I examine how different versions of the Subtractive Approach operate, and criticize them in terms of their ability to yield a substantive definition of speech which covers all and only those forms of communicative action that—so our arguments for free speech indicate—really do merit special legal protection. In exploring alternative definitional approaches, I argue that what ultimately compromises definitional adequacy in this arena is a theoretical commitment to the significance of a single unified class of privileged communicative acts. I then propose an approach to free speech theory that eschews this theoretical commitment.

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Research Article
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Canadian Journal of Law & Jurisprudence , Volume 29 , Issue 2 , August 2016 , pp. 457 - 494
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Copyright © Canadian Journal of Law and Jurisprudence 2016 

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Footnotes

Thanks to the editor and an anonymous referee from this journal for their comments on an earlier draft. This paper has been improved by feedback from audiences at the University of Chicago Law and Philosophy Workshop, the Northwestern University Practical Philosophy Workshop, the 2015 Workshop on Global Expressive Rights at Dartmouth College, and the Melbourne Legal Theory Workshop at the University of Melbourne. Thanks to Susan Brison, Raff Donelson, Kath Gelber, Brian Leiter, and Lael Weis for these opportunities to present, and thanks especially to Natalie Stoljar and Adrienne Stone for preparing response presentations to my paper at Dartmouth and Melbourne respectively. For comments, criticisms, and suggestions, I’m grateful to all of the aforementioned people, as well as Ryan Doerfler, Amanda Greene, Andy Koppelman, Genevieve Lakier, Mary Kate McGowan, Martha Nussbaum, David Strauss, and Heather Whitney.

References

1. Schauer, Frederick, Free Speech: A Philosophical Inquiry (Cambridge: Cambridge University Press, 1982) at 91.Google Scholar

2. Mill, John Stuart, On Liberty (London: Penguin Books, 1985 [1859]) at 119.Google Scholar

3. 249 US 47 (1919).

4. On this characterization of Speech as special, see Frederick Schauer, “Must Speech be Special?” (1983) 78:5 Nw UL Rev 1284; Douglas N Husak, “What is so Special about (Free) Speech?” (1985) 4:1 Law & Phil 1. In what follows I say nothing about non-verbal communicative acts, like the wearing of a black armband, being counted as Speech. I assume the standard view, that some such communicative acts can be categorized as Speech because they’re communicative in a way that’s relevantly similar to paradigmatic forms of Speech; see Paul Berckmans, “The Semantics of Symbolic Speech” (1997) 16:2 Law & Phil 145. In any case, this point has little bearing on an assessment of the Subtractive Approach and how it compares to other definitional methods. No method for defining Speech should categorize non-verbal communication as Speech by default, and any method can widen the borders of Speech to include some instances of non-verbal communication.

5. The relevant notion of harmlessness here is one that’s correlative to a particular technical sense of ‘harm’, on which a harm is something like a rights-violating setback to an individual’s interests; see for instance Feinberg, Joel, Harm to Others: The Moral Limits of the Criminal Law, vol. 1 (Oxford: Oxford University Press, 1985).Google Scholar

6. Here and below I stress that liberalism begins with the harm principle, and that free speech principles don’t do any distinctive work unless they operate against the backdrop of the harm principle. But this isn’t meant to suggest that in the U.S. or any other liberal democracy the harm principle is enacted with anything like full consistency; after all, most liberal states prohibit harmless acts, e.g., related to public nudity. (Thanks to Martha Nussbaum for pressing me on this.) My point is that where there isn’t even any notional allegiance to the harm principle—e.g., where heterodox ideas are routinely suppressed, without even any pretense that this is done for the sake of preventing harm to others—it’s inapt to speak of violations of free speech. Free speech principles, properly characterized, are not merely one ramification of the harm principle, they are an independent supplement to it.

7. See Lawrence Alexander & Paul Horton, “The Impossibility of a Free Speech Principle” (1984) 78:5 Nw UL Rev 1319.

8. See §§1-2 of The Canadian Charter of Rights and Freedoms, Part I of the Constitution Act 1982, being schedule B to the Canada Act 1982 (UK), 1982, c11.

