Nonsense and the Freedom of Speech: What Meaning Means for the First Amendment
Blocher, Joseph, Duke Law Journal
II. THE MEANING OF MEANING FOR THE FIRST AMENDMENT
The discussion up until this point has described an important but underexplored category of speech--nonsense--and made a preliminary case for its constitutional protection. In the process, it has flanked another target: the very concept of meaning itself. This is dangerous quarry, particularly when wounded by the apparent threat to its claim on the First Amendment's territory. With due concern for the hazards, though, it is difficult to imagine a better way to consider meaning than by, as the preceding discussion has, exploring its absence. The goal of this Part is to use that analysis to confront the meaning of "meaning" for First Amendment purposes.
It would be easier, perhaps, to avoid the issue by simply saying that meaning does not matter for the First Amendment. But a wide range of doctrine and scholarship suggests that the easy road is foreclosed, and that meaning--generally equated with ideas, viewpoints, or content--is a necessary ingredient of constitutionally salient speech. As Professor John Greenman notes, "Frequently, behavior is said to be covered by the First Amendment if it conveys 'ideas' or 'information.'" (170) This meaning-dependent approach is embedded in constitutional doctrine in various ways, and has been buttressed by thoughtful scholarship. Peter Tiersma, for example, proposes that "the first requirement for communication by conduct is that the conduct be meaningful, most often as a matter of convention. This is simply an extension of a basic principle of language: a speaker normally cannot use sounds to communicate unless the sounds have some meaning attached to them." (171) Likewise, Melville Nimmer's influential account of symbolic speech holds that "symbolic speech requires not merely that given conduct results in a meaning effect, but that the actor causing such conduct must intend such a meaning effect by his conduct." (172)
But the meaning-dependent approach also raises difficult problems, for the reasons suggested in Part I: nonsense is pervasive, and much of it has a strong relationship to the First Amendment's core values. Moreover, despite their apparent insistence on the importance of meaning, courts and scholars have done very little to establish what meaning means. (173) That imprecision, in turn, provides space to craft a doctrinal and theoretical apparatus that allows meaning to play a central role in First Amendment discourse without completely denying constitutional coverage to nonsense. This is no easy task, however, for the necessary tools are scarce and scattered throughout the First Amendment's messy workshop.
Fortunately, craftsmen in adjacent workshops can provide useful guidance. The relationship between meaning and language has been the central obsession of analytic philosophy for the better part of a century. Of course, analytic philosophers are primarily concerned with determining what can meaningfully be said, not what kinds of speech are or should be protected from government sanction. But with regard to the specific issue of meaning, their hard-won advances are directly relevant to the questions that constitutional law has set for itself. Moreover, as the following discussion shows, echoes of their efforts can already be heard in First Amendment discourse.
Two major schools of thought have emerged, which, with regrettably necessary simplification, can be called the "representational" and "use" approaches to meaning. The former, associated with Wittgenstein in his early writings, Bertrand Russell, and logical positivism, finds meaning in the connection between language and extralinguistic concepts. (174) Language that fails to represent such concepts is nonsensical. Some First Amendment discourse implicitly utilizes such an approach. The authorities cited above, for example, generally employ a more-or-less representational approach to meaning by searching for "ideas" (175) or "content. …