This paper argues that racist speech in public places ought to be regulable even with teh strict free speech protections of the First Amendment. McGowan argues that the same justification for regulating the hanging of a 'Whites Only' sign applies to racist utterances in public spaces.

In free speech theory ‘speech’ has to be defined as a special term of art. I argue that much free speech discourse comes with a tacit commitment to a ‘Subtractive Approach’ to defining speech. As an initial default, all communicative acts are assumed to qualify as speech, before exceptions are made to ‘subtract’ those acts that don’t warrant the special legal protections owed to ‘speech’. I examine how different versions of the Subtractive (...) Approach operate, and criticise them in terms of their ability to yield a substantive definition of speech which covers all and only those forms of communicative action that – so our arguments for free speech indicate – really do merit special legal protection. In exploring alternative definitional approaches, I argue that what ultimately compromises definitional adequacy in this arena is a theoretical commitment to the significance of a single unified class of privileged communicative acts. I then propose an approach to free speech theory that eschews this theoretical commitment. (shrink)

We are still searching for an adequate theory of the first amendment freedom of speech. Despite a plethora of judicial opinions and scholarly articles, there are fundamental conflicts over the meaning of the words "Congress shall make no law... abridging the freedom of speech." This Article examines the possibility that recent developments in social theory can aid our understanding of the freedom of speech. My thesis is that Jiirgen Habermas' theory of communicative action can serve as (...) the basis for an interpretation of the first amendment that fits the general contours of existing first amendment doctrine and provides a coherent justification for the freedom of speech. Habermas' theory takes as its point of departure the speech act theory developed through contemporary analytic philosophy and linguistics. The central theme of speech act theory is that speech is action; communication coordinates individual behavior through achieving rational understanding. An important corollary is the proposition that communication is intersubjective; speech acts involve both speakers and listeners. In addition, the theory of communicative action makes a distinction between communicative action-oriented to the coordination of behavior through rational agreement-and strategic behavior-the use of speech to manipulate, coerce, or deceive. I argue that a theory of free speech can incorporate this distinction to mark the boundaries of the right to free speech: freedom of speech is freedom to engage in communicative action, not strategic action. Another component of Habermas' theory is the ideal speech situation, in which rational agreement may be reached because distorting factors are excluded; this ideal situation serves as the basis of a principle of equality of communicative opportunity that can give the freedom of speech its fundamental content. Habermas' theory of communicative action provides the basis for my reinterpretation of the first amendment freedom of speech as the freedom of communicative action. This Article has two aims. My first aim is to develop a theory of the meaning of the first amendment from the theory of communicative action. In pursuit of this first goal, the Article assumes a perspective that is internal to the practice of American constitutional law. I argue that Habermas' theory has substantial power to explain and justify first amendment doctrine. Indeed, it is my view that a theory of freedom of speech based on the theory of communicative action, more so than any other theory, provides the best justification for the first amendment while simultaneously providing the best fit with the existing case law. In addition to the development of a theory of the first amendment, this Article has a second aim: From the point of view of the practice of social theory, the current Article is a "thought experiment" designed to test and elaborate Habermas' theory of communicative action. I explore various objections to and ambiguities in the theory of communicative action by taking up the attitude of a participant in the practice of legal interpretation who adopts the theory of communicative action as a practical principle for institutionalization of discourse in the public sphere. It is my hope that this thought experiment will have value in the enterprise of understanding, clarifying, and extending the theory of communicative action. For example, this Article responds to the suggestion that the theory of communicative action should be reformulated as a theory of institutionalized discourse "in the public sphere of a participatory democracy." Part II of this Article begins with a hermeneutic approach to the problem of interpreting the first amendment. Part III explores and criticizes existing theories of the freedom of expression. The theory of communicative action is explicated in Part IV; the implications of that theory for the freedom of speech are explored in Part V. Finally, Part VI applies the results to specific problems in first amendment doctrine, and Part VII draws some conclusions about the implications of this exercise for both first amendment doctrine and the theory of communicative action. (shrink)

This volume seeks to explain how American society, which had been capable of noble aspirations such as those in the Declaration of Independence and the Constitution, was capable of adopting one of the most widely deplored statutes of our history, the Sedition Act of 1798. It examines how the political ideals of the American Revolution were undermined by the adoption of repressive doctrines of the English monarchial system - the criminalization of criticism against the king, the Parliament, the judiciary, and (...) Christianity. Freedom of speech was dramatically confined, and this law remained unchallenged until well into the twentieth century. This book will be of keen interest to all concerned with the early Republic, freedom of speech, and evolution of American constitutional jurisprudence. Because it addresses the much-criticized Sedition Act of 1798, one of the most dramatic illustrations of this repressive jurisprudence, the book will also be of interest to Americans concerned about preserving free speech in wartime. (shrink)

The Racial and Religious Hatred Act 2006 represents a significant development in UK law. It extends the offence of incitement to racial hatred set out in the Public Order Act 1986 to make it also an offence to stir up hatred against persons on religious grounds. As the most celebrated liberal thinker of the nineteenth century, J.S. Mill might be expected to offer some lessons about the possible dangers of this sort of legislation. A Millian response to the 2006 Act (...) is developed here by first applying Mill’s famous defence of free speech to the Lords amendments to the Racial and Religious Hatred Bill 2005 and then by looking at potential cases in which even freedom of expression loses its immunity when this is necessary to prevent harm to others. Three versions of the harm‐prevention justification for liberty‐limiting restrictions are assessed and it is argued that the most promising version is the claim that it may be permissible to punish incitement to racial and religious hatred not so much because it is itself a kind of harm but by virtue of the acts of discrimination, violence and injustice that are more likely to occur within a climate of hatred. Ultimately, however, this rationale must be weighed against what is, for Mill, the special value of free speech and may in the end justify intervention in only the most acute cases. (shrink)

