What Counts as "Speech" in the First Place?: Determining the Scope of the Free Speech Clause

Abstract

The most fundamental question in free speech law is not whether to protect the speech in question, either as a matter of absolute principle' or through some judicial test. More fundamental is whether "speech," for purposes of the First Amendment, is even present. Not everything imaginable counts as speech in the relevant constitutional sense. If freedom of speech has particular purposes and goals, the idea of speech must have some bounds and limits. Speech for First Amendment purposes cannot include everything. One can be a free speech absolutist, certainly, only if not everything counts as speech.

So, we must distinguish two problems in every free speech case. The first and most fundamental problem, and the focus of our attention here, is always one of the scope, range, or boundaries of what counts as speech for First Amendment purposes. Only if we decide that the case presents speech in the relevant sense, must we then face the second and more familiar problem. The second problem is the proper degree or stringency of the constitutional protection to be accorded, or of the structure of that constitutional protection.