9. Sumner, LW, The Hateful and the Obscene: Studies in the Limits of Free Expression (Toronto: University of Toronto Press, 2004) at 10.CrossRefGoogle Scholar

10. At any rate, this is how we should understand the specialness of Speech in a legal system that purports to impose categorical constraints on government regulation of communicative action. Certain recent U.S. Supreme Court decisions cast doubt on whether this is the operative understanding of Speech’s specialness under current First Amendment doctrine. For example, in Snyder v Phelps 562 US 443 (2011), the court appears to rule that it would be unconstitutional to restrict members of the Westboro Baptist Church from picketing soldiers’ funerals irrespective of the pain that that activity causes to others; see Frederick Schauer, “Harm(s) and the First Amendment” (2011) 2011:1. Sup Ct Rev 81 at 87-90.

11. For instance, we might classify libel as Speech while at the same time regarding the harms caused or threatened by libeling Speech as sufficient, at least in principle, to justify its legal restriction; see Schauer, supra note 1 at 89-92.

12. Thanks to David Strauss for pressing me on this point.

13. See Schauer, supra note 1; Joshua Cohen, “Freedom of Expression” (1993) 22:3 Philosophy & Public Affairs 207.

14. See, most famously, Mill, supra note 2.

15. See Alexander Meiklejohn, Free Speech and its Relation to Self-Government (New York: Harper & Brothers, 1948); or in late 20th century legal philosophy, Dworkin, Ronald, A Matter of Principle (Oxford: Oxford University Press, 1985).Google Scholar

16. See, for instance, Baker, C Edwin, Human Liberty and Freedom of Speech (Oxford: Oxford University Press, 1989);Google Scholar Coetzee, JM, Giving Offense: Essays on Censorship (Chicago: University of Chicago Press, 1996).CrossRefGoogle Scholar

17. See, for instance, Raz, Joseph, “Free Expression and Personal Identification” in Ethics in the Public Domain (Oxford: Oxford University Press, 1994) 131.Google Scholar

18. Arguments from Government figure notably in Schauer’s early free speech writing, especially supra note 1, and free speech theory regularly returns to them, especially in the work of American First Amendment scholars who find more utopian perspectives on free speech—as a royal road to truth or democracy—a bit too rose-colored; as in, for instance, Vincent Blasi, “The Pathological Perspective and the First Amendment” (1985) 85:3 Colum L Rev 449.

19. An argument that I’m ignoring in this section—one that’s notable, but ultimately idiosyncratic—is the argument from tolerance, on which the reason for specially protecting Speech is that the state can thereby signal a tolerant ethos and thus help nurture tolerant sensibilities in society at large; see Lee C Bollinger, The Tolerant Society (Oxford: Oxford University Press, 1986). Another kind of argument I’m ignoring is the kind that stresses people’s agency or autonomy as the key thing that’s honored or promoted in a regime of communicative liberty; for a recent example see Seana Valentine Shiffrin, “A Thinker-based Approach to Freedom of Speech” (2011) 27:2 Const Commentary 283. Arguments of this latter kind have been roundly criticized; see, e.g., Susan J Brison, “The Autonomy Defense of Free Speech” (1998) 108:2 Ethics 312. I’m ignoring them not for that reason, but just because I think they advert to values that are accounted for in the other free speech arguments noted above.

20. In thinking critically about our methods for defining Speech, in accordance with the approach that I’ve outlined here, the wider theoretical aim is not merely to say what the operative conception of Speech in free speech theory and practice is, as a matter of contingent sociological fact, but rather to say what conception of Speech ultimately should be at work in free speech theory. In her influential work in social theory Haslanger calls this mode of inquiry into a contested concept an ‘ameliorative inquiry’; see, e.g., Sally Haslanger, “Gender and Race: (What) are They? (What) Do We Want Them to Be?” (2000) 34:1 Noûs 31. For a detailed defense of the view that ameliorative inquiries are a legitimate part of conceptual analysis in law and legal theory, see, e.g., Stoljar, Natalie, “What Do We Want Law to Be? Philosophical Analysis and the Concept of Law” in Waluchow, Wil & Sciaraffa, Stefan, eds, Philosophical Foundations of the Nature of Law (Oxford: Oxford University Press, 2013) 230.CrossRefGoogle Scholar

21. 315 US 568 (1942).

