Use Your Words: On the "Speech" in "Freedom of Speech"

By Kendrick, Leslie | Michigan Law Review, March 2018 | Go to article overview

Use Your Words: On the "Speech" in "Freedom of Speech"


Kendrick, Leslie, Michigan Law Review


INTRODUCTION

"Freedom of speech" is clearly important in American society. But what is it? Is free speech implicated when a bakery denies service to a same-sex couple shopping for a wedding cake?1 Is it implicated when a town applies a zoning ordinance to a tattoo parlor?2 Is it implicated when internet service providers would rather not follow net neutrality rules?3 The fact that many litigants, and sometimes courts, think these cases involve the freedom of speech4 is a sign that the law requires a better definition of what, exactly, free speech is.

Most people presented with the question would say that free speech has something to do with activities that we colloquially call speaking, and that these activities are important in some way. But when serving a cake is speech, and tattooing is speech, and providing internet access is speech, we might wonder whether we have strayed rather far both from the notion of "speech" as a phenomenon and from whatever it is that might make "freedom of speech" important as a legal, political, or moral right.

This matters. From a moral or political standpoint, if freedom of speech is a basic human right, we ought to be able to articulate when it is implicated and when it is not. And if every activity implicates it, we ought to suspect that something has gone wrong.

From a legal standpoint, the First Amendment's function is to block the operation of otherwise valid laws. Invalidating civil rights laws, zoning ordinances, and net neutrality rules on free speech grounds is, in a word, undemocratic.5 Courts enforcing the First Amendment should do so based on more than some vague sense that the activity in question is "speech" and that "speech" is in some vague way important.

But the problem seems to be growing. Litigants who can in any way characterize their activity as "speech" seek the protection of the First Amendment.6 In an information economy, the number of litigants who can plausibly make such claims is on the rise.7 The further this expansion goes, the more the First Amendment resembles a general right to be free from regulation, akin to the economic due process and related claims successfully leveraged by businesses in the Lochner era.8 With the variety of activities now denoted "speech," we find ourselves back inside the bakery of Lochner v. New York, only this time we are arguing over whether the baker has a First Amendment right to be immune from labor9 and civil rights laws.10 If speech is different from other forms of activity, then that difference would be useful in distinguishing what is a free speech claim from what is not.

For a long time, skeptics have challenged our society's reflexive commitment to free speech.11 The skeptics point out that our treatment of free speech-as a matter of both constitutional law and moral- or political-rights discourse-suggests that free speech deserves to be singled out from other activities for special discussion. The skeptics challenge this view by arguing that speech is not different from other activities in any conceptually important way.12 Because speech is not different from other activities, it should not be treated differently from them. As a normative matter, there should not really be "free speech" rights. What we mistakenly call a free speech right is either part of some larger right or nothing but the operation of the background principles that ought to apply to all regulation of all activity. These challenges by skeptics-and the increasingly far-fetched definitions of "speech" employed by litigants-put pressure on those who assume speech is special and different.

As deeply held as the American commitment to free speech is, it is often equally underdeveloped. If one really wants to answer the skeptics-and to address the expansion of the First Amendment to tattoo parlors and bakeries-one must start again from the very beginning and ask: Is speech different from other activities?

This Article does just that. …

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