On Pragmatics, Exercitive Speech Acts and Pornography Suppose that a suspect being questioned by the police says, "I think I'd better talk to a lawyer." Whether that suspect has invoked her right to an attorney depends on which particular speech act her utterance is. If she is merely thinking aloud about what she ought to do, then she has not invoked that right. If, on the other hand, she has thereby requested a lawyer, she has. Similarly, suppose (...) that an unhappily married man says "I want my wife dead." Whether he has thereby solicited his wife's murder depends on which particular speech act his utterance is. If he is merely describing his desires, he has committed no crime. If, by contrast, he has thereby hired an assassin, he has. As one can see, experts on speech acts have a lot to say about various issues in the law.I believe that expertise in speech act theory also illuminates various issues regarding free speech. In what follows, we consider how speech act theory may apply to certain arguments regarding the free speech status of pornography. In particular, we consider several speech act accounts of MacKinnon's claim that pornography subordinates women, but, before turning to such accounts, some background is offered. (shrink)

“Sticks and stones will break my bones,” Justice Scalia pronounced from the bench in oral arguments in Schenck v. Pro-Choice Network, “but words can never hurt me. That's the First Amendment,” he added. Jay Alan Sekulow, the lawyer for the petitioners, anti-abortion protesters who had been enjoined from moving closer than fifteen feet away from those entering an abortion facility, was obviously pleased by this characterization of the right to free speech, replying, “That's certainly our position on (...) it, and that is exactly correct …”. (shrink)

This paper investigates whether search engines and other new modes of online communication should be covered by free speech principles. It criticizes the analogical reason-ing that contemporary American courts and scholars have used to liken search engines to newspapers, and to extend free speech coverage to them based on that likeness. There are dissimilarities between search engines and newspapers that undermine the key analogy, and also rival analogies that can be drawn which don’t recommend free (...) speech protection for search engines. Partly on these bases, we argue that an analogical approach to questions of free speech coverage is of limited use in this context. Credible verdicts about how free speech principles should apply to new modes of online com-munication require us to re-excavate the normative foundations of free speech. This method for deciding free speech coverage suggests that only a subset of search engine outputs and similar online communication should receive special protection against government regulation. (shrink)

In this article I investigate the implications of antirealism, as characterized by Richard Rorty, for First Amendment jurisprudence under the United States Constitution. It is hoped that the implications, while played out in the context of a specific tradition, will have more universal application. In Section 1, Rorty’s ‘pragmatic antirealism’ is briefly outlined. In Section 2, some effects of the elimination of the concept of truth for First Amendment jurisprudence are investigated. Section 3 argues for the conclusion that (...) given the antirealist stance, the Supreme Court’s usage of the true/ false fact distinction is actually an uncritical allowance of viewpoint-based discrimination into speech protection that has potentially far-reaching and restrictive results for important speech. Finally, in Section 4 Rorty’s antirealism is combined with various traditional models of First Amendment analysis to see how it would function. The conclusions aimed at are twofold. First, that Rortian antirealism is compatible with the traditional models underlying First Amendment theory. Second, that a realization that truth is the result of, in Rorty’s words, ‘intra-mundane’ discourse leads to an argument for different and potentially stronger and more farreaching protections to speech. (shrink)

Largely thanks to Mill’s influence, the suggestion that the state ought to restrict the distribution of misinformation will strike most philosophers as implausible. Two of Mill’s influential assumptions are particularly relevant here: first, that free speech debates should focus on moral considerations such as the harm that certain forms of expression might cause; second, that false information causes minimal harm due to the fact that human beings are psychologically well equipped to distinguish truth and falsehood. However, in (...) addition to our moral obligations, we also have a distinct set of epistemic obligations—and even when a false belief doesn’t harm anyone, it constitutes an epistemically bad outcome. Moreover, Mill was profoundly mistaken about human psychology: human beings are vulnerable to the influence of a wide variety of false claims via a wide variety of psychological mechanisms. Consequently, there is a purely epistemic justification for restricting the distribution of misinformation: because each of us has an individual epistemic obligation to avoid unnecessary exposure to misinformation, and because avoiding such exposure is simply too difficult when acting alone, we all have a shared epistemic obligation to establish laws or regulations restricting the widespread distribution of misinformation. (shrink)

More than half a century ago, the Supreme Court held that the free speech protection of the First Amendment is not limited to verbal communication, but also applies to such expressive conduct as saluting a flag or burning a flag. Even though the Supreme Court has decided a number of important cases involving expressive conduct, the Court has never announced any standards for distinguishing such conduct from conduct without communicative value. The aim of this paper is to (...) examine which conceptions of nonverbal expression underlie judicial decisions on expressive conduct, and to offer an account of expressive conduct grounded in contemporary semantic theory. The central hypothesis of this paper is that significance of expressive conduct can be explained by principles that explain important features of linguistic meaning. I propose an analysis of expressive conduct that takes the meaningfulness of conduct as a function of the action and its consequences in context. I develop a theory of expressive conduct whose underlying conception of expression is based on a number of ideas from speech act theory. These are Grice's account of nonnatural meaning, Austin's theory of illocutionary force, and Grice's work on conversational implicature. My analysis understands the meaningfulness of conduct in terms of its relational properties and relevant features of the context upon which illocutionary force, perlocutionary properties and implicature are predicated. The natural and conventional properties of types of conduct, features of the context, and underlying social and cultural presumptions and expectations about human conduct thus play a role in the constitution of symbolic speech. (shrink)

More than half a century ago, the Supreme Court held that the free speech protection of the First Amendment is not limited to verbal communication, but also applies to such expressive conduct as saluting a flag or burning a flag. Even though the Supreme Court has decided a number of important cases involving expressive conduct, the Court has never announced any standards for distinguishing such conduct from conduct without communicative value. The aim of this paper is to (...) examine which conceptions of nonverbal expression underlie judicial decisions on expressive conduct, and to offer an account of expressive conduct grounded in contemporary semantic theory. The central hypothesis of this paper is that significance of expressive conduct can be explained by principles that explain important features of linguistic meaning. I propose an analysis of expressive conduct that takes the meaningfulness of conduct as a function of the action and its consequences in context. I develop a theory of expressive conduct whose underlying conception of expression is based on a number of ideas from speech act theory. These are Grice's account of nonnatural meaning, Austin's theory of illocutionary force, and Grice's work on conversational implicature. My analysis understands the meaningfulness of conduct in terms of its relational properties and relevant features of the context upon which illocutionary force, perlocutionary properties and implicature are predicated. The natural and conventional properties of types of conduct, features of the context, and underlying social and cultural presumptions and expectations about human conduct thus play a role in the constitution of symbolic speech. (shrink)