22. 403 US 15 (1971).

23. Outside the framework of legal institutions, some purely political-theoretical inquiries into what should be counted as Speech work at this same intersection, between the underlying normative aims of free speech principles and the social issues raised by a particular type of communicative conduct. One recent example of this, which examines whether hate speech should qualify as Speech, is in Caleb Yong, “Does Freedom of Speech Include Hate Speech?” (2011) 17:4 Res Publica 385.

24. The Court has narrowed its definition of fighting words each time it has applied it, and hence Chaplinsky himself, as Lawrence wryly notes, is “the only defendant … ever found to have used fighting words”; see Frederick M Lawrence, “Violence-conducive Speech: Punishable Verbal Assault or Protected Political Speech?” in David Kretzmer & Francine Kershman Hazan, eds, Freedom of Speech and Incitement Against Democracy (London: Kluwer Law International, 2000) 11 at 28.

25. 8-205, 558 US 310 (2010).

26. Bipartisan Campaign Reform Act of 2002, Pub L No 107-155, 116 Stat 81.

27. 494 US 652 (1990).

28. By ‘protected’, here, I mean ‘subject to strict scrutiny in the process of judicial review’.

29. For critiques of the substance of the majority reasoning in Citizens United, supra note 25, see, e.g., Lawrence Lessig, “A Reply to Professor Hasen” (2012) 126 Harv L Rev F 61; Steven J Heyman, “The Conservative-Libertarian Turn in First Amendment Jurisprudence” (2014) 117:1 W Va L Rev 231.

30. As one popular First Amendment casebook observes, “the court has not upheld a restriction on speech because it might induce readers or listeners to engage in criminal activity since Dennis (1951) …. The Court has not upheld a restriction on speech because it might provoke a hostile audience response since Feiner (1951). It has never upheld a restriction on speech because the ideas expressed might have an improper influence on the judicial process”; Geoffrey R Stone, Louis M Seidman, Cass R Sunstein, Mark V Tushnet & Pamela S Karlan, The First Amendment, 4th ed (New York: Wolters Kluwer Law & Business, 2012) at 125.

31. Obscenity is a rather complex case, though. The standard of obscenity outlined in Roth v United States, 354 US 476 (1957) was altered sixteen years later in Miller v California, 413 US 15 (1973), such that, in order to be prohibited, a work only needed to be found to lack ‘serious’ value, rather than it having to be found to be ‘utterly without socially redeeming value’. Miller thus extended the compass of ‘obscenity’, and thereby—against the overriding trend in First Amendment coverage through this era—subtracted some communicative acts from the protected domain of Speech. But in between Roth and Miller, Stanley v Georgia, 394 US 557 (1969) included a clarifying ruling to the effect that the First Amendment disallows any prohibition on the mere private (i.e., non-commercial) possession and consumption of obscene material. In that ruling, Stanley effectively narrowed the range of communications held outside the domain of First Amendment protection via the excepted category of obscenity.

32. The brevity of my discussion here makes it difficult to avoid some oversimplification. As Schauer has recently reemphasized, there are some kinds of communicative behaviors (like perjury) for which there’s never been any onus on anyone to justify their exclusion from Speech—which are, rather, simply universally accepted as being outside the domain of Speech, despite the fact that they obviously involve ‘speech’ in the everyday sense of the word; see Frederick Schauer, “Out of Range: On Patently Uncovered Speech” (2015) 128 Harv L Rev Forum 346. (Thanks to Andy Koppelman for pressing me on this.) To be clear, then, my remarks above primarily apply to types of communication whose status as Speech or non-Speech has been a matter of live controversy. I should also note that when it comes to questions of coverage, the historical evolution of First Amendment doctrine has been considerably less tidy than what’s suggested in the broad-strokes picture that I’ve been painting. Lakier convincingly argues that things like libel and commercial advertising have had a volatile and unsettled trajectory—vis-à-vis their status as Speech or non-Speech—more so than is usually acknowledged in contemporary First Amendment jurisprudence; see Genevieve Lakier, “The Invention of Low-value Speech” (2015) 128:8 Harv L Rev 2166.

