The 'Speech' in 'Freedom of Speech'

56 Pages Posted: 23 Mar 2017

See all articles by Leslie Kendrick

Leslie Kendrick

University of Virginia School of Law

Date Written: March 2017


Freedom of speech occupies a special place in American society. But what counts as “speech” is a contentious issue. In countless cases, courts struggle to distinguish highly protected speech from easily regulated economic activity. Skeptics view this struggle as evidence that speech is, in fact, not distinguishable from other forms of activity.

This paper refutes that view. It argues that speech is indeed distinct from other forms of activity, and that even accounts that deny this actually admit it. It then argues that the features that make speech distinctive as a phenomenon also make it distinctive as a normative matter. This does not mean that the skeptics are all wrong. It does, however, mean that they are wrong that freedom of speech is conceptually impossible. Speech is special in a way that makes it a plausible basis for a right of freedom of speech.

Keywords: First Amendment, freedom of speech, rights

Suggested Citation

Kendrick, Leslie, The 'Speech' in 'Freedom of Speech' (March 2017). Virginia Public Law and Legal Theory Research Paper No. 2017-12, Available at SSRN: or

Leslie Kendrick (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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