Use Your Words: On the “Speech” in “Freedom of Speech”
Michigan Law Review
UVA Law Faculty Affiliations
Freedom of speech occupies a special place in American society. But what counts as “speech” is a contentious issue. In countless cases, courts struggle to distinguish highly protected speech from easily regulated economic activity. Skeptics view this struggle as evidence that speech is, in fact, not distinguishable from other forms of activity.
This paper refutes that view. It argues that speech is indeed distinct from other forms of activity, and that even accounts that deny this actually admit it. It then argues that the features that make speech distinctive as a phenomenon also make it distinctive as a normative matter. This does not mean that the skeptics are all wrong. It does, however, mean that they are wrong that freedom of speech is conceptually impossible. Speech is special in a way that makes it a plausible basis for a right of freedom of speech.
Leslie Kendrick, Use Your Words: On the “Speech” in “Freedom of Speech”, 116 Michigan Law Review 667-704 (2018).