Free Speech and Public Self-Definition

Abstract

This Article elucidates the First Amendment interest in public self-definition—the freedom to craft the contours of one’s own public personas in the manner of one’s choosing. This interest, which is rooted in a broad conception of speaker autonomy, is a vital aspect of the First Amendment’s protection of free speech, underlying areas of First Amendment jurisprudence such as compelled speech, anonymity, and false statements of fact. Yet the interest is frequently overlooked, with relatively little discussion of it within First Amendment scholarship. This is unsurprising, given the tendency of the interest to fade into the background of many First Amendment analyses.

Understanding the public self-definition interest, however, is vital to a comprehensive understanding of the First Amendment. Although often overshadowed by more traditional instrumental rationales for speech protection, the interest exerts a gravitational pull on the Court’s resolution of a wide range of cases, both substantively and rhetorically. Indeed, four recent Supreme Court cases—Mahanoy Area School District v. B.L., Americans for Prosperity Foundation v. Bonta, Kennedy v. Bremerton School District, and 303 Creative LLC v. Elenis—illustrate the growing power of the interest.

This Article first describes the public self-definition interest and sets forth its theoretical and doctrinal foundations. It then maps out some of the analytical dimensions of the interest as illustrated by the four recent Supreme Court cases noted above. These cases shed light on different aspects of the interest, and they suggest a growing inclination by the present Court to accord significant analytical weight to it, elevating speakers’ autonomy interests at the expense of the government’s regulatory interests. The Article then reflects upon the broad ways in which the practical contours of public self-definition have shifted—and will continue to shift—in an age where the internet and social media play an outsized role in how people craft their public personas.

Keywords: First Amendment, Freedom of Speech, Free Speech, Constitutional Law, Legal Theory

JEL Classification: K00, K1, K10, K3, K30