The Boundaries of Speech: What Actions and Restraints Are Significantly Reached by Justifications for Free Speech?

Abstract

Abstract This chapter focuses on what counts as “speech” for a principle of freedom of speech and is, thus, an introduction to all the chapters that follow. I proceed on the premise that the principle of special protection for speech covers mainly behavior to which its underlying justifications apply (though the principle may also come into play when the government has certain objectionable reasons for restricting behavior that itself might not qualify as speech). The chapter first explores the connection between the justifications for freedom of speech and the coverage of a principle of free speech. It then turns to claims of fact and value, communications that the justifications for free speech plainly cover, and examines whether such claims may nonetheless fall outside a principle of free speech if they are false, have narrow practical purposes, have no political content, are made in private, or remain uncommunicated to others. Next is a brief treatment of artistic expression and of actions that are not communicative in the ordinary sense; that discussion addresses the application of a principle of free speech when the government seeks to deter messages even if the acts prohibited do not otherwise qualify as speech. The rest of the chapter is devoted to “situation-altering” utterances and “weak” imperatives. I argue that communications whose dominant purpose is to accomplish something rather than to say something are not reached by a principle of free speech or are reached much less strongly than are ordinary claims of fact and value.