Equal Speech Protection

96 Pages Posted: 3 Aug 2022

See all articles by Francesca Procaccini

Francesca Procaccini

Vanderbilt University - Vanderbilt Law School; Harvard Law School; Yale Law School

Date Written: April 2022


Political speech is not special. No type of speech is. First Amendment doctrine ubiquitously claims to value speech on a hierarchy, with political speech occupying the highest and most-protected position, followed by commercial speech and speech on private matters, with low-value speech on the bottom, least-protected rung. This hierarchy is a myth. The true but hidden framework of free speech law is actually one of equal speech protection. All speech, including political speech, receives comparable protection—and that level of protection is quite moderate across the board. Specifically, the equal protection speech receives permits the state to regulate speech in order to protect a safe and informed democratic discourse. This Article explains the origins and bases of the hierarchy myth, the reasons why equal speech protection supplants the hierarchy model, and the consequences of the myth’s persistence despite its failure to guide free speech doctrine.

Dismantling the myth that the First Amendment embraces a hierarchy of speech protection is critical at this precarious moment in the development of free speech law, when regulating speech—of all kinds—is essential to fostering a healthy public sphere. By excavating a robust tradition of equal and moderate speech protection out from under the shadow of the hierarchy myth, this Article recovers the hidden “social democratic theory” of speech protection—a theory that is singularly suited to addressing the modern speech challenges raised by an ever-expanding digital economy and dangerously toxic political speech environment.

Keywords: First Amendment, free speech

Suggested Citation

Procaccini, Francesca, Equal Speech Protection (April 2022). Virginia Law Review, Vol. 108, No. 353, 2022, Available at SSRN: https://ssrn.com/abstract=4176943

Francesca Procaccini (Contact Author)

Vanderbilt University - Vanderbilt Law School ( email )

131 21st Avenue South
Nashville, TN 37203
United States

Harvard Law School ( email )

1875 Cambridge Street
Cambridge, MA 02138
United States

Yale Law School ( email )

127 Wall Street
New Haven, CT 06510
United States

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