Free Speech and Speaker's Intent: A Reply to Kendrick
115 Columbia Law Review Sidebar 1 (2015)
4 Pages Posted: 11 Mar 2015
Date Written: 2015
I have argued that a speaker’s mental state with respect to whether her words will cause harms that the government can legitimately seek to prevent should be immaterial to whether her speech is protected by the First Amendment — except to the extent her mental state bears on whether sanctioning her will chill others’ protectable speech. Recently, Professor Leslie Kendrick has taken issue with my position and the similar position of others. She argues that the speaker’s mens rea regarding the harmfulness of her speech affects the First Amendment protectability of her speech apart from chilling-effect concerns. The speaker’s mental state matters, not only for purposes of criminal law and tort law, but for free-speech law as well, and intrinsically rather than instrumentally. Although I accept the compliment of serving as one of her principal foils, I nonetheless continue to disagree with Professor Kendrick’s position.
Keywords: speech, chilling effect, intent, incitement, defamation, mens rea
JEL Classification: K10
Suggested Citation: Suggested Citation