33. John Paul Stevens, “The Freedom of Speech” (1993) 102:6 Yale LJ 1293 at 1310-11.

34. See Nat Hentoff, Free Speech for Me But Not for Thee: How the American Left and Right Relentlessly Censor Each Other (New York: Harper Collins, 1992).

35. Fish, Stanley, There’s No Such Thing as Free Speech, and it’s a Good Thing Too (Oxford: Oxford University Press, 1994) at 110.Google Scholar

36. See Frederick Schauer, “The Ontology of Censorship” in Robert C Post, ed, Censorship and Silencing: Practices of Cultural Regulation (Los Angeles: Getty Research Institute for the History of Art and the Humanities, 1998) 147; “The Boundaries of the First Amendment: a Preliminary Exploration of Constitutional Salience” (2004) 117:6 Harv L Rev 1765.

37. See Andrea Dworkin & Catharine A MacKinnon, Pornography and Civil Rights: A New Day for Women’s Equality (Minneapolis: Organizing against Pornography, 1988).

38. Richard Delgado, “Words that Wound: a Tort Action for Racial Insults, Epithets, and Name-calling” (1982) 17:1 Harv CR-CLL Rev 133.

39. Butler is one prominent contemporary figure who leans this way; see Judith Butler, “Ruled Out: Vocabularies of the Censor” in Robert C Post, ed, Censorship and Silencing: Practices of Cultural Regulation (Los Angeles: Getty Research Institute for the History of Art and the Humanities, 1998) 247.

40. There is some reason to think this perspective would have the support of some influential contemporary political philosophers who write on structural racial oppression. For instance, Mills’s work on radical black liberalism explicitly calls for the recovery of liberal ideals in the name of a radical egalitarian politics; see Charles W Mills, “Occupy Liberalism! Or, Ten Reasons Why Liberalism Cannot be Retrieved for Radicalism (And Why They’re All Wrong)” (2012) 15:2 Radical Philosophy Review 305.

41. Fish, supra note 35 at 115.

42. On this point see Andrew Koppelman, “Veil of Ignorance: Tunnel Constructivism in Free Speech Theory” (2013) 107:2 Nw UL Rev 647.

43. Greenawalt, Kent, Speech, Crime, and the Uses of Language (New York: Oxford University Press, 1989).Google Scholar

44. Ishani Maitra & Mary Kate McGowan, “The Limits of Free Speech: Pornography and the Question of Coverage” (2007) 13:1 Leg Theory 41; “On Racist Hate Speech and the Scope of a Free Speech Principle” (2010) 23:2 Can JL & Jur 343.

45. Greenawalt, supra note 43 at 41.

46. Ibid at 58-59.

47. JL Austin, How to Do Things with Words (Cambridge: Harvard University Press, 1962); PF Strawson, “Intention and Convention in Speech Acts” (1964) 73:4 The Philosophical Review 439; Searle, John R, Speech Acts: An Essay in the Philosophy of Language (Cambridge: Cambridge University Press, 1969).CrossRefGoogle Scholar

48. This will come as a surprise to those who read the initial, conjectural ‘performative’ versus ‘constative’ distinction in the early chapters of Austin, supra note 47, as the author’s actual position, ignoring the tripartite taxonomy he develops in the later chapters, after having spelled out the various inadequacies of the performative versus constative distinction.

49. Different theorists propose different taxonomical sub-classes of illocutionary action; these ones are from Searle; see John R Searle, “A Classification of Illocutionary Acts” (1976) 5:1 Language in Society 1. The other dimension of speech acts, which I’ve set aside here, is the ‘perlocutionary’. Words—as well as conveying content, and constituting acts by their very utterance—also produce effects. “Careful; it’s raining outside” conveys the locutionary content that it’s raining, and has the illocutionary force of a warning, but it also has the perlocutionary effect of, say, persuading someone to grab an umbrella. The perlocutionary act of persuasion isn’t constituted by the utterance of the words (as an illocutionary act is), but rather effected by the utterance.

