USE YOUR WORDS: ON THE 'SPEECH' IN 'FREEDOM OF SPEECH'.

• Author: Kendrick, Leslie

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.

TABLE OF CONTENTS INTRODUCTION I. THE EXPANDING FIRST AMENDMENT II. THE SPECIALNESS DEBATE III. THE "SPECIAL" IN SPECIAL RIGHTS IV. SPEECH AS A PHENOMENON A. The Skeptical View B. Speech as a Special Phenomenon C. The Structure of the Claim V. SPEECH AND NORMATIVE DISTINCTIVENESS A. Normative Distinctiveness B. Significance C. Limitations 1. The Choice of a Normative Theory 2. The Definition of "Speech" as a Normative Class 3. The Inclusion of Nonspeech in the Normative Class of "Speech" 4. The Robustness of Protection for Speech CONCLUSION 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 speech (4) 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 labor (9) 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. It argues that speech is, in fact, different from other activities, in ways that would support its being singled out for identification as a special right. In saying this, this Article takes on a particular strand of arguments by the skeptics--that speech, as a phenomenon, is not distinguishable from other forms of activity. Skeptics make other arguments as well, and not all of them can be addressed here. But this Article explains the structure of their arguments and takes the necessary step of addressing the threshold claim--that speech cannot be distinguished from other activities.

Part I describes the problem of defining "freedom of speech" by reference to the case law of the last century. Part II looks at how commentators have tried to define and justify the freedom of speech during the same time period. It describes the basic understandings of free speech on offer, including the skeptical view. Part III explains that the quandary of whether freedom of speech counts as a special right actually involves more than one question about more than one kind of specialness.

Part IV begins the project of defining freedom of speech by addressing the specialness of speech as a phenomenon. One argument made by the skeptics of free speech is that speech, as a phenomenon in the world, is no different from other activities. This is only one objection skeptics make, but if correct it is a fatal one. I argue that speech as a phenomenon is, indeed, sufficiently special. Part V argues that the distinctiveness of speech as a phenomenon offers a way to push back against claims that freedom of speech also lacks distinctiveness on a normative level. In brief, the very reasons that speech is distinctive as a phenomenon make it highly likely to support the recognition of a special right of freedom of speech.

Finally, I gesture toward the remaining work that must be done to develop a complete account of free speech as a special right. The end result of this piece will not be an all-purpose tool that can tell us whether civil rights laws, zoning ordinances, or net neutrality rules implicate free speech: quandaries that have taken decades to develop will require more than one article to resolve. The end result will instead be a necessary step toward that resolution.

1. THE EXPANDING FIRST AMENDMENT

   The U.S. Constitution refers to "the freedom of speech" as though it were a freestanding right, distinguishable both from other rights and from the usual democratic processes of lawmaking. (13) Meanwhile, "freedom of speech" is often treated as a basic human right that exists regardless of the political system under which individuals live. (14) Discussions of freedom of speech as a legal, political, or moral right thus take for granted that free speech is meaningfully distinguishable from other rights and from the principles that govern the regulation of conduct generally. This status can be described by saying that free speech is generally considered to be a special right. (15)

   At the same time, free speech theories almost always refer to some value that speech furthers. (16) No one claims that speech is normatively important in itself. (17) The explanations for why speech deserves special treatment always lead to the invocation of some larger value. For example, one might argue that free speech is necessary to the discovery of truth (18) or to legitimate democratic governance. (19) One might argue that free speech is both facilitative and reflective of human beings' personal or moral autonomy. (20) These justifications--the search for truth, democratic self-governance, and autonomy--are the major ones offered in defense of freedom of speech. For these and any other plausible justifications, some value beyond speech itself is the reason that speech is important.

   The quandary, then, is to explain why, if free speech can only be important in relation to some larger value, it is worth singling out and discussing on its own. In this Part, I will sketch the major attempts to address this question within American case law.

   The modern First Amendment was born in separate opinions of Justices Holmes and Brandeis in 1919 and 1927. Then and ever since, there has been an impulse to explain the existence of the freedom of speech by reference to multiple and overlapping justifications: speech is special and different because it serves multiple functions at once, in a way that is implied to be exceptional, indeed unique. In this regard, the dominant approach has been pluralistic.

   A signal example is...