At the heart of the First Amendment guarantee of freedom of speech, and at the center of the United States Supreme Court's opinions safeguarding that freedom, lie two "simple" yet deeply complicated and often paradoxical questions: what meaning should be given a message; and from what perspective - the speaker's, the text's, or the audience's - should the question of meaning be addressed? Judging a communication's meaning is a subtle task involving various interpretative methodologies, for the message intended by a speaker often varies from the text or the audience's perception.
At common law, for example, a speaker was responsible for a statement that was understood to imply marital infidelity even though the speaker had no such implication in mind and the text conveyed no such assertion. Thus in the classic case of Morrison v. Ritchie & Co. a newspaper was held liable for publishing a story that the plaintiff, whom some readers knew had been married for only a month, had given birth to twins.(1) In such cases the common law placed a message's meaning in the hands of the audience, as judged by the jury. The Supreme Court has held that the First Amendment is not violated by such a rule of interpretation.(2)
Liability frequently rests upon the meaning of a communication. Thus, as a matter of First Amendment law the assignment of meaning is a central question in free speech cases, and the Supreme Court is inexorably drawn into deciding how meaning is to be ascertained and what the precise meaning of a disputed communication is. The Court cannot escape becoming engaged in a complex interpretive enterprise based on intent, textual analysis, and audience understanding and reaction. The quality of a Monet, for example, cannot be judged without engaging in all of these interpretive methodologies. Even after doing so, of course, the resulting qualitative judgment may remain deeply personal and idiosyncratic to the person doing the interpreting. So it is, also, with speech.
But judgments about the meaning of speech in the legal system, where criminal or civil consequences ensue for the speaker, must by necessity reject any universal rule that all meaning is idiosyncratic. Such a rule would disable the legal system from regulating conduct that occurs through the act of speaking, whether that conduct be extortion, perjury, defamation, fraud, or harassment. The Supreme Court does not have the art critic's luxury of offering a judgment without consequence. The Court must instead draw a series of lines: the first between those communications whose meaning should be treated as idiosyncratic (and thus subject to no general legal consequences) and those that should not; the second between those communications in the latter group whose meaning can be assigned (in whole or part) through application of general rules of interpretation (the speaker's intent prevails, for example, or the words or images in the text itself, or the audience's perception), and those whose meaning is judged on a case by case basis; and a third among categories of speech to which one or another general interpretive rule applies. A few examples will illustrate the varying approaches the Court has taken to the assignment of meaning to communications.
A. Idiosyncratic Meaning
In the field of the creative arts, literature, and creative writing the Supreme Court has often adopted the position that meaning is not a question for courts, but is instead an idiosyncratic matter best left to the individual and freed from legal consequences.(3) As Justice Scalia recently put it, "It is quite impossible to come to an objective assessment of (at least) literary or artistic value, there being many accomplished people who have found literature in Dada, and art in the replication of a soup can."(4) Thus the meaning conveyed by a poem or a song is a question usually greeted by judicial silence: it is not taken as a given, or assumed, but is …