Free speech has historically been viewed as a special and preferred democratic value in the United States, by the public as well as by the legislatures and courts. In 1937, Justice Benjamin Cardozo wrote in Palko v. Connecticut that protection of speech is a “fundamental” liberty due to America's history, political and legal, and he recognized its importance, saying, “[F]reedom of thought and speech” is “the matrix, the indispensable condition, of nearly every other form of freedom.” (...) It is likely notable that in the Bill of Rights free speech is protected in the First Amendment rather than later. (shrink)

The prevailing view among contemporary analytic philosophers seems to be that, as philosophers, we primarily issue assertions. Following certain suggestions from the work of Rudolf Carnap and Sally Haslanger, I argue that the non-assertoric speech act of stipulation plays a key role in philosophical inquiry. I give a detailed account of the pragmatic structure of stipulations and argue that they are best analyzed as generating a shared inferential entitlement for speaker and audience, a license to censure those who give (...) uptake to the stipulation but do not abide by this entitlement, and as justified on the basis of the speaker and audience's shared ends. In presenting this account, I develop a novel taxonomy for making sense of criticisms of speech act performances generally and clarify the notions of successful speech act performance and uptake. To demonstrate the fruitfulness of this view of stipulation for recasting and advancing philosophical disputes, I apply my account to two case studies – the first concerns Iris Marion Young's analysis of the concept of oppression and the second involves Saul Kripke's and Hilary Putnam's accounts of the concept of reference. (shrink)

The relationship between academic freedom and freedom of speech features prominently in public and political discussions concerning the role of universities in Western liberal democracies. Recently, these debates have attracted increased attention, owing in part to media framing of a ‘free speech crisis’, especially in UK and US universities. One type of response is to regulate academic expression through legislation, such as the UK’s 2023 Higher Education (Freedom of Speech) Act. This article offers a critical analysis (...) of the assumptions concerning the performativity of speech in this kind of legal intervention. It extends Judith Butler’s discussion of the concept of ‘harmful speech’ as reported by Butler (Excitable speech: a politics of the performative, Routledge Classics, London, 1997) to conceptualize speech-acts as performative not only when it comes to populations, but also when it comes to institutions. Reconceptualizing universities as producing as well as being constituted by speech-acts, the article argues that the effects of free speech legislation need to be considered in the context of the transformation of universities and other political actors (including governments and student unions) in the second half of the twentieth and the beginning of the twenty-first century. It argues that legal enforcement of free speech at universities further obscures the distinction between negative and positive liberties identified by Isaiah Berlin (Two Concepts of Liberty, Oxford University Press, Oxford, 1958), and considers this shift as part of the reconfiguration of political ontology in late modernity. (shrink)

The system of free expression John Milton defends in Areopagitica, a pamphlet against prior restraint in publishing, is often characterized as merely a proto-liberal, truth-based marketplace of ideas theory. But this represents a misunderstanding of Milton’s views on the freedoms of conscience, speech, and the press. The tendency in political theory, philosophy, and law to reduce the “free speech Milton” to Areopagitica, and the reduction of that essay to several soundbites, has meant sidelining both the significant (...) exceptions to expressive liberties that Milton calls for and also the role of the social in his theory. This incomplete characterization has enabled Milton’s misuse in First Amendment discourse and jurisprudence, where he is made to support hierarchical approaches to free speech that privilege public political speech and are therefore ill-equipped to address the full range of communicative experiences. More comprehensive readings of Milton, however, reveal both certain limits to free expression, and also deep consideration for a wide range of speech acts. By reading Milton’s theory of expressive liberties in light of the justifications he provides for those freedoms—i.e., virtue-building and Truth-seeking—this essay provides a fuller account of his views. What emerges is a distinctly Miltonian, virtue-driven “political theory of everyday talk” that locates value in even the most ordinary communicative acts. This theory—embracing both verbal and nonverbal expression—not only complements existing political theories of the everyday but can also help illuminate contemporary free speech concerns, many of which stem from the libertarian approach to expressive liberties that Milton helped inspire. (shrink)

The Supreme Court and lower courts have not articulated a clear or consistent framework for First Amendment analysis of speech restrictions in health care and with respect to abortion. After offering a coherent doctrine for analysis of speech restrictions in the doctor-patient relationship, this piece demonstrates how potential legislation restricting patient access to information from reproductive testing intended to limit “undesirable” reproductive choices would violate the First Amendment.

:In this paper, the influence of speech act theory and Grice’s the- ory of conversational implicature on the study of argumentation is discussed. First, the role that pragmatic insights play in van Eemeren and Grootendorst’s pragma-dialectical theory of argumentation and Jackson and Jacobs’ conver- sational approach to argumentation is described. Next, a number of examples of recent work by argumentation scholars is presented in which insights from speech act theory play a prominent role.

It is widely believed that there is more freedom of speech in America today than there was at the time of the founding. Indeed, this view is shared by liberal commentators, as one would expect, as well as by leading conservatives, which is more surprising. “The body of law presently defining First Amendment liberties,” writes liberal law professor Archibald Cox, grew out of a “continual expansion of individual freedom of expression.” Conservative constitutional scholar Walter Berns agrees: “Legally we (...) enjoy a greater liberty [of speech] than ever before in our history.” This shared assessment is correct—from the point of view of the political theory of today's liberalism—but it is incorrect from the point of view of the political theory of the American founding. (shrink)

The goal of this paper is an account of the semantics and pragmatics of exclamation. I focus on two key observations: first, that sentence exclamations like Wow, John bakes delicious desserts! and exclamatives like What delicious desserts John bakes! express that a particular proposition has violated the speaker’s expectations; and second, that exclamatives are semantically restricted in a way that sentence exclamations are not. In my account of these facts, I propose a characterization of illocutionary force of exclamation, (...) a function from propositions to speech acts of exclamation. The difference in meaning between sentence exclamations and exclamatives has consequences for the type of violated expectation. I end with a comparison to some previous approaches and a tentative extension of parts of the analysis to other constructions. (shrink)

