On Communication

63 Pages Posted: 27 Aug 2007

Abstract

Everybody knows that communication is important, but nobody knows how to define it. On Communication is the first article to define communication under the law. In it, I explain why some activities (music, abstract painting, and parading) are considered communicative under the First Amendment, and others (sex, drugs, and subliminal advertising) are not. I argue that the existing theories of communication - that communicative behaviors are expressive or convey ideas - fail to explain what is going on in free speech cases. Instead, I will argue, communication hinges on the free will of the communicant. By this I mean that communication occurs when Person A tries to convey a thought to person B, and Person B can freely choose whether to accept that thought. An act is communicative, in other words, if the important change that A wants to make in B's mind occurs only if B wills it to, as happens during an argument. Reconceptualizing communication in this way - as behaviors meant to change minds through the free will of the listener - would solve deep and persistent First Amendment problems. It would explain which behaviors are communicative and therefore possibly covered by the First Amendment. Adopting the free-will theory would clarify the analysis in historically muddled areas, such as the First Amendment treatment of nude dancing. But it would also shed light on the law governing new forms of behavior, such as publication of computer programming code. More broadly, the free-will theory of communication can point us in new directions. Applying the free-will theory of communication, I will argue, will prepare us for technological changes that will make our old metaphors for communication obsolete.

Keywords: Communication, First Amendment

Suggested Citation

Greenman, John, On Communication. Michigan Law Review, Forthcoming, Stanford Public Law Working Paper No. 1009421, Available at SSRN: https://ssrn.com/abstract=1009421

John Greenman (Contact Author)

Stanford Law School ( email )

Stanford, CA 94305
United States

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