50. Maitra & McGowan, supra note 44 (2007) at 54.

51. What I have in mind here are sermons delivered to church congregations, which espouse a deeply heteronormative sexual morality, and a doctrine of salvation that asserts a causal connection between sexual impurity and damnation.

52. As in the way Dworkin strains to situate pornography within the protective domain of ‘free speech’; see Ronald Dworkin, “Is There a Right to Pornography?” (1981) 1:2 Oxford J Leg Stud 177.

53. I’m not claiming that this is the ‘correct’, or most biblically accurate, or most charitable view of Christian sexual morality and soteriology (or that Christianity is worse than other major religions on this issue). I’m just saying that hate-filled carry-on of this kind, laced with threats of eternal punishment, is preached with some regularity at some evangelical churches.

54. Maitra & McGowan, supra note 44 (2010) at 352 [emphases added].

55. In some respects Maitra and McGowan’s work on this topic is an artefact of the dialectic that they’re responding to in First Amendment doctrine and discourse. Where Greenawalt favors his approach because he thinks there is something like a natural-kind distinction between Speech and non-Speech, which simply requires illumination, Maitra and McGowan use his type of methodology primarily as a creative way to show why things like anti-hate speech laws (which they think can be justified in the abstract) can also be made compatible with established First Amendment doctrine, despite prevailing opinion to the contrary. If hate speech is customarily classified as Speech, and if this makes it effectively impossible to legally regulate it, then—as a practical argumentative aim—adapting a well-regarded piece of First Amendment theorizing about coverage to argue that hate speech shouldn’t be covered by free speech principles is a sensible and savvy maneuver. My criticisms here are naturally only concerned with the deeper theoretical adequacy of this methodological approach to free speech coverage questions.

56. Haiman, Franklyn S, “Speech Acts” and the First Amendment (Carbondale: Southern Illinois University Press, 1993) at 5.Google Scholar

57. Sunstein appears to endorse the view I’m cautioning against here. He says all communicative action should qualify as Speech unless it “amounts to the commission of an independently illegal act” or “is evidence that the act has been committed”; Cass R Sunstein, “Words, Conduct, Caste” (1993) 60:3 U Chicago L Rev 795 at 836. But this won’t do. In a society where blasphemy is criminalized, for instance, the Courts could profess a commitment to Sunstein’s brand of free speech, just by noting that blasphemers are engaged in criminal conduct, such that no Speech is in fact restricted in their being punished. Determinations about which acts are criminalized ought to be answerable to prior judgments about what qualifies as Speech, not vice versa. Sunstein is right to observe a distinction between cases in which an utterance constitutes a criminal act (like a threat), and cases in which an utterance immediately causes a criminal act (like an incitement). Still, in some cases we should privilege the former as Speech. Yelling “the King is an idiot” on the street doesn’t cause sedition, it constitutes sedition. But nevertheless, sedition (in at least some of its forms) is a type of conduct that liberal free speech principles should protect, not something to be placed outside their sphere of protection simply on account of its being identified as a type of conduct.

58. Mary Kate McGowan, “On ‘Whites Only’ Signs and Racist Hate Speech: Verbal Acts of Racial Discrimination” in Ishani Maitra & Mary Kate McGowan, eds, Speech and Harm: Controversies over Free Speech (Oxford: Oxford University Press, 2012) 121. This piece is not tightly linked to the co-authored pieces discussed in §§5-6, Maitra & McGowan, supra note 44 (2007; 2010), which emulate Greenawalt’s program of seeking to identify the criterial features of verbal non-Speech.

59. The argument, in brief, is that both communicative acts are ‘exercitives’—speech acts that enact permissions/prohibitions—which have the capacity to enact permissibility facts by virtue of general features of pragmatic accommodation in conversation, and which enact permissibility facts that are discriminatory. This account builds on McGowan’s earlier work on conversational exercitives as developed in, e.g., Mary Kate McGowan, “Oppressive Speech” (2009) 87:3 Australasian J Phil 389.

