Changing the Subject in the Free Speech Class
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Authors
Wright, R. George
Issue Date
2023-09
Volume
56
Issue
4
Type
Journal Article
Language
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Abstract
In several important contexts, free speech law relies upon a distinction between the subject matter of speech and the viewpoint taken or conveyed by that speech. It turns out, though, that any such distinction is actually illusory, and thus untenable in theory and practice. Happily, though, little value is lost by abandoning any attempt to distinguish between subject matter and viewpoint in free speech cases. Abandoning this distinction would allow for a more realistic and value-sensitive approach to the free speech interests at stake with no necessary harm to the important government interests that may also be at stake.
This Article briefly introduces the concepts of the subject matter of speech and the viewpoint taken or conveyed by the speech in question. Typically, the law curiously presumes that the speaker, and the relevant speech itself, have only one subject and one viewpoint. The Article then briefly discusses the constitutional free speech differences that the subject matter and viewpoint distinction is thought to make. In particular, the focus is on the legal and practical differences between government regulation of speech on the basis of the presumed subject matter of the speech, and government regulation of speech on the basis of the viewpoint thought to have been taken or conveyed by the speech.
The bulk of the Article then seeks to establish the illusoriness, as well as the distracting effect, of the distinction between regulation of speech on the basis of the subject matter or sometimes the identity of the speaker, and on the basis of the viewpoint of the speech. Drawing such distinctions is not merely, as the courts often declare, difficult, but in fact an inescapably impossible, conceptually confused task.
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Publisher
Creighton University School of Law