Contemporary civil libertarians claim that their works preserve a worthy American tradition of defending free-speech rights dating back to the framing of the First Amendment. _Transforming Free Speech_ challenges the worthiness, and indeed the very existence of one uninterrupted libertarian tradition. Mark A. Graber asserts that in the past, broader political visions inspired libertarian interpretations of the First Amendment. In reexamining the philosophical and jurisprudential foundations of the defense of expression rights from the Civil War (...) to the present, he exposes the monolithic free-speech tradition as a myth. Instead of one conception of the system of free expression, two emerge: the conservative libertarian tradition that dominated discourse from the Civil War until World War I, and the civil libertarian tradition that dominates later twentieth-century argument. The essence of the current perception of the American free-speech tradition derives from the writings of Zechariah Chafee, Jr., the progressive jurist most responsible for the modern interpretation of the First Amendment. His interpretation, however, deliberately obscured earlier libertarian arguments linking liberty of speech with liberty of property. Moreover, Chafee stunted the development of a more radical interpretation of expression rights that would give citizens the resources and independence necessary for the effective exercise of free speech. Instead, Chafee maintained that the right to political and social commentary could be protected independent of material inequalities that might restrict access to the marketplace of ideas. His influence enfeebled expression rights in a world where their exercise depends increasingly on economic power. Untangling the libertarian legacy, Graber points out the disjunction in the libertarian tradition to show that free-speech rights, having once been transformed, can be transformed again. Well-conceived and original in perspective, _Transforming Free Speech_ will interest political theorists, students of government, and anyone interested in the origins of the free-speech tradition in the United States. (shrink)

Contemporary civil libertarians claim that their works preserve a worthy American tradition of defending free-speech rights dating back to the framing of the First Amendment. _Transforming Free Speech_ challenges the worthiness, and indeed the very existence of one uninterrupted libertarian tradition. Mark A. Graber asserts that in the past, broader political visions inspired libertarian interpretations of the First Amendment. In reexamining the philosophical and jurisprudential foundations of the defense of expression rights from the Civil War (...) to the present, he exposes the monolithic free-speech tradition as a myth. Instead of one conception of the system of free expression, two emerge: the conservative libertarian tradition that dominated discourse from the Civil War until World War I, and the civil libertarian tradition that dominates later twentieth-century argument. The essence of the current perception of the American free-speech tradition derives from the writings of Zechariah Chafee, Jr., the progressive jurist most responsible for the modern interpretation of the First Amendment. His interpretation, however, deliberately obscured earlier libertarian arguments linking liberty of speech with liberty of property. Moreover, Chafee stunted the development of a more radical interpretation of expression rights that would give citizens the resources and independence necessary for the effective exercise of free speech. Instead, Chafee maintained that the right to political and social commentary could be protected independent of material inequalities that might restrict access to the marketplace of ideas. His influence enfeebled expression rights in a world where their exercise depends increasingly on economic power. Untangling the libertarian legacy, Graber points out the disjunction in the libertarian tradition to show that free-speech rights, having once been transformed, can be transformed again. Well-conceived and original in perspective, _Transforming Free Speech_ will interest political theorists, students of government, and anyone interested in the origins of the free-speech tradition in the United States. (shrink)

The article is the author’s endeavor to reconstruct the semiotic conflict in the transatlantic legal appraisal of hate speech (between the USA and Europe) through Ancient Greek concepts of παρρησία (parrhēsia) and ισηγορία (isēgoria). The US Supreme Court case law on the First Amendment to American Constitution is, therefore, counter-balanced vis-à-vis la jurisprudence de Strasbourg on Article 10 of the European Convention of Human Rights. The author suggests that an adequate comprehension of the contemporary constitutional concepts of the (...) right to free speech in Western democracies is deceptive without a thorough analysis of its genealogy in the Ancient rhetorical cradle. (shrink)

My topic is the parallels between attacks on free speech by the U.S. war party, and attacks on free speech by what Charles Alan Kors and Harvey Silverglate have called “the shadow university”; and the blindness to these parallels of that part of the left and right that is not libertarian on free speech and due process.

This commentary proceeds as follows. First, it is argued from both ethical and legal perspectives through an analysis of Court precedents that Etzioni’s has improperly developed a too narrow First Amendment interpretation and conclusion that Apple should comply with the FBI’s demand to provide the FBI with a key to open iPhones. That is, broad First Amendment considerations and not solely narrow First Amendment “compelled speech” or only Fourth Amendment privacy issues are offered and analyzed (...) from both ethical and legal perspectives. A key point here is that broad First Amendment considerations protect, with exceptions, political and ethical discretion space for “Press” organizations to exercise, or not, ethical responsibilities, including rights to publish or not publish information and opinions, rather than compliance with government orders to publish or not publish. Further, Court cases are discussed from both legal and ethical perspectives where the Courts have established that social media organizations such as Facebook and Twitter do and should have broad First Amendment protection of free expression and peaceful assembly as traditional media such as newspapers have. It is suggested that Apple can and should be considered a social media organization. In addition, special First Amendment protection and limitations concerning national security are analyzed. Second, it is suggested that Etzioni’s point that Apple protected its clients soley for “business profitability” reasons is also a too narrow interpretation since there are more complex, mixed, and combined ethical and political-economic reasons for protecting clients and First Amendment protections. Third, the philosopher Paul Ricoeur’s ethics process responsibility framework concerning relationships between ethics and law and the need for an ethics responsibility rather than a compliance approach, which is similar to Brandeis’ legal ethics approach, is compared with and offered as an alternative to Etzioni’s compliance based “Liberal communitarian” approach. It is suggested that the difference between the Rocoeur and Etzioni approaches is similar to the difference between compliance and ethics responsibility process programs in organizations. (shrink)

On September 9, 2009, the Ninth Circuit U.S. Court of Appeals ruled that officials from Everett School District #2 in Mill Creek, Washington did not violate student Kathryn Nurre’s constitutional rights to free speech by denying the Jackson High School Wind Ensemble the opportunity to perform an instrumental version of Franz Biebl’s Ave Maria at the district’s graduation ceremony. This philosophical study addresses implications of this legal case regarding religious music and free speech in public school (...) music programs within the United States. Two questions are investigated: the issue of defining religious music and its relationship to the Establishment Clause of the First Amendment of the U.S. Constitution, and the issue of whether students have a right to musical expression protected by the First Amendment’s Free Speech Clause. Conclusions suggest that some music in the Western classical tradition cannot be easily categorized as exclusively sacred or secular, and that performances of such music can be supported on both philosophical grounds and through the precedent of traditional performance practice and usage. Further, when students are allowed a choice of repertoire, schools should foster good citizenship by respecting the free expression of students as long as choices are not unduly influenced by the teacher and such performances occur within the context of a respectful and neutral environment that does not overtly demand a religious response from audience members. (shrink)

