Monday, July 28, 2014
It is axiomatic that whether speech is protected turns on whether it poses a serious risk of harm — in Holmes’s formulation, a “clear and present danger.” If this is correct, then the state of mind, or intent, of the speaker should be irrelevant. Yet First Amendment law makes speaker’s intent a factor in the protection of many different kinds of speech. This Essay offers an account of why and how speaker’s intent matters for speech protection. It argues that strong intuitions work against imposing strict liability for speech. These intuitions are best explained by an interest in speaker’s intent. An autonomy-based account of free speech provides reasons for this interest. Such an account also suggests what kind of intent is necessary before a given speaker may be subject to regulation. Elucidating speaker’s intent thus explains a mysterious aspect of First Amendment law and uncovers a new argument for autonomy theories of free speech.