On the Distinction between Speech and Action

39 Pages Posted: 26 Oct 2014 Last revised: 13 Nov 2014

See all articles by Frederick Schauer

Frederick Schauer

University of Virginia School of Law

Date Written: October 24, 2014

Abstract

The distinction between speech and action lies at the foundation of any individualistic, self-expressive, or autonomy-based account of freedom of speech, and very possibly at the foundation of the very idea of free speech itself. But a close examination of the distinction reveals that the justification for treating speech differently from action, or, more precisely, for treating speech differently from non-speech action, is far less sound than is commonly supposed. In particular, neither the principle of autonomy nor the principle of freedom of thought can explain why speech or even thoughts whose consequences are equivalent to those of other actions are entitled to some special or differential immunity from state control. The absence of a sound justification for such differentiation casts doubt on both autonomy and freedom of thought justifications for a free speech principle, and may even, although less plainly, challenge the fundamental basis for any form of a free speech principle.

Keywords: freedom of speech, freedom of expression, autonomy, liberty

Suggested Citation

Schauer, Frederick, On the Distinction between Speech and Action (October 24, 2014). Virginia Public Law and Legal Theory Research Paper No. 2014-68. Available at SSRN: https://ssrn.com/abstract=2514453 or http://dx.doi.org/10.2139/ssrn.2514453

Frederick Schauer (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States
434-924-6777 (Phone)

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