Use Your Words: On the “Speech” in “Freedom of Speech”

Leslie Kendrick*

Freedom of speech occupies a special place in American society. But what counts as “speech” is a contentious issue. In countless cases, courts struggle to distinguish highly protected speech from easily regulated economic activity. Skeptics view this struggle as evidence that speech is, in fact, not distinguishable from other forms of activity.

This Article refutes that view. It argues that speech is indeed distinct from other forms of activity, and that even accounts that deny this distinction actually admit it. It then argues that the features that make speech distinctive as a phenomenon also make it distinctive as a normative matter. This does not mean that the skeptics are all wrong. It does, however, mean that they are wrong that freedom of speech is conceptually impossible. Speech is special in a way that makes it a plausible basis for a right of freedom of speech

*Albert Clark Tate, Jr., Professor of Law, University of Virginia. The author thanks Jack Balkin, Derek Bambauer, Jane Bambauer, Ashtuosh Bhagwat, Vincent Blasi, Brian Hutler, Fred Schauer, Micah Schwartzman, Amanda Shanor, and the participants of the Free Expression Scholars Conference at Yale Law School for their helpful comments. Thanks to Andrew Miller for excellent research assistance. All errors are my own.

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