Free Speech and Guilty Minds

43 Pages Posted: 1 Jul 2014

See all articles by Leslie Kendrick

Leslie Kendrick

University of Virginia School of Law

Date Written: July 2014

Abstract

It is axiomatic that whether speech is protected turns on whether it poses a serious risk of harm — in Holmes’s formulation, a “clear and present danger.” If this is correct, then the state of mind, or intent, of the speaker should be irrelevant. Yet First Amendment law makes speaker’s intent a factor in the protection of many different kinds of speech. This Essay offers an account of why and how speaker’s intent matters for speech protection. It argues that strong intuitions work against imposing strict liability for speech. These intuitions are best explained by an interest in speaker’s intent. An autonomy-based account of free speech provides reasons for this interest. Such an account also suggests what kind of intent is necessary before a given speaker may be subject to regulation. Elucidating speaker’s intent thus explains a mysterious aspect of First Amendment law and uncovers a new argument for autonomy theories of free speech.

Keywords: First Amendment, freedom of speech, intent, legal theory

Suggested Citation

Kendrick, Leslie, Free Speech and Guilty Minds (July 2014). Columbia Law Review, Vol. 115, No. 1255, 2014, Virginia Public Law and Legal Theory Research Paper No. 2014-36, Available at SSRN: https://ssrn.com/abstract=2460950

Leslie Kendrick (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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