Reno v. ACLU , the 1997 landmark decision by the United States Supreme Court providing sweeping protection to speech on the Internet, is usually discussed in terms of familiar First Amendment issues. Little noticed in the decision is the significance of the ontological assumptions of the justices in their first visit to cyberspace. I analyze the apparent awareness of the Supreme Court of ontological issues and problems with their approaches. I also argue that their current ontological assumptions (...) have left open the door to future suppression of free speech as the technology progresses. Ontology is significant because zoning in the physical world has long been recognized as a way to segregate "adult" entertainment from minors. So far, at least, the justices seem to agree that such zoning is not possible in cyberspace, and therefore that adult zones for certain forms of expression are not possible. But this conclusion is far from settled. The degree of free speech on the Internet in the future will depend on whether or not our ontological understanding of cyberspace supports such zoning or renders it incoherent or impossible. (shrink)

The notion of an indirect speech act is at the very heart of cognitive pragmatics, yet, after nearly 50 years of orthodox (Searlean) speech act theory, it remains largely unclear how this notion can be explicated in a proper way. In recent years, two debates about indirect speech acts have stood out. First, a debate about the Searlean idea that indirect speech acts constitute a simultaneous realization of a secondary and a primary act. Second, (...) a debate about the reasons for the use of indirect speech acts, in particular about whether this reason is to be seen in strategic advantages and/or observation of politeness demands. In these debates, the original pragmatic conception of sentence types as indicators of illocutionary force seems to have been getting lost. Here, I go back to the seemingly outdated “literal force hypothesis” (see Levinson 1983: 263–264) and point out how it is still relevant for cognitive pragmatics. (shrink)

Reno v. ACLU, the 1997 landmark decision by the United States Supreme Court providing sweeping protection to speech on the Internet, is usually discussed in terms of familiar First Amendment issues. Little noticed in the decision is the significance of the ontological assumptions of the justices in their first visit to cyberspace. I analyze the apparent awareness of the Supreme Court of ontological issues and problems with their approaches. I also argue that their current ontological assumptions have (...) left open the door to future suppression of free speech as the technology progresses. Ontology is significant because zoning in the physical world has long been recognized as a way to segregate "adult" entertainment from minors. So far, at least, the justices seem to agree that such zoning is not possible in cyberspace, and therefore that adult zones for certain forms of expression are not possible. But this conclusion is far from settled. The degree of free speech on the Internet in the future will depend on whether or not our ontological understanding of cyberspace supports such zoning or renders it incoherent or impossible. (shrink)

From the perspective of free speech theory, both of the central First Amendment values - human autonomy and deliberative democracy - require robust protection for the places and spaces in which speech and public discourse occur. This Article argues that current Supreme Court doctrine does not effectively protect speech from content neutral regulation of place. The problem is that remaining neutral is consistent with policies that would dislocate the very place for the “marketplace of ideas.” (...) Moreover, free speech theory focused on autonomy and deliberative democracy has not adequately addressed the role that place plays in furthering these values. Speech may be, and increasingly in practice is, suppressed by control of the places and spaces where speech occurs. Limitations on public expressions critical of administration policies at Presidential events is a key example of the regulation of speech through the regulation of place. Dissent is increasingly displaced with the consequence that the figure of dissent risks disappearing from public discourse. Employing aspects of Hanna Arendt's political philosophy, this Article argues that we need to re-think and re-articulate the importance of public places for our free speech tradition. Personhood and human autonomy, as well as robust public debate, can only exist and develop in fullest form within social structures that provide public places and spaces for human interaction and discourse. Fundamentally, as Arendt suggests, we protect public appearances for public discourse not simply for its instrumental value for deliberation, but for the intrinsic value of creating persons and citizens in their fullest form. (shrink)

In its January 20th, 2010 decision in Citizens United vs. Federal Election Commission, the United States Supreme Court ruled that certain restrictions on independent expenditures by corporations for political advocacy violate the First Amendment of the Constitution, which provides that “Congress shall make no law […] abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Justice Kennedy, writing for the (...) 5-4 majority, held that “[b]y suppressing the speech of manifold corporations, both for-profit and non-profit, the Government prevents their voices and view-points from reaching the public and advising voters on which person or entities are hostile to their interests” (Citizens United vs. Federal Election Commission 558 U.S. 38-9 (2010); emphasis added). Much of the language of the opinion, and some of its reasoning, as this passage illustrates, presupposes that corporations are agents capable of speech, and that it is (at least in part) in the light of this that limitations on political advocacy by corporations are prohibited by the Constitution. -/- While there are other strands in the argument, they are interwoven with the conception of the corporation as agent and speaker, with its voice and its viewpoints. The dissenters on the court objected on precisely this point (among others). Justice Stevens wrote sarcastically in his dissent, joined by Justices Ginsburg, Breyer, and Sotomayor, that “[u]nder the majority’s view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech” (558 U.S. 33 (2010)). Justice Sotomayor suggested in oral argument that the Court’s century-old practice of treating corporations as persons rests on a conceptual mistake. -/- My concern in this essay is not with the question whether the restrictions violate the Constitution. There are many issues that bear on this which will be outside the scope of my discussion. My concern is with the proper conceptual framework for understanding the agency of corporations and corporate speech, and the role that conceptions of these play in the background of the majority’s reasoning. The issue is legal, but it also has philosophical, conceptual and semantic aspects. It will be the latter aspects, and their potential to shed light on legal reasoning, that are my main focus. An adequate framework requires saying what properly speaking the corporation is, how agency is expressed through the corporation, whose agency it is, centrally whether the corporation is an agent or person in its own right, and in what sense it can be said to be capable of speech. I draw on recent work in collective action theory, particularly with respect to the semantics of collective action sentences (Ludwig 2007) and the analysis of the proxy agency in collective action (Ludwig 2014), to show (i) that corporations are neither genuine agents nor (therefore) capable of engaging in genuine speech, (ii) that consequently the First Amendment does not apply to corporations per se, and (iii) that a better understanding of the mechanisms of corporate agency casts doubt on more indirect arguments for extending the First Amendment to “corporate speech” as well. (shrink)

U.S. journalists must walk a fine line when reporting on hate speech. Journalists have a vested interest in standing up for the First Amendment, which gives them the freedom to do their work. Howev...