60. On one hand, Mill characterizes Speech in terms of ‘liberty of thought and discussion’ and develops Arguments in defense of it based on that characterization; but at the same time, as Haworth says, there is “a great deal which [Mill] does want to allow, which doesn’t easily match the paradigm, but which he nevertheless wants to defend in terms of the same argument he applies to thought and discussion”; Alan Haworth, Free Speech (London: Routledge, 1998) at 32. Mill fails to see how much diversity there is in the kind of communicative action that the liberal state might want to protect, Haworth says, because under his analysis, everything that’s worthy of protection must be shoehorned into the conceptual category of ‘thought and discussion’.

61. For example, in the following: “A pervasive theme of this book is the difference between saying something with words and doing something with words. I have stressed the importance of the speaker’s aims in deciding how particular speech should be regarded. But many of the subjects we have considered show how much speech importantly does something, apart from influencing actions because people are persuaded by the ideas that are communicated. Many of those who claim that speech … undermines equality emphasize what this speech does, and they call on the government to stop the harmful effects”; Greenawalt, Kent, Fighting Words: Individuals, Communities, and Liberties of Speech (Princeton: Princeton University Press, 1995) at 152.Google Scholar

62. McGowan, supra note 58 at 145 [emphases added].

63. Here I’m echoing the kinds of expressions used by critics of free speech orthodoxy like Fish, supra note 35 at 125-26, and MacKinnon; see Catharine A MacKinnon, Only Words (London: Harper Collins, 1994) at 8.

64. Frederick Schauer, “Categories and the First Amendment: A Play in Three Acts” (1981) 34:2 Vand L Rev 265.

65. Ibid at 281.

66. On incitement to genocide, see, e.g., Susan Benesch, “Vile Crime or Inalienable Right: Defining Incitement to Genocide” (2008) 48:3 Va J Intl L 485; Lynne Tirrell, “Genocidal Language Games” in Ishani Maitra & Mary Kate McGowan, eds, Speech & Harm: Controversies over Free Speech (Oxford: Oxford University Press, 2012) 174. On dual-use research, see, e.g., Nicholas G Evans, “Dual-use Decision Making: Relational and Positional Issues” (2014) 32:3 Monash Bioethics Review 268.

67. Charles W Collier, “Hate Speech and the Mind-body Problem: a Critique of Postmodern Censorship Theory” (2001) 7:2 Leg Theory 203 at 233.

68. Martin H Redish, Freedom of Expression: A Critical Analysis (Charlottesville: Michie, 1984) at 5.

69. For persuasive critiques of the notion hinted at in these remarks, i.e., that Speech is of its nature harmless or inherently less harmful that bona fide conduct (also sometimes called the ‘sticks and stones’ view of Speech), see Frederick Schauer, “The Phenomenology of Speech and Harm” (1993) 103:4 Ethics 635; Susan J Brison, “Speech, Harm, and the Mind-body Problem in First Amendment Jurisprudence” (1998) 4:1 Leg Theory 39.

70. Phrases like this crop up frequently in articles on the boundaries of free speech; this phrase comes from David Archard, “Insults, Free Speech, and Offensiveness” (2014) 31:2 Journal of Applied Philosophy 127 at 139 [emphasis added].

71. Thomas I Emerson, The System of Freedom of Expression (New York: Random House Trade, 1970) at 18.

72. Baker, supra note 16 at 70, 71.

73. John Hart Ely, “Flag Desecration: a Case Study in the Roles of Categorization and Balancing in First Amendment Analysis” (1975) 88:7 Harv Law Rev 1482 at 1495.

74. Schauer, supra note 4 at 1306.

75. See Thomas Scanlon, “A Theory of Freedom of Expression” (1972) 1:2 Philosophy & Public Affairs 204; Dworkin, supra note 15; Husak, supra note 4; David A Strauss, “Persuasion, Autonomy, and Freedom of Expression” (1991) 91:2 Colum L Rev 334; Thomas Nagel, “Personal Rights and Public Space” (1995) 24:2 Philosophy & Public Affairs 83; Evan Simpson, “Responsibilities for Hateful Speech” (2006) 12:2 Leg Theory 157.

