On communication.

• Author: Greenman, John
• Position: Speech conduct and free will

Everybody knows that communication is important, but nobody knows how to define it. The best scholars refer to it. Free-speech law protects it. But no one--no scholar or judge--has successfully captured it. Few have even tried.

This is the first article to define communication under the law. In it, I explain why some activities--music, abstract painting, and parading--are considered communicative under the First Amendment, while others--sex, drugs, and subliminal advertising--are not. I argue that the existing theories of communication, which hold that communicative behaviors are expressive or convey ideas, fail to explain what is going on in free-speech cases. Instead, communication hinges on the free will of the recipient. By this I mean that communication occurs when Person A conveys a thought to Person B, and Person B freely chooses whether to accept that thought. An act is communicative, in other words, if the important change that A wants to make in B's mind occurs only if B wills it to, as happens during an argument.

Reconceptualizing communication in this way--as behaviors meant to change minds through the free will of the listener--would solve deep and persistent First Amendment problems. It would explain which behaviors are communicative and therefore potentially covered by the First Amendment. Adopting the free-will theory would clarify the analysis in historically muddled areas such as the First Amendment treatment of nude dancing. But it would also shed light on the law governing new forms of behavior, such as publication of computer-programming code.

More broadly, the free-will theory of communication can point us in new directions. We are used to thinking of communication in ways that don't describe it, and these errors may keep us from recognizing new forms of communication as they develop. Applying the free-will theory of communication, I argue, will prepare us for technological changes that will make our old metaphors for communication obsolete.

TABLE OF CONTENTS INTRODUCTION I. EXPLORATION: WHAT DOES IT MEAN TO COMMUNICATE? A. The Coarse Definition of Communication Is Inadequate B. The Free-Will Theory Elaborated C. Analysis of Existing Theories 1. Communication Is Not Just the Conveyance of Ideas 2. Communication Is Not Just Behavior that Goes to the Mind 3. Communication Does Not Consist Only of Illocutionary Acts 4. Communication Does Not Consist Only of Behaviors that Convey Thoughts and Cause More Good than Harm II. APPLICATION: THE FREE-WILL THEORY OF COMMUNICATION AND THE FIRST AMENDMENT A. The Free-Will Theory and First Amendment Values B. Description of Speech-Conduct Law C. The Free-Will Theory and Content-Neutrality Analysis D. Identifying Freely Willed Responses E. Application: Nude Dancing and Publishing Code 1. Nude Dancing 2. Code Cases CONCLUSION INTRODUCTION

Everybody knows that communication is important, but nobody knows how to define it. The best scholars refer to it. (1) Free-speech law protects it. (2) Smart people tell us that the Internet should be structured to promote it. (3) But no one--no scholar or judge--has successfully captured it. Few have even tried.

The following acts are communicative enough to be covered by the First Amendment (4): playing music, (5) painting abstract figures, (6) marching in a Hibernian pride parade, (7) watching and showing movies, (8) dancing in the nude and watching nude dancing (barely), (9) picketing (sometimes), (10) posting computer source code, (11) and burning a flag or draft card. (12)

Compare these communicative acts to a list of noncommunicative acts: violence, (13) drug use, (14) subliminal advertising, (15) refusing to allow military recruiters on campus in protest of a government policy, (16) and sex. (17)

What's the difference between the first list and the second? Nobody knows. There are a few proposed distinctions, but none bear any scrutiny, and few have been seriously championed. The law nominally protects acts that are "expressive," but rarely defines that word. When a definition is provided, it does not capture what it seeks to--any reasonable definition of "expressive" would include sex and violence, which can be deeply expressive but are not seen as expression covered by the First Amendment. The same is true of other phrases used to describe First Amendment coverage, such as "the First Amendment protects the communication of ideas." (18) We aren't really sure what "ideas" are, but whatever they are, music and nude dancing don't convey them.

