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Harmful Speech and the Culture of Indeterminacy

22 Pages Posted: 30 Aug 2010  

Date Written: August 27, 2010


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

Suggested Citation

D'Amato, Anthony, Harmful Speech and the Culture of Indeterminacy (August 27, 2010). William & Mary Law Review, Vol. 32, 1991; Northwestern Public Law Research Paper No. 10-44. Available at SSRN:

Anthony D'Amato (Contact Author)

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

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