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Posted May 23, 2014

First Amendment Scholar Leslie Kendrick Wins UVA Law's McFarland Prize

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Professor Leslie Kendrick

Professor Leslie Kendrick teaches torts, property and constitutional law, particularly First Amendment law.

University of Virginia School of Law professor Leslie Kendrick, an expert on freedom of expression, has received the Law School's Carl McFarland Prize, which is awarded to a junior faculty member for outstanding research.

Contact: Mary Wood

"I was really surprised, and delighted and honored," Kendrick said. "I hope to continue to do good work in the future to be worthy of the award."

A 2006 graduate of UVA Law, Kendrick joined the faculty in 2008 after clerking for Judge J. Harvie Wilkinson III of the 4th U.S. Circuit Court of Appeals and U.S. Supreme Court Justice David Hackett Souter. She holds a master's and doctorate in English literature from the University of Oxford, where she studied as a Rhodes Scholar. At UVA she teaches courses in torts, property and constitutional law, particularly First Amendment law.

"Leslie's attractive combination of intellectual rigor and judgment has enabled her to shed new light on First Amendment analysis," said Dean Paul G. Mahoney.

Kendrick said her scholarship aims to understand the big questions about why we have freedom of speech, and whether it's "really something distinct from a larger freedom of activity."

"Sometimes in our culture, people slide right from 'I have a right to say what I want to say' to 'I have a right to do what I want to do,'" she said. "Is there really something different about the right to 'say what I want to say'?"

Those are questions that scholars like UVA law professor Fred Schauer have posed, she said, and still need to be answered.

"I can't work in this field without figuring out what I think about them," she said. "I'm gradually making my way down to the bottom of these questions. I hope I say interesting things along the way. "

In "Speech, Intent and the Chilling Effect," published in the William & Mary Law Review last year, Kendrick explored the puzzle of why First Amendment doctrine imposed tests about the state of mind of the speaker.

Why Is Freedom of Speech Hard to Define?

For many, the recent decision by the European Court of Justice asking Google to wipe out sensitive information from search results due to a "right to be forgotten" was a reminder that the U.S. ascribes special value to freedom of speech.

"We kind of take for granted that speech is a right that trumps lots and lots of different types of interests, and it's not obvious that it has to be that way," Kendrick said. "Because there are so many ways communication figures into our world, figuring out what part of that communication is even covered by freedom of speech in the first place is really important."

Part of the confusion behind the freedom of speech is due to a lack of historical understanding of what the phrase meant when the Constitution was drafted, Kendrick explained. But even if an originalist interpretation were possible or wise, types of speech have proliferated since the 18th century, from video games to political ads on TV. Its meaning has also shifted over time through Supreme Court decisions that sometimes sow confusion as much as clarity, she said.

While the court can't give a systematic account of what freedom of speech is, she said, academics can try.

"You're just out in open water a little bit, trying to figure out what that phrase means," Kendrick said. "There's no way to figure out what it means that doesn't involve asking what value it serves — is it about fostering democratic self-government, is about fostering a search for truth, is it about autonomy? It has to be freedom in service of some larger value."

"Some people argue that state of mind doesn't matter in and of itself," she said. "The reason we impose an intent requirement is to prevent chilling good speech — non-harmful speech. So if you impose liability for all false statements, then people who don't know whether their statement is true or false are not going to say anything — they're going to err on the side of caution. "

But it's difficult to measure how much protection proving intent offers against a chilling effect, since you can't measure speech that doesn't happen. 

The chilling effect "is not a very fine-grained tool," she concluded. "If we think intuitively a particular state of mind is necessary before someone can be punished for their speech, it seems unlikely that the chilling effect is the source of that intuition. It's probably coming from somewhere else."

Her forthcoming paper in the Columbia Law Review, "Free Speech and Guilty Minds," tackles that question by dissecting whether freedom of speech should depend on the state of mind of the speaker.

"A false statement that defames somebody is harmful regardless of whether the speaker knew it was harmful, so it seems like maybe that shouldn't have anything to do with it, but in a lot of different cases, free speech law does take account of the speaker's state of mind," she said. "So I'm trying to figure out if there's a good reason for that."

Consider a scenario where a speaker walks into a crowd wearing a T-shirt with a sports logo that is also a gang sign. The speaker may not know he is making an incendiary statement.

"Can the government in any way hold him liable for incitement if the crowd got angry?" she said. "Intuitively we think it does matter in some cases. I argue that there are good reasons for it to matter if we take a viewpoint that free speech is partly about autonomy – partly about giving people opportunities to form their thoughts and beliefs and to express those thoughts and beliefs, so that we should actually care.

"It doesn't seem, on the face of things maybe, that we should care about intentions, but we do care about them, and there's a good reason for us to care about them."

Kendrick is working on two more papers that promise to further define the fundamental nature of free speech. In one, she will examine to what extent speech has to be special in order to consider freedom of speech as a freestanding right.

"What are the criteria for a successful theory of speech?" she said. "[The paper is] not necessarily trying to develop a theory of freedom of speech, but just how would we know one when we saw one."

Her second article addresses the relationship between speech regulation and economic regulation, a topic she discussed in a recent speech at the Law School.

"This is one of those areas where there's just lots of litigation, and a lot of free speech claims being made and being decided by courts without a whole lot of thought being given to, well, what are we doing here, what is this about?" she said. "I think it threatens to collide with other areas of jurisprudence, so I think it's worth trying to get it worked out a little bit."