The Freedom of Non-Speech
Constitutional Commentary, Forthcoming
35 Pages Posted: 5 Jan 2018 Last revised: 20 Mar 2018
Date Written: March 16, 2018
In their illuminating and timely new book, Free Speech Beyond Words, Professors Mark Tushnet, Alan Chen, and Joseph Blocher ask whether the First Amendment applies to expression that, like John Cage’s 4’33”, Lewis Carroll’s nonsense poem Jabberwocky, or Jackson Pollock’s splatter painting, does not use words or conventionally representational imagery. It is a question to which, as the authors show, the U.S. Supreme Court has long assumed has an affirmative answer. Even though such works do not use words to express ideas or otherwise convey meaning, and even though the Court is asking whether such works are within “the freedom of speech,” the Court has unanimously declared that they are “unquestionably shielded” by the Speech Clause. The question that Professors Tushnet, Chen, and Blocher seek to answer is why.
As I discuss in this Review Essay, the book’s three authors each make novel and valuable contributions with respect to how we should think about constitutional coverage for “speech” that does not employ language or convey articulable ideas. But the book as a whole can be read another way: as a broadside, and extremely effective, attack on listener-based First Amendment theories and doctrines that hang the presence or absence of First Amendment coverage on, as the Court stated in Spence v. Washington, whether “the likelihood was great that a [speaker’s particularized message] would be understood by those who viewed it.” As the authors prove, the question whether an audience understands a speaker’s expressive act to convey a particular message fails to resolve, and even frustrates, meaningful inquiry into the issue of First Amendment coverage for works that do not use words or convey a particular idea. Indeed, perhaps a more accurate (though much less marketable) title for the book might have been Free Speech Beyond Spence.
In addition to discussing the authors’ arguments, in this Essay I also offer my own alternative, perhaps more orthodox, framework for analyzing claims to First Amendment coverage for what I call “non-speech” — works of art and other expressive acts that, like those discussed by the authors, do not use language to communicate ideas. In brief, and drawing from other areas of constitutional law, I argue that the First Amendment protects not simply the act of expression, but also what comes before: the autonomy-based right to decide what to say. John Cage’s use of silence in 4’33”, for example, was unquestionably an expressive act, even though it used no words at all. Locating the Speech Clause’s protections earlier in the expressive act permits First Amendment doctrine to rest comfortably upon the idea that the Amendment covers expression that does not use words but that nevertheless is intended to communicate. I then discuss potential problems associated with extending First Amendment coverage over non-speech acts, pursuant either to the authors’ approaches or my alternative, in particular the need for limiting principles given a First Amendment theory and doctrine that seems, at least in recent cases and law journal articles, to only expand. If the First Amendment protects both speech and non-speech, and everyone seems to agree that it does, then the final need is for tools to identify when conduct is neither speech nor non-speech—to draw the boundaries of First Amendment coverage in a way that is clear and predictable to speakers, lawmakers, and reviewing courts.
Keywords: First Amendment; Constitutional Law
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