Free Speech Skepticism.

Abstract

If the free speech clause of the First Amendment is interpreted to mean that speech is to be granted special protection not accorded to other forms of conduct, then a free speech principle, distinct from a principle of general liberty, must be posited and must receive a distinct justification. A defense of a free speech principle must explain why the harm principle either does not apply in the case of speech or applies with less force than in the case of all other forms of human conduct. In this article, I argue that none of the defenses of the right to free speech on offer succeeds in showing why even significantly harmful speech is deserving of special protection not afforded non-speech conduct. More work needs to be done to justify a free speech principle and, until such work is done, the belief in the existence of a free speech principle that undergirds and justifies our current free speech practices is no more than an article of faith.