Free Speech and Speaker's Intent

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A few years ago, in an exchange with Cass Sunstein and Frederick Schauer, I criticized efforts to distinguish "high value" and "low value" speech, as the Supreme Court, Sunstein, and others have urged from time to time.(1) Any particular "unit" of speech, however such a unit is individuated, may convey an indefinite number of ideas to its audience. The ideas conveyed vary depending upon what the unit of speech is taken to be, the context into which it is placed, and the audience to which it is presented. Some ideas may seem more valuable than others--because we think some are true and important, while others are either false or banal--but we cannot locate the ideas that audiences derive from speech in the speech itself. We cannot ban "low value" ideas by banning, say, "low value" movies because audiences may derive low value ideas from high value movies and vice versa. A medical textbook may be neglected by physicians but eagerly sought by those who are sexually aroused by its pictures of sexual organs; a book of "pornographic" photographs may be profitably studied by psychologists and sociologists in whom it produces no sexual arousal whatsoever. The ideas that speech evokes are not locatable in the symbols employed.(2)

In the same exchange, I also argued against locating the "value" of speech in the intentions of its authors.(3) My reason was similar to my reason against locating value in the speech itself. Whatever the author intends to communicate by her speech, it is always possible and indeed highly likely that the ideas the audience receives will be different. Das Kapital may be a "high value" work for most of its audience even if Karl Marx meant it as a joke, or even if it was the product of the proverbial thousand monkeys on typewriters. Pornography intended by its author only for the audience's arousal and the author's profit may turn out to be highly useful in sociological and psychological studies, just as a medical textbook may end up being read mostly by voyeurs in search of "dirty pictures." (Popular culture in particular is a rich mine of works intended as "high brow" that end up as "low brow" entertainment and works intended as entertainment that end up being subjects of serious debate and discussion.)

I concluded that for purposes of first amendment jurisprudence, the principal focus should not be on the value inhering in some tangible item of speech or the communicative intentions of authors. Instead, the focus should be on the government's reasons for regulating.(4) If the government regulates because it wishes to prevent an audience from considering certain ideas, either as an end in itself or, much more likely, as a means to some further end, then the First Amendment is in play. If the government's reason for regulating is not to prevent an audience from considering certain ideas, the First Amendment is probably not in play (or at least the jurisprudence shifts to the less stringent time, place, and manner analysis). The government's aim to suppress ideas is both sufficient and necessary for invoking standard first amendment jurisprudence. Once the First Amendment is in play, however, the value of the targeted idea may be relevant (if the idea were a false factual proposition, for example, or revealed private, embarrassing facts).(5) Additionally, the way in which the possession of the idea leads to harm will be relevant and often determinative.(6)

In a recent article, Sunstein appears to agree with me that the locus of the value of speech is not any particular tangible item.(7) He rightly points out that all speech is "symbolic conduct," and that any conduct can be used to symbolize ideas.(8) Thus, it would be wrong to locate pornography's "low value" in the tangible work itself rather than in the message the author was intending to communicate and the audience was receiving.

Sunstein, however, ignores the remainder of my analysis and makes the author's intentions central to first amendment analysis. …