A free speech metavalue for the next millennium: Autonomy of consciousness in first amendment theory and practice

American Business Law Journal

Volumn 35, Issue 1, 1997, Pages 1-46

  Lee Reed, O ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0031312951     PISSN: 00027766     EISSN: None     Source Type: Journal    
DOI: 10.1111/j.1744-1714.1997.tb01001.x     Document Type: Article

References (250)

1. E.g., CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH xi (1995) ("More than anything else in the Constitution, the First Amendment's protection of free speech and free press symbolizes the American commitment to liberty under law.").
2. "The conception of language as the 'key' to man and to social history and as the means of access to the laws of societal functioning constitutes perhaps one of the most striking characteristics of our era, and as such is definitely a new phenomenon." JULIA KRISTEVA, LANGUAGE THE UNKNOWN: AN INITIATION TO LINGUISTICS 3 (A. Menke trans., 1989). See also infra notes 52-117 and accompanying text.
3. O. Lee Reed, Is Commercial Speech Really Less Valuable Than Political Speech? On Replacing Values and Categories in First Amendment Jurisprudence, 34 AM. BUS. L.J. 1 (1996).
4. Id. at note 3 and accompanying text. Although discussion of the logical inconsistencies and practical difficulties of First Amendment analysis based on speech-value categories is beyond the purview of this article, two brief illustrations are in order. First, free speech jurisprudence currently requires the determination of whether speech is political, commercial, obscene, conduct-based, or provocative. Different analytical tests apply according to the category of speech-value thus determined. This determination is often logically impossible to make as shown by the plethora of court cases about what is or is not obscene. See generally EDWARD DE GRAZIA, GIRLS LEAN BACK EVERYWHERE (1992).
5. The same categorization difficulty exists in judging when commercial speech becomes political and when "pure speech" becomes conduct/speech. In defamation and intentional infliction of mental distress cases, the categorical distinction between "public" and other discourse "is notoriously ill-conceived and unreliable." Robert C. Post, The Constitutional Concept of Public Discourse: Outrageous Opinion, Democratic Deliberation and Hustler Magazine v. Falwell, 103 HARV. L. REV. 603, 667 (1990). Second, the public often misconceives the doctrinal subtleties of value categorization. In part because of the value rhetoric accorded political speech, the public fails to grasp that speech protection is not absolute and that some types of speech are quite harmful and warrant restriction. Cf. Statement of Justice Frankfurter, infra note 129. Categorization provides no adequate basis for determining when the government can restrict speech. As long as First Amendment analysis attempts to assign speech into value categories, this confusion will likely continue.
6. Id.
7. See infra notes 90-91 and accompanying text.
8. CHARLES TAYLOR, SOURCES OF THE SELF: THE MAKING OF THE MODERN IDENTITY 36 (1989).
9. See infra notes 114-116 and accompanying text.
10. "And although all the winds of doctrine were let loose to play upon the earth, so truth be in the field, we do injuriously, by licensing and prohibiting, to misdoubt her strength. Let her and Falsehood grapple; whoever knew Truth put to the worse, in a free and open encounter?" John Milton, Areopagita, in 32 GREAT BOOKS OF THE WESTERN WORLD 381, 409 (Robert Maynard Hutchins ed., 1952).
11. See a discussion of Lockean theory in MARY ANN GLENDON, RIGHTS TALK 22 (1991). Not all commentators believe that Locke's natural rights theory supported looking "beyond the four corners of the Constitution as it seeks to enforce those rights." LANE V. SUNDERLAND, POPULAR GOVERNMENT AND THE SUPREME COURT: SECURING THE PUBLIC GOOD AND PRIVATE RIGHTS 15 (1996). Sunderland argues that a "careful reading of Locke reveals that he is nearly as cautious as Hobbes in his hesitancy to set forth a body of substantive rights that are beyond the authority of the properly constituted legislative authority." Id. at 16.
12. See a discussion of Lockean theory in MARY ANN GLENDON, RIGHTS TALK 22 (1991). Not all commentators believe that Locke's natural rights theory supported looking "beyond the four corners of the Constitution as it seeks to enforce those rights." LANE V. SUNDERLAND, POPULAR GOVERNMENT AND THE SUPREME COURT: SECURING THE PUBLIC GOOD AND PRIVATE RIGHTS 15 (1996). Sunderland argues that a "careful reading of Locke reveals that he is nearly as cautious as Hobbes in his hesitancy to set forth a body of substantive rights that are beyond the authority of the properly constituted legislative authority." Id. at 16.
