Harmful Speech and the Culture of Indeterminacy

Abstract

I advocate two propositions in this Essay: the constitutional law of at least one category of content regulation of free speech is indeterminate, and recognition of this indeterminacy has been and ought to continue to be the Supreme Court's decisional basis for protecting speech against content regulation. Milkovich is worth examining at some length, not only because of the Court's failure to come up with general guidelines (after all, pragmatic indeterminacy predicts that failure!), but also because what the Court did say cannot even guide the lower court on remand.

Keywords: Freedom of speech, Freedom of religion, First amendment, Pragmatic indeterminacy, Harmful speech, Tribe, Pragmatic indeterminacy, Pornography regulation, Obscene materials, Milkovich v. Lorain Journal Co., Miller v. California, Hustler Magazine v. Falwell, Roth v. United States, Lower court decision

JEL Classification: K10, K30, K39, K40, K49