Is it Better to Be Safe than Sorry?: Free Speech and the Precautionary Principle

Abstract

Many of the problems of free speech are problems of causation. More specifically, the vast majority of events in which free speech concerns arise are ones in which an issue is presented about the relationship between some speech act and some consequence alleged to have been caused by that speech act. And it is very much the same when we think, not of individual speech acts and individual consequences, but instead in terms of the causal connection between classes of speech acts and classes of consequences.

That free speech scenarios involve causal relationships is not necessarily to say that identifying the causal relationship-or even the degree of causation-is always, or even usually, a difficult question. In the typical scenario involving offensive speech, for example, there is rarely an issue about whether the utterance involved has caused offense. Thus in Virginia v. Black, there was little doubt as to whether burning a cross adjacent to the home of an African-American caused both offense and fear. Instead, the important question was whether the speech-caused offense and fear could constitutionally permit legal intervention. Similarly, in many defamation and invasion of privacy situations, the questions of whether privacy has been invaded or reputation damaged are decidedly subservient to broader policy questions about just which forms of reputation damage and privacy invasion may be punished or sanctioned consistent with the demands of the First Amendment.

In other circumstances, however, the causation question is at the forefront of free speech controversies. Will advocacy of terrorism increase the likelihood of terrorist acts? Will publication of instructions for making bombs or committing murders for hire (probabilistically) cause such acts to occur, in the sense of increasing the chances that such acts will take place? Will endorsing or glorifying sexual violence have an effect on the incidence of sexual violence? Will advocating resistance to the draft or overthrow of the government produce more draft resistance or more attempts to overthrow the government than would otherwise have been the case? Will advertisements for gambling, cigarettes, or alcohol increase the frequency of such activities? In all of these instances, and many others, issues of causation are highly relevant, and First Amendment doctrine has been shaped, and will continue to be shaped, by the answers that courts, legislatures, and commentators give to such questions of causation.