The quotational theory of free indirect discourse postulates that pronouns and tenses are systematically unquoted. But where does this unquotation come from? Based on cases of apparent unquotation in direct discourse constructions (including data from Kwaza speakers, Catalan signers, and Dutch children), I suggest a general pragmatic answer: unquotation is essentially a way to resolve a conflict that arises between two opposing constraints. On the one hand, the reporter wants to use indexicals that refer directly to the most salient (...) speech act participants and their surroundings (Attraction). On the other hand, the semantics of direct discourse (formalized here in terms of event modification) entails the reproduction of referring expressions from the original utterance being reported (Verbatim). Unquotation (formalized here also in terms of event modification), allows the reporter to avoid potential conflicts between these constraints. Unquotation in free indirect discourse then comes out as a special case, where the salient source of attraction is the story protagonist and her actions, rather than the reporting narrator and his here and now. (shrink)

The thesis of "Freedom of Communicative Action" is that Jurgen Habermas's theory of communicative action illuminated the deep structure of the First Amendment freedom of speech. Haberams's theory takes speech act theory as its point of departure. Communicative action coordinates indivudal behavior through rational understanding. Communicative action is distinguished from strategic action--the use of communication to manipulate, deceive, or coerce. Part I offers an introduction. Part II outlines a hermeneutic approach to interpretation of the First Amendent. (...) Part III explores and criticizes existing theories of the freedom of speech. Part IV explicates Habermas's theory of communicative action. Part V developes a theory of the freedom of expression based on Habermas's theory of communication. Part VI applies that theory to particular problems in free speech doctrine. Part VII draws some conclusions about the implications of this exercise for the development of doctrine and the theory of communicative action. "Freedom of Communicative Action" was published in 1989, and some of the views expressed in the article are no longer affirmed by the author. (shrink)

Through a series of texts and phone calls, Michelle Carter encouraged her boyfriend Conrad Roy to act on his suicidal thoughts, and after Roy killed himself, Carter was convicted of involuntary manslaughter. The case has received widespread attention, generating reactions ranging from rage at Ms. Carter to disbelief that she was convicted. An issue emphasized up to now is what it might mean for the First Amendment right of free speech if we hold that words can kill. (...) In presenting the case against punishing Ms. Carter, I show how the free speech issue intertwines with several others: Should the intimate exchanges between Carter and Roy have remained private? While privacy is valuable, it should not be a shield for harmful conduct, but did Ms. Carter, through her words, cause harm? If she believed that suicide would relieve Conrad of unbearable suffering, did she even act badly? And should the fact that society judges an individual’s actions to be immoral mean that the individual should be legally punished? The case serves as a touchstone for addressing fundamental issues of political, moral and legal theory with implications broader than whether Ms. Carter goes to prison. (shrink)

New Threats to Freedom In the twentieth century, free people faced a number of mortal threats,ranging from despotism, fascism, and communism to the looming menace of global terrorism. While the struggle against some of these overt dangers continues, some insidious new threats seem to have slipped past our intellectual defenses. These often unchallenged threats are quietly eroding our hard-won freedoms and, in some cases, are widely accepted as beneficial. In New Threats to Freedom, editor and author Adam Bellow has (...) assembled an all-star lineup of innovative thinkers to challenge these insidious new threats. Some leap into already raging debates on issues such as Sharia law in the West, the rise of transnationalism, and the regulatory state. Others turn their attention to less obvious threats, such as the dogma of fairness, the failed promises of the blogosphere, and the triumph of behavioral psychology. These threats are very real and very urgent, yet this collection avoids projecting an air of doom and gloom. Rather, it provides a blueprint for intellectual resistance so that modern defenders of liberty may better understand their enemies, more effectively fight to preserve the meaning of freedom, and more surely carry its light to a new generation. What are the new threats to freedom? when has authority not claimed, when imposing trammels and curbs on liberty, that it does so for a wider good and a greater happiness?” —Christopher Hitchens “The regulatory state amounts to a regressive tax that penalizes small independent producers and protects the status quo.” —Max Borders “Europe tends to favor stability over democracy, America democracy over stability.” —Daniel Hannan “The value of free expression is perceived to be at odds with goals that were considered ‘more important,’ like inclusiveness, diversity, nondiscrimination, and tolerance.” —Greg Lukianoff “The masses cannot ultimately be free: only the individual can be.” —Robert D. Kaplan “That old bugbear of postwar sociology—the mob-self—is now a reality. In a participatory/popularity culture, the freedom to think and act for ourselves becomes harder and harder to achieve.” —Lee Siegel “As traditional marriage declines, the ranks of single women are growing, and increasingly these women are substituting the security of a husband with the security of the state.” —Jessica Gavora “Ending the freedom to fail is a mean-spirited attack on the freedom to succeed.” —Michael Goodwin “The only solution to the new threats to American press freedom lies in organized resistance.” —Katherine Mangu-Ward “The new behaviorism isn’t interested in protecting people’s freedom to choose; on the contrary, its core principle is the idea that only by allowing an expert elite to limit choice can individuals learn to break their bad habits.” —Christine Rosen “There’s a world of Travis Bickles out there, and they’re not driving cabs. They’re reading blogs.” —Ron Rosenbaum “The first amendment ensures not that speech will be fair, but that it will be free. It cannot be both.” —David Mamet Join the conversation about these issues at www.newthreatstofreedom.com. (shrink)

The Supreme Court dismissed the Pornography/Civil Rights Ordinance as an unconstitutional restriction of speech. The Court's dismissal itself violates the free speech of the proposers of the Ordinance. It is not possible for both pornographers to perform the speech act of making pornography and feminists to perform the speech act of proposing the Ordinance. I show that the speech act of proposing the Ordinance takes First Amendment precedence over the speech act of (...) making pornography. (shrink)