76. See Lawrence, supra note 24; Larry Alexander, “Incitement and Freedom of Speech” in David Kretzmer & Francine Kershman Hazan, eds, Freedom of Speech and Incitement Against Democracy (London: Kluwer Law International, 2000) 101.

77. As in passages like this: “Marx and even Bentham have probably nurtured more acts of terrorism than all the soapbox firebrands put together …. Does that mean that [governments] should ban Marxist and consequentialist philosophy or impose a religious orthodoxy on its citizens? To ask that question is to answer it, for any country that pursues security through such repression is … unworthy of salvaging”; Alexander, supra note 76 at 118.

78. Scanlon, supra note 75 at 208.

79. Schauer, supra note 64 at 277.

80. For instance, among the three kinds of fundamental interests which, on Cohen’s view, are secured by a system of expressive liberty, one of them (‘informational interests’) roughly corresponds with the values adverted to in Epistemic Arguments, and another of them (‘expressive interests’) corresponds very closely with the values adverted to in Expressive Arguments. But the third kind of fundamental interests (‘deliberative interests’), implicates values that, on my taxonomy, are adverted to by two different kinds of arguments, namely, Democratic and Worldview Arguments; see Cohen, supra note 13 at 223-29.

81. Another issue with this approach is that it may turn out, on close inspection, that the different Arguments have culturally specific boundaries and culturally specific applications which cannot be adequately captured at the level of abstract argument and principle; on this point see Koppelman, supra note 42 at 700.

82. To see that something like Protest is not merely a relabeled version of our original Speech category, we need only note how dissimilar to ‘speech’ much of what merits protection qua Protest is. Setting fire to an object—a flag, an effigy, or a bra—can all be acts of protest. Conspicuous and defiant silence—that is literal silence: refusing to speak when called upon to do so—can function as protest under certain circumstances; see Louis Michael Seidman, Silence and Freedom (Stanford: Stanford University Press, 2007). All of these acts should be accorded special protection against coercive government interference. But this is not because they are ‘Speech’. Rather, it’s because they are instances of a type of activity, Protest, which may or may not be performed via the use of linguistic tokens, but which, so the Democratic Arguments indicate, we have good reasons to specially immunize against government restriction irrespective of their linguistic or non-linguistic character.

83. Cohen, supra note 13 at 233.

84. A different strategy for trying to mitigate the perils of the Unhappy Facts would be to focus on constraining government’s power to enact legislation of any kind—regardless of whether it suppresses Speech—if and when that legislation’s purpose is the suppression of disapproved viewpoints; see Eric Barendt, Freedom of Speech, 2nd ed (Oxford: Oxford University Press, 2005) at 78-83. But this doesn’t obviate the need to specify the acts for which special communicative liberties apply, since there will still be a range of cases in which, even if the government’s overt purpose isn’t to suppress a particular viewpoint, its actions will nevertheless have that effect, and where we thus need to decide whether what’s being suppressed falls under a principle of communicative liberty, such that the government action has to satisfy a more stringent justificatory standard.

85. Greenawalt, supra note 43 at 41.

86. Geoffrey R Stone, Perilous Times: Free Speech in Wartime; From the Sedition Act of 1798 to the War on Terrorism (New York: WW Norton & Company, 2004).

87. This isn’t to say that liberals should just give up on trying to constrain tyranny, but rather to stress that de jure legal safeguards ultimately can’t achieve this alone. As Stone says, to resist a slide towards tyranny during a crisis “a nation needs not only legal protection of civil liberties but a culture of civil liberties … an environment in which citizens are more informed, open-minded, skeptical, critical of their political leaders, tolerant of dissent, and protective of the freedom of all individuals”. Ibid at 537.

