Free Speech and Speaker's Intent: A Reply to Kendrick

115 Columbia Law Review Sidebar 1 (2015)

San Diego Legal Studies Paper No. 15-183

4 Pages Posted: 11 Mar 2015

See all articles by Larry Alexander

Larry Alexander

University of San Diego School of Law

Date Written: 2015

Abstract

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

Alexander, Lawrence, Free Speech and Speaker's Intent: A Reply to Kendrick (2015). 115 Columbia Law Review Sidebar 1 (2015); San Diego Legal Studies Paper No. 15-183. Available at SSRN: https://ssrn.com/abstract=2576384

Lawrence Alexander (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States
619-260-2317 (Phone)
619-260-4728 (Fax)

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