Some scholars argue that communicative acts are those directed at the mind and not the body, (19) but activities like psychotropic-drug use and subliminal advertising are directed at the mind and still not protected from regulation. Other scholars argue that philosophers like Ludwig Wittgenstein and J.L. Austin, who argued against a formalist understanding of language, can show us which acts are communicative. (20) But no scholar has explained how this work can be used to identify activities that are not communicative. And while other scholars assert that communicative acts are those that serve First Amendment values, there is no agreement as to which First Amendment value is paramount. (21) Nor has anybody explained how any one value could be used to distinguish between communication and noncommunication, as any value would also be furthered by some noncommunicative acts.

In short, we got nothing.

This Article fills the gap, providing the first viable legal definition of communication. Instead of worrying about "expression," or "ideas" or "mind," or "values," I will argue, we should be asking about free will. In determining what communication is, we are engaging our intuitions about free will. More specifically, we are engaging our intuitions about freely willed mental responses. By this I mean that communication occurs when Person A tries to convey a thought--some idea or feeling--to Person B, and Person B can freely choose whether to accept that thought. An act is communicative, in other words, if the important change that A wants to make in B's mind occurs only when B wills it to.

In this Article, I will develop and defend this theory--the free-will theory of communication. In Part I, I will articulate a coarse definition of communication, one that weeds out all the easy cases, and then argue that the coarse definition is overinclusive. I will then argue that the free-will theory defines communication more accurately than any of the four existing theories: (1) that communication is behavior that conveys ideas, (2) that communication is behavior that primarily impacts the mind, (3) that communication can be understood in reference to linguistic philosophy, and (4) that communication is behavior that conveys thoughts and causes limited harm.

In Part II, I will discuss the free-will theory of communication in the context of First Amendment law and theory. I will argue that theorists who attempt to derive a theory of communication by looking only at First Amendment values--meaning justifications for free speech--will inevitably fail, but that the flee-will theory is nonetheless consistent with a multiple-value approach. I will go on to argue that current speech-conduct law is incoherent and that the free-will theory could clarify it: in particular, it could solve problems by refining content-neutrality analysis. I will then apply my theory to two sets of flee-speech cases: the nude-dancing cases and cases governing the publication of computer-programming code.

In the Conclusion I very briefly explore the broader implications of the free-will theory, arguing that it can help us learn when to treat virtual worlds as real, reimagine the relationship between communication and the body, and prepare us for new technologies that we will not know how to classify under existing free-speech theory.

1. EXPLORATION: WHAT DOES IT MEAN TO COMMUNICATE?

   1. The Coarse Definition of Communication Is Inadequate

      I argue here that the existing definitions of communication don't work, by which I mean that they don't predict what either doctrine or intuition say communication is. But first, I will suss out a coarse definition of communication, one that will weed out behavior that is undisputedly not communicative, but that will ultimately prove overinclusive.

      Communication is made up of things like talking and writing and painting and making movies. We can note, as a start, that all these things are meant to convey a state of mind--an idea or feeling or emotion--from one person to another. To this we can add that the act must be reasonably recognizable as intended to convey thoughts. If, for instance, Fred drops a bowling ball off his roof to protest a treaty, he has not communicated disapproval even if he really meant to. Communication, in other words, requires use of conventional means to convey a state of mind.

      We can say, then, that communicative acts are those intended to convey mental states and performed in ways that are reasonably understood to be for that purpose. I'll call this definition--acts meant to convey thoughts done through means reasonably recognizable as serving that end--the "coarse" definition of communication, because it is useful but overinclusive. Let me also note that some scholars define communication (or its equivalent) in almost exactly this way, (22) presumably reasoning that this is as precise a definition as we can get.

      To test out the coarse definition, let's apply it to the following cases:

      1. A doctor prescribes Prozac for a patient.

      2. Person A takes a hit of ecstasy. A tries to explain to B what taking the drug feels like. Finding that words are insufficient, A gives B some of the drug.

      3. A nude erotic dancer dances onstage in front of a customer.

      4. An erotic dancer gives a customer a lap dance without touching him.

      5. An erotic dancer gives a customer a lap dance and rubs the customer while dancing.

      6. A movie theater splices a single frame advertising...