Free Speech Protection and Speaker’s Intent

An interesting article tackles the difficult and topical subject of free speech protection and the speaker’s intention.

First Amendment precedents can be confusing, non-linear, and seemingly not based upon common sense.  Professor Eugene Volokh in “The Freedom of Speech and Bad Purposes” scrutinizes whether a speaker’s improper purpose can actually lose protection for speech.  Using a wide spectrum of examples, from both the civil and criminal contexts, Professor Volokh concludes “the protection of speech should not turn on what a factfinder concludes about the speaker’s purposes.”

Free Speech - Criticize the Courts

For those that may not be as familiar with the particularities and seeming contradictions of First Amendment jurisprudence, Professor Volokh is undertaking a Herculean effort to try to strip the inconsistencies away and create a more unified theory.  This would make free speech protections more understandable to the common man is a admirable task.1   If individuals cannot understand the principles of the First Amendment, how can they use it in their daily life?

This article deals with the mental state of the speaker.  Arguably there are two different types of mental states that can be used in the free speech context: knowledge and intent.

[A] speaker’s motivation is entirely irrelevant to the question of constitutional protection.
—   FEC v. Wis. Right to Life, Inc., 551 U.S. 449 (2007).
What the speaker knows and what the speaker intends can be two totally different things.   Professor Volokh argues using the speaker’s intention or purpose to determine the constitutional protections for the speech will likely cause legitimate speech to lose protection.  One example that is given is that the value of speech is often decided by the speech’s content, not the speaker’s purpose.
I think this is an important article in an attempt to simply free speech doctrine.  This is a commonsense approach to a complex topic.
Joseph Thomas

Joseph Thomas

Joseph Thomas is a licensed attorney in Washington State whose practice includes constitutional and civil rights law.
Joseph Thomas

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  1. Since then individuals would not have to learn free speech principles, the exceptions to those principles, and then the exceptions to the exceptions, as they do currently.

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Joseph Thomas

Joseph Thomas is a licensed attorney in Washington State whose practice includes constitutional and civil rights law.

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