Are Speech Rights for Speakers?
Virginia Law Review
UVA Law Faculty Affiliations
Though it may sound surprising, there is a great deal of debate about whether speakers have free speech rights. Those who deny it say that the freedom of speech protects listeners, not speakers. Lately, these skeptics can point for support to First Amendment case law, which is expanding in ways that draw speakers’ rights into question. When search engines, internet service providers, food producers, and so on are claiming immunity to regulation because they are speakers, the time has come to reevaluate speakers’ rights.
This piece does just that. It confronts hard questions about whether speakers have rights, including arguments that it is illogical for speakers to have rights. It shows that this is not the case. In fact, under the most plausible views of freedom of speech, speakers must have free speech rights.
Nevertheless, recognizing speakers’ rights is often inconvenient and difficult. Above all else, recognizing speakers’ rights has tended to distract from listeners’ rights, to less than salutary effect. These problems are real. But rights by definition complicate matters. The fact that they do so is not a reason to reject them.
Leslie Kendrick, Are Speech Rights for Speakers?, 103 Virginia Law Review 1767-1808 (2017).