Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Wednesday, May 16, 2018

Smith on The Free Speech Vernacular: Conceptual Confusions in the Way We Speak About Speech

Tara A. Smith, University of Texas, Austin, is publishing The Free Speech Vernacular: Conceptual Confusions in the Way We Speak About Speech in volume 22 of the Texas Review of Law & Politics (2017). Here is the abstract.

In debates over the proper boundaries of freedom of speech, we are naturally alert to the meanings of pivotal concepts, such as “offensive” speech or “hate” speech. We argue over what constitutes “incitement” or “group libel.” Alongside such contested concepts, however, stand peripheral terms whose misuse can be every bit as influential but whose ramifications go unnoticed. I have in mind such terms as “absolute” and “exception.” Because these terms are not associated with particular ideological positions (it is not that those who invoke “exceptions” systematically support more freedom for political speech, or less, for instance), we tend to assume that they are neutral tools, innocuous features of the debate’s infrastructure. In fact, I shall argue, confusions concerning these seemingly incidental concepts impede clear thinking about how a legal system should treat speech. Indeed, they often lend the cover of respectability to unjustified restrictions of speech. In this paper, I will consider four such concepts: “absolute,” “exception,” “censorship,” and “freedom.” I will begin, in Parts I and II, by offering examples of each being misused and indicating the errors involved (treating the concepts in pairs because of their close relationships). Next, in Part III, I will consider the fallout. What harm do such confusions inflict? What does it matter if people aren’t meticulous about terminology? In Part IV, I will turn to the roots of these errors. To correct a mistake, it can be helpful to understand its underlying sources. Thus, I will ask, what deeper premises might foster these four confusions about speech? While a handful of ideas contribute, I will focus primarily on the particularly influential role of utilitarian thinking. As a preliminary, I should clarify the parameters of this discussion. In claiming that certain usages of terms reflect misconceptions, I am obviously relying on beliefs about the correct meanings of these four terms. A full defense of these meanings would require substantial examination in a separate paper of its own, however. My aim here is simply to indicate serious problems with the reigning conceptions. These should be visible even without a decisive vindication of the ultimately correct alternatives. Further, I should be forthright about my own views (particularly given their minority status). I believe that the right to free speech is absolute and admits of no exceptions, that censorship consists of government restrictions on an individual’s freedom of speech and that this freedom consists of the absence of others’ forcibly restricting one’s speech. This is not the thesis of this paper, however; thus, I will not offer a direct case for it here. Rather, my present aim is the more modest one of conceptual clean-up: I seek to carve more accurately the conceptual categories that inform our thinking about free speech, so as to help us reach valid conclusions about its boundaries. One need not sympathize with my larger views to be able to appreciate that clean-up is needed, for the field of debate is strewn with confusions, as we will see. And while my aims are relatively modest, the stakes are large. For as long as we labor under blurred conceptual boundaries, we will reach misguided conclusions and, consequently, we will protect speech that should not be protected and we will restrict speech that should not be restricted.

Download the article from SSRN at the link.

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