The Anomalous Free Speech Clause

14 Pages Posted: 19 Aug 2022

See all articles by Perry Dane

Perry Dane

Rutgers, The State University of New Jersey - Rutgers Law School

Date Written: August 12, 2022


There is a sort of hydraulic relation between the doctrines of religious exemptions and freedom of expression. Any behavior can be religious; that is why even those of us who support robust free exercise protections should admit that they can be anomalous and normatively difficult. Only certain, conventionally ratified, behaviors are legally cognizable as expressive; that is an important limit, but it is also why freedom of speech can be powerful without being anomalous.

This short essay focuses on the obvious question arising out of the free speech side of this hydraulic relation: How, exactly, do we draw those boundaries around protectable expression? It tuns out, that religious threads are woven into the details of that complex normative fabric. Those threads arise out of specific religious traditions and histories and specific religious normative worlds. Indeed, if some of our stereotypical ideas about “religious” behavior center on practices such as praying, worshiping, attending church, or engaging in religious rituals, some of our central assumptions about the scope of free expression are grounded in another religious litany that includes, among other things, vigorous argument, ritual silence, and asking for alms. The consequences of this relationship are important both theoretically and practically.

Keywords: Freedom of speech, free expression, free exercise of religion, religious exemptions, John Milton, right to remain silent, charitable solicitation

Suggested Citation

Dane, Perry, The Anomalous Free Speech Clause (August 12, 2022). Available at SSRN: or

Perry Dane (Contact Author)

Rutgers, The State University of New Jersey - Rutgers Law School ( email )

Camden, NJ
United States
856-225-6004 (Phone)
856-225-6004 (Fax)


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