13. John Stuart Mill, On Liberty, in 43 GREAT BOOKS OF THE WESTERN WORLD 267 (Robert Maynard Hutchins ed., 1952).
14. Lawrence Friedman, The Constitution and American Legal Culture, 32 ST. LOUIS U. L.J. 1, 5 (1987) ("The Supreme Court of the United States did not decide a single significant case on the limits of freedom of speech in the entire nineteenth century."). See also SUNSTEIN, supra note 1, at 4 ("Before 1919, there were very few free speech cases in the federal courts.")
15. Lawrence Friedman, The Constitution and American Legal Culture, 32 ST. LOUIS U. L.J. 1, 5 (1987) ("The Supreme Court of the United States did not decide a single significant case on the limits of freedom of speech in the entire nineteenth century."). See also SUNSTEIN, supra note 1, at 4 ("Before 1919, there were very few free speech cases in the federal courts.")
16. David Yasskey, Eras of the First Amendment, 91 COLUM. L. REV. 1699, 1710 (1991) ("The Founders' intention for the First Amendment, if there is such a thing, was not to eradicate censorship. It was to limit the central government's prerogatives."). Cf. Thomas Jefferson's statement: "While we deny that Congress have the right to control the freedom of the press we have ever asserted the right of the states, and their exclusive right to do so." Quoted in VERMONT ROYSTER, THE AMERICAN PRESS AND THE REVOLUTIONARY TRADITION 12 (1974).
17. David Yasskey, Eras of the First Amendment, 91 COLUM. L. REV. 1699, 1710 (1991) ("The Founders' intention for the First Amendment, if there is such a thing, was not to eradicate censorship. It was to limit the central government's prerogatives."). Cf. Thomas Jefferson's statement: "While we deny that Congress have the right to control the freedom of the press we have ever asserted the right of the states, and their exclusive right to do so." Quoted in VERMONT ROYSTER, THE AMERICAN PRESS AND THE REVOLUTIONARY TRADITION 12 (1974).
18. THOMAS M. COOLEY, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION 528 (4th ed. 1878).
19. Friedman, supra note 12, at 6.
20. See Reed, supra note 3, at 8.
21. See e.g., HARRY KALVEN, JR., A WORTHY TRADITION: FREEDOM OF SPEECH IN AMERICA 142-149 (Jamie Kalven ed., 1988); Gerald Gunther, Learned Hand and the Origins of Modern First Amendment Doctrine: Some Fragments of History, 27 STAN. L. REV. 719 (1975); G. Edward White, Justice Holmes and the Modernization of Free Speech Jurisprudence: The Human Dimension, 80 CAL. L. REV. 391 (1992).
22. See e.g., HARRY KALVEN, JR., A WORTHY TRADITION: FREEDOM OF SPEECH IN AMERICA 142-149 (Jamie Kalven ed., 1988); Gerald Gunther, Learned Hand and the Origins of Modern First Amendment Doctrine: Some Fragments of History, 27 STAN. L. REV. 719 (1975); G. Edward White, Justice Holmes and the Modernization of Free Speech Jurisprudence: The Human Dimension, 80 CAL. L. REV. 391 (1992).
23. See e.g., HARRY KALVEN, JR., A WORTHY TRADITION: FREEDOM OF SPEECH IN AMERICA 142-149 (Jamie Kalven ed., 1988); Gerald Gunther, Learned Hand and the Origins of Modern First Amendment Doctrine: Some Fragments of History, 27 STAN. L. REV. 719 (1975); G. Edward White, Justice Holmes and the Modernization of Free Speech Jurisprudence: The Human Dimension, 80 CAL. L. REV. 391 (1992).
24. See generally Reed, supra note 3.
25. This assertion is argued throughout Reed, supra note 3.
26. See infra notes 127-137 and accompanying text.
27. IX WRITINGS OF JAMES MADISON 103 (G. Hunt ed., 1910).
28. Most recently, this implication appears in SUNSTEIN, supra note 1, at xiii ("Currently American law protects much speech that ought not to be protected. It safeguards speech that has little or no connection with democratic aspirations . . . . ").
29. ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT 94 (1948).
30. Robert H. Bork, Neutral Principles and Some First Amendment Problems, 479 IND. L.J. 1, 26-27 (1971).
31. Alexander Meiklejohn, The First Amendment Is an Absolute, 1961 SUP. CT. REV. 245, 263; Zechariah Chafee, Jr., Book Review, 62 HARV. L. REV. 891, 895 (1949) (asserting that Meiklejohn believed "private discussion is open to restriction because it is protected by the Fifth Amendment").
32. Alexander Meiklejohn, The First Amendment Is an Absolute, 1961 SUP. CT. REV. 245, 263; Zechariah Chafee, Jr., Book Review, 62 HARV. L. REV. 891, 895 (1949) (asserting that Meiklejohn believed "private discussion is open to restriction because it is protected by the Fifth Amendment").
33. 250 U.S. 616, 630 (1920) (Holmes, J., dissenting).
34. Lamont v. Postmaster Gen., 381 U.S. 301, 308 (1965).
35. See Reed, supra note 3, at 12-14.
36. Abrams, 250 U.S. at 630 (Holmes, J., dissenting).
37. E.g., Roth v. United States, 354 U.S. 476, 484 (1957) ("The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social change desired by the people.").
38. C. Edