The Free Speech Vernacular: Conceptual Confusions in the Way We Speak About Speech

36 Pages Posted: 8 May 2018 Last revised: 25 Jun 2018

Tara A. Smith

University of Texas at Austin

Date Written: 2017

Abstract

In debates over the proper boundaries of free speech, we are naturally alert to the meanings of pivotal terms such as "offensive" speech, "hate" speech, and "group libel." Alongside such contested concepts, however, stand peripheral terms whose misuse can be every bit as influential but whose ramifications go unnoticed. Because these terms are not consistently associated with particular substantive positions, we tend to assume that they are neutral tools of the debate's infrastructure.

I argue that confusions concerning four such concepts - "absolute," "exception," "censorship," and "freedom" - impede clear thinking and often lend the cover of respectability to unjustified restrictions of speech.

The paper first offers examples of the misguided ways in which each term is frequently used and isolates the errors involved. It then explains the damage this inflicts, indicating how the confusions impede a logical understanding of the more substantive issues. Finally, it considers the deeper premises beneath the confusions, paying particular attention to the influence of utilitarian thinking.

While the project is a modest one of conceptual clean-up, its stakes are large. For as long as we labor under blurred conceptual boundaries, we will protect speech that should not be protected and restrict speech that should not be restricted.

Keywords: Free Speech, Law, First Amendment, Constitution, Vernacular, Speech, Philosophy of Law

Suggested Citation

Smith, Tara A., The Free Speech Vernacular: Conceptual Confusions in the Way We Speak About Speech (2017). Texas Review of Law & Politics, Vol. 22, No. 1, 2017. Available at SSRN: https://ssrn.com/abstract=3166234

Tara A. Smith (Contact Author)

University of Texas at Austin ( email )

2317 Speedway
Austin, TX 78712
United States

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