88. See Rae Langton, “Speech Acts and Unspeakable Acts” (1993) 22:4 Philosophy & Public Affairs 293; Rae Langton & Caroline West, “Scorekeeping in a Pornographic Language Game” (1999) 77:3 Australasian J Phil 303; Ishani Maitra, “Silencing Speech” (2009) 39:2 Can J Phil 309. The claims from MacKinnon appear at a number of points in her work, including supra note 63. Arguments to similar effect have also been made by critical race theorists defending the regulation of racist hate speech, e.g., Charles R Lawrence, “Crossburning and the Sound of Silence: Antisubordination Theory and the First Amendment” (1992) 37:4 Vill L Rev 787. However, the speech-act-theoretic framework that’s integral in recent feminist philosophy on this issue hasn’t been widely used in critical race theory in this area.

89. Under this analysis, free speech is understood as giving us positive reasons to restrict some kinds of communication, so as to enable or disinhibit other kinds of communication. Outside of the anti-pornography literature, this approach to free speech has been defended by mainstream theorists of constitutional law; see, e.g., Owen M Fiss, The Irony of Free Speech (Cambridge: Harvard University Press, 1996); as well as by proponents of classical liberal political theory; see David O Brink, “Millian Principles, Freedom of Expression, and Hate Speech” (2001) 7:2 Leg Theory 119.

90. For criticism of this analysis on both fronts see Daniel Jacobson, “Freedom of Speech Acts?” (1995) 24:1 Philosophy & Public Affairs 64; Leslie Green, “Pornographizing, Subordinating, and Silencing” in Robert C Post, ed, Censorship and Silencing: Practices of Cultural Regulation (Los Angeles: Getty Research Institute for the History of Art and the Humanities, 1998) 285.

91. These definitions are borrowed from Simmons, whose definitions are based in turn on Rawls’s (1971) original distinction between ideal and non-ideal theory; see A John Simmons, “Ideal and Nonideal Theory” (2010) 38:1 Philosophy & Public Affairs 5; John Rawls, A Theory of Justice (Cambridge: Belknap Press, 1971). There is another kind of idealizing methodological maneuver, which Rawls and some of his followers favor, which consists in positing principles of justice under the assumption that the agents governed by those principles will all fully accept and fully abide by them, i.e., the assumption of ‘strict compliance’. When I speak of ideal theory here I’m not meaning to refer to this kind of ‘strict compliance’ method.

92. Seana Valentine Shiffrin, “Methodology in Free Speech Theory” (2011) 97:3 Va L Rev 549 at 550. Instead of positing ethical bases independent of First Amendment doctrine, to try to improve or clarify that doctrine, it’s at least as common an approach, among American legal theorists, to seek to discern the core values operative within First Amendment doctrine. On this issue I favor the position that has its roots in Meiklejohn, supra note 15, on which the ideal of participatory democracy—roughly: the opportunity to participate in collective self-government—functions as the First Amendment’s normative core; I favor this position because I agree with Weinstein that, if any ideal can be ascribed a central position in this jurisprudential tradition, participatory democracy “is the only contender that the case law does not massively contradict”; James Weinstein, “Participatory Democracy as the Basis of American Free Speech Doctrine: a Reply” (2011) 97:3 Va L Rev 633 at 643. But it is consistent with this to think that a broader set of ethical ideals ought to ground free speech policy, and that the First Amendment isn’t structurally conducive to implementing policies that answer to a broader set of ideals.

93. Schauer has spoken of a “multi-valued theory” which treats “the free speech and free press clauses of the First Amendment as the umbrella under which are located a number of more or less distinct separate principles, each with its own justification, each directed towards a separate group of problems”; we might, he says “have several First Amendments”; Schauer, supra note 4 at 1303. Horwitz’s discussion of a multifaceted, institution-oriented approach to the First Amendment examines how something like this might be achievable within the institutional constraints of First American doctrine; see Paul Horwitz, First Amendment Institutions (Cambridge: Harvard University Press, 2013). Although there would be plenty of complications and difficulties in practice, subdividing free speech within a First Amendment framework may still be possible.

94. See Jeffrey Goldsworthy, “Introduction” in Tom Campbell, Jeffrey Goldsworthy, & Adrienne Stone, eds, Protecting Rights Without a Bill of Rights: Institutional Performance and Reform in Australia (Aldershot: Ashgate, 2006) 1.

95. See The Conservative Party Manifesto 2015 at 60, online: https://www.conservatives.com/manifesto.