This paper develops a way to model performative speech acts within a framework of dynamic semantics. It introduces a distinction between performative and informative updates, where informative updates filter out indices of context sets (cf. Stalnaker, Cole (ed), Pragmatics, Academic Press, 1978), whereas performative updates change their indices (cf. Szabolcsi, Kiefer (ed), Hungarian linguistics, John Benjamins, 1982). The notion of index change is investigated in detail, identifying implementations by a function or by a relation. Declarations like _the meeting (...) is (hereby) adjourned_ are purely performative updates that just enforce an index change on a context set. Assertions like _the meeting is (already) adjourned_ are analyzed as combinations of a performative update that introduces a guarantee of the speaker for the truth of the proposition, and an informative update that restricts the context set so that this proposition is true. The first update is the illocutionary act characteristic for assertions; the second is the primary perlocutionary act, and is up for negotiations with the addressee. Several other speech acts will be discussed, in particular commissives, directives, exclamatives, optatives, and definitions, which are all performative, and differ from related assertions. The paper concludes a discussion of locutionary acts, which are modelled as index changers as well, and proposes a novel analysis for the performative marker _hereby._. (shrink)

The 25th of January, 2011 witnessed a wave of political unrest all over Egypt, with repercussions that have re-shaped the future of contemporary Egypt. For the first time in the modern history of Egypt since the 1952 Nasserite revolution, grass-root protestors went to streets chanting slogans against the military regime headed by the (since then ex-) President of Egypt, Hosni Mubarak. This placed the then regime, as well as its mainstay, the National Democratic Party (NDP), in a political crisis (...) on both local and international scales. It is this critical moment that led Mubarak to give his unprecedented speech on February 1st, 2011. The speech has brought about epoch-making political changes in the history of contemporary Egypt. Under public pressure, two seminal declarations were made in this speech: (1) Mubarak’s intention not to nominate himself for a new presidential term; (2) a call on the Houses of Parliament to amend articles 76 and 77 of the constitution concerning the conditions on running for presidency and the period for the presidential term in Egypt. The present paper seeks to answer the following overarching question: what are the discursive strategies used for saving the political face of Mubarak in his speech on February 1st, 2011? I follow a text-analytic framework based on the socio-semantic theory of social actors and the pragmatic models of speech acts and face-threatening acts. The analysis reveals Mubarak’s attempt to save his positive political face as a legitimate President who regarded himself as the official ruler invested with absolute power over Egypt. (shrink)

This article is part of a Symposium that examines the legal and policy issues raised by the Schwarzenegger bobblehead doll litigation, in which a Hollywood star-turned-governor sued under California's right of publicity laws and under federal copyright law to stop a small Ohio company from selling a bobblehead doll depicting Schwarzenegger in a business suit, with a bandolier of bullets, and brandishing an assault rifle. The article contends that defendants' unauthorized use of the Schwarzenegger image on dolls and their accompanying (...) packaging was permissible as First Amendment-protected free speech under California's right of publicity laws and also constituted fair use under federal copyright law. The article rejects the argument that a First Amendment defense to plaintiff's right of publicity claims was unavailable because a bobblehead doll is not a "traditional" medium of expression for ideas. The article recognizes that overly expansive assertions of rights of publicity and other intellectual property rights threaten to stifle creative expression and diminish the cultural commons. The article also calls for clearer and more consistent recognition of defenses to right of publicity claims, particularly for cases where a defendant's unauthorized appropriation of another's image or likeness is for purposes of caricature, parody, or satire¿especially where the image is that of a politician. It concludes that the settlement of the Schwarzenegger bobblehead doll case illustrates how "strategic" assertions of even objectively non-meritorious rights of publicity can allow powerful plaintiffs to censor unflattering depictions of them and to unduly expand intellectual property rights without full adjudication on the merits of such claims.This insight is critical, because while other scholars have suggested that the "over-protection" of intellectual property rights (including rights of publicity) has a deleterious effect on freedom of expression and the public domain, these criticisms focus almost exclusively on published appellate cases. Yet, as this article reminds us, most cases settle and never become litigated cases, much less published appellate decisions. And most disputes - including intellectual property disputes - never result in formal litigation in the first instance. As with most other areas of the civil disputing process, intellectual property disputes are processed in the "shadow of the law", where repeat players have strategic advantages to shape the outcomes of disputes in their favor. Thus, if we want to know whether intellectual property rights are over-protected, we need to know what happens (and why) in the shadow of intellectual property law. This insight is the basis for the author's empirical research-in-progress focusing on "strategic intellectual property enforcement" by owners of trademarks, copyrights, and patents, including enforcement that never results in litigation and is thus under the radar of what most legal scholars in this area of law examine. (shrink)

The Supreme Court dismissed the Pornography/Civil Rights Ordinance as an unconstitutional restriction of speech. The Court's dismissal itself violates the free speech of the proposers of the Ordinance. It is not possible for both pornographers to perform the speech act of making pornography and feminists to perform the speech act of proposing the Ordinance. I show that the speech act of proposing the Ordinance takes First Amendment precedence over the speech act of (...) making pornography. (shrink)

English philosopher John Stuart Mill's understanding of the freedom of speech has been increasingly adopted over the last century into the US Supreme Court's interpretation of the First Amendment, beginning with Justice Oliver Wendell Holmes Jr.'s use of an analogy that is now known as the 'marketplace of ideas'.

