22 Pages Posted: 17 Jun 2005
This essay comments on papers presented at the University of Minnesota by Lillian BeVier and Frederick Schauer. The essay argues that the proper subject of free speech analysis is the thing or things that make speech different from other, more freely regulated activities. From the well-accepted premise that it takes more than the presence of expression (which is present in almost all cases) to make a case a free speech case, the essay argues that conventional forms of free speech analysis, including content neutrality and scrutiny of regulatory motives, are imperfect proxies used to identify combinations of expressive costs and benefits. A case becomes a free speech case when the ratio of expressive gains to costs is high enough to justify courts in believing that expressive activity should be protected as speech. Neither content neutrality nor motive analysis can explain what should count as a cost or benefit, however, nor determine when they should be applied. These tools therefore must be treated as tools - proxies - for normative analysis, rather than as the end of analysis. To exemplify these claims, the essay defends the result in Bartnicki v. Vopper and the claim that non-traditional speakers, such as bloggers, should receive no less free speech protection than traditional media businesses.
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