Academic journal article Harvard Law Review

Rehabilitating the Performative

Academic journal article Harvard Law Review

Rehabilitating the Performative

Article excerpt

  All beings in Flatland, animate or inanimate, no matter what their
  form, present to our view the same, or nearly the same, appearance,
  viz. that of a straight Line. How then can one be distinguished from
  another, where all appear the same?
  --Edwin A. Abbott (1)


The First Amendment's Free Speech Clause is in need of an analytical framework. Justice White once wrote: "Each method of communicating ideas is 'a law unto itself' and that law must reflect the 'differing natures, values, abuses and dangers' of each method." (2) And most (in)famously, Justice Stewart's attempt to define the category of pornography too obscene to fit within the coverage of the First Amendment was simply: "I know it when I see it." (3) In the area of free speech, the feeling of groping for answers in the methodological darkness is inescapable.

Yet theoretical consensus is not forthcoming. The difficulty of defining the scope of the First Amendment's Free Speech Clause has spawned myriad theories that seek to explain the values undergirding free speech. For example, truth discovery theories maintain that speech should be protected if it furthers the recognition of truth. (4) Dissent theories emphasize the social value of encouraging rather than restricting dissent. (5) Democratic deliberation theories highlight the importance of open deliberation to self-government. (6) Autonomy theories contend that the First Amendment should guarantee listeners the autonomy to decide what to Believe (7) or that the First Amendment should ensure speakers the right to manifest their autonomy through expression. (8) But no existing theory of free speech fully explains the Supreme Court's First Amendment jurisprudence. (9) Truth discovery theories might have trouble explaining the coverage of art and literature; democratic deliberation theories might be unable to explain the protection of pornography; and speaker-based autonomy theories might struggle to explain the protection of commercial speech, noncommercial corporate speech, and harmful speech. (10) Furthermore, while some scholars believe that a single principle explains the First Amendment, (11) others doubt that such an exclusive principle is possible. (12)

What the First Amendment needs is a framework that does for free speech what the tripartite scheme in Justice Jackson's Steel Seizure (13) concurrence did for executive action--namely, to make clear what questions can be answered even while the answers to other questions remain uncertain. To that end, this Note builds upon a framework proposed by Professor Kent Greenawalt in Speech, Crime, and the Uses of Language that categorizes speech according to its communicative value. This Note modifies Professor Greenawalt's framework in order to make it more pluralist--that is, agnostic toward the substantive principle(s) that might underlie the First Amendment--by employing the approach of "defining out" rather than "defining in." Further, to make the framework effective, this Note attempts to remedy the blurring of categories that occurs in Professor Greenawalt's work and those of earlier proponents of expression-conduct theories. Finally, this Note explains why a substantive theory that rejects any distinction between expression and conduct would be undesirable. Throughout, the goal of the analysis is to make clear what questions can be answered without reference to substantive principles of free speech.


A. Coverage Versus Protection

As a preliminary matter, it is important to make clear the distinction between "coverage" and "protection" in the context of constitutional rights and the First Amendment in particular. Determining the scope of a constitutional rule requires a two-step analysis that asks whether the conduct at issue is covered by the rule and, if so, whether the conduct is protected. A situation is covered by a constitutional rule if the situation is of the sort that mandates application of the tests that the rule requires. …

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