This article examines United States v. Stevens, a case recently decided by the Supreme Court, and its relation to animal law and freedom of speech issues, specifically the contention between the two, caused by the statute in question at the heart of the case. While animal rights advocates wish to frame the case through an anti-animal cruelty perspective, those seeking to protect freedom of speech have made the statute an issue of First Amendment rights. Is 18 USC (...) § 48 an imposition on free speech or a step in the right direction towards protection of animals and promotion of their rights? It is argued here that the Supreme Court should have recognized the Stevens case as an important development in animal rights and held that the statute is narrowly tailored, based on a compelling government interest, and that the protection of animals from harm overshadows any possible speech or expression that is found in crush videos, dog fighting videos, and the like. (shrink)

A recent wave of public interest surrounding the alleged advertising of cigarettes to children has raised First Amendment issues under the commercial speech doctrine. The two most vocal sides of this debate are sharply divided over the amount of constitutional protection that should be offered to tobacco advertisers. Proponents of restrictions on such ads argue that commercial speech does not advance any ideas worth preserving and is consequently deserving of less protection than other forms of speech. (...) Their opponents assert that commercial speech should be offered wide protection because of its role in contributing to individual autonomy in the marketplace of ideas through informing consumer choice. While I believe that commercial speech should be offered broad protection, I will argue that severe restrictions are morally justifiable and legally defensible when it comes to advertising to children, particularly with respect to harmful products. Since the free market of ideas model is premised upon a notion that there are reasonable consumers that can discern falsehood from truth, this model is invalidated when it comes to children since they cannot be expected to possess the same capacity for judgment as adults. (shrink)

This article examines a thesis of interest to social epistemology and some articulations of First Amendment legal theory: that a free market in speech is an optimal institution for promoting true belief. Under our interpretation, the market-for-speech thesis claims that more total truth possession will be achieved if speech is regulatedonlyby free market mechanisms; that is, both government regulation and private sector nonmarket regulation are held to have information-fostering properties that are inferior to the (...) free market. After discussing possible counterexamples to the thesis, the article explores the actual implications of economic theory for the emergence of truth in a free market for speech. When confusions are removed about what is maximized by perfectly competitive markets, and when adequate attention is paid to market imperfections, the failure of the market-for-speech thesis becomes clear. The article closes by comparing the properties of a free market in speech with an adversarial system of discourse. (shrink)

In this controversial and provocative book, Mary Anne Franks examines the thin line between constitutional fidelity and constitutional fundamentalism. The Cult of the Constitution reveals how deep fundamentalist strains in both conservative and liberal American thought keep the Constitution in the service of white male supremacy. Constitutional fundamentalists read the Constitution selectively and self-servingly. Fundamentalist interpretations of the Constitution elevate certain constitutional rights above all others, benefit the most powerful members of society, and undermine the integrity of the document as (...) a whole. The conservative fetish for the Second Amendment (enforced by groups such as the NRA) provides an obvious example of constitutional fundamentalism; the liberal fetish for the First Amendment (enforced by groups such as the ACLU) is less obvious but no less influential. Economic and civil libertarianism have increasingly merged to produce a deregulatory, "free-market" approach to constitutional rights that achieves fullest expression in the idealization of the Internet. The worship of guns, speech, and the Internet in the name of the Constitution has blurred the boundaries between conduct and speech and between veneration and violence. But the Constitution itself contains the antidote to fundamentalism. The Cult of the Constitution lays bare the dark, antidemocratic consequences of constitutional fundamentalism and urges readers to take the Constitution seriously, not selectively. (shrink)

My thesis is simple. The right of informational privacy, the great modern achievement often attributed to the classic Samuel Warren and Louis Brandeis article, “The Right to Privacy” , asserts an individual's right not to have private personal information circulated. Warren and Brandeis claimed that individual dignity in a modern society requires that people be able to keep their private lives to themselves and proposed that the common law should be understood to protect this dignity by making dissemination of private (...) information a tort. As broadly stated, this right not to have private information distributed directly conflicts with a broadly conceived freedom of speech and of the press. My claim is that, in cases of conflict, the law should reject the Warren and Brandeis innovation. Speech and press freedom should prevail; the privacy tort should be ignored. This conclusion requires a normative argument concerning the appropriate basis and status of speech freedom that this essay will not really provide but for which I have argued elsewhere. Here, instead, I will describe that theory of speech freedom, explore its implications for informational privacy, and finally suggest some reasons to think that rejection of the privacy tort should not be so troubling and is, in fact, pragmatically desirable. (shrink)

This paper critically reviews the judgment of the United States Court of Appeals for the Ninth Circuit In re: Jayson Reynoso: Frankfort Digital Services et al., v. Sara L. Kistler, United States Trustee et al. (2007) 447 F.3d 1117. The appellants, who were non-lawyers, were indicted with unauthorised practice of law for offering bankruptcy petition services via online legal software or expert systems in law configured for filing bankruptcy petition forms. The United States Court of Appeals for the Ninth Circuit (...) found inter alia that appellants were bankruptcy petition preparers, and not being lawyers, had exceeded their clerical remit by offering legal advice and legal services in contravention of California law regulating legal practice and 11 U.S.C. Sect. 110 of the Bankruptcy Code (2002). While examining the legal ramifications of the use of legal software by non-lawyers in the preparation of legal documents, the paper critically reviews the factual circumstances of the Reynoso decision in the context of juridical and statutory constructs of unauthorised practice of law in the United States. The paper poses the question whether Reynoso should be viewed as a one-off decision bound by its peculiar facts, or good law for the broad proposition that non-lawyers cannot use legal software in legal documents preparation. The paper also notes the possible legal barriers to an unconditional ban on the design, sale, distribution, and uses of legal software by non-lawyers. These range from the First Amendment right to free speech, constitutional right to pro se legal representation, interstate commerce doctrine, to antitrust provisions of the Sherman Act. A regime of best practices for the use of legal software or expert systems in law by non-lawyers is proffered. (shrink)

What role do linguistic cues on a surface and contextual level have in identifying the intention behind an utterance? Drawing on the wealth of studies and corpora from the computational task of dialog act classification, we studied this question from a cognitive science perspective. We first reviewed the role of linguistic cues in dialog act classification studies that evaluated model performance on three of the most commonly used English dialog act corpora. Findings show that frequency‐based, machine learning, and deep (...) learning methods all yield similar performance. Classification accuracies, moreover, generally do not explain which specific cues yield high performance. Using a cognitive science approach, in two analyses, we systematically investigated the role of cues in the surface structure of the utterance and cues of the surrounding context individually and combined. By comparing the explained variance, rather than the prediction accuracy of these cues in a logistic regression model, we found that (1) while surface and contextual linguistic cues can complement each other, surface linguistic cues form the backbone in human dialog act identification, (2) with word frequency statistics being particularly important for the dialog act, and (3) the similar trends across corpora, despite differences in the type of dialog, corpus setup, and dialog act tagset. The importance of surface linguistic cues in dialog act classification sheds light on how both computers and humans take advantage of these cues in speech act recognition. (shrink)