George Mason Law Review Civil Rights Law Journal

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D. Summary of Speech

So what is speech? Viewed collectively, the language from both Brown and Sorrell provides very broad and expansive precepts for determining when something constitutes speech. In particular, neither the nature of the medium (books, plays, movies, or video games) nor the substantive importance of the message (political, entertaining, or social) controls the resolution of whether “speech” is involved. As Professor R. George Wright asserts, Justice Scalia, in Brown, “seems to be saying that distinctions between entertainment and political speech will typically be subjective or riskily unclear and, in that sense, arbitrary and not reasonably justified.”85 Similarly, one might argue that the determination by Justice Kennedy, in Sorrell, that information alone constitutes speech signals a *559 lessening, if not the outright negation, of the importance placed on medium when determining whether “speech” is implicated.86 If, as Kennedy observed, “[f]acts . . . are the beginning point for much of the speech that is most essential to advance human knowledge and to conduct human affairs,”87 then what role, if any, does the mode of the information imparted play in the determination of what constitutes speech?


If neither the medium nor the subject matter is determinative in resolving the threshold question of whether something constitutes speech, then the two critical guiding concepts from this pair of 2011 cases appear to be “ideas”--as used in Brown in the phrase “communicate ideas”88--and “information”-- as used in Sorrell in the phrase “creation and dissemination of information.”89 The notion that speech, for First Amendment purposes, is defined as the communication or expression of ideas comports with previous observations by the Supreme Court.90 This focus on information and ideas is also in accord with the “marketplace of ideas”--a venerable theory of free speech that underlies so much of First Amendment jurisprudence and that centers on the notion of ideas, namely the marketplace of ideas.91 For example, the Court tends to defend speech from *560 government censorship by reference to the ideas being conveyed, as in Texas v. Johnson, where it proclaimed that “[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”92 Thus, under long-standing Supreme Court doctrine and First Amendment principle, speech, broadly defined, involves ideas and their communication.


Yet additional analysis may be required to determine whether specific categories of idea communication constitute speech. For example, Justice Scalia’s reference in Brown to “literary devices”93 intimates that, in the media-artifact context, speech must somehow tell a story or possess certain elements of storytelling. However, it seems logical that the presence of such devices is merely a sufficient (rather than necessary) condition for finding an instance of speech, given what Justice Kennedy described in United States v. Alvarez as the “vast realm of free speech.”94 And with respect to the expressive-conduct variety of speech, although the Supreme Court has never provided a clear definition for “speech,” in Parcell, it adopted a test for determining whether expressive conduct constitutes speech.95


*561 Thus, at the end of the legal day, as Professor Schauer wrote three decades ago, speech is “a term of art in the phrase ‘freedom of speech,”’ and it essentially “is not possible to offer any simple definition of ‘speech’ in terms of equivalent words or of concrete things to which it refers.”96


It was into this milieu of definitional imprecision that, as described in the next three parts of this Article, lower courts found themselves grappling with the question of whether certain products and processes constitute speech. Part III of this Article begins to explore these controversies by addressing intersections of law and culture surrounding the question of whether tattoos and tattooing are speech as that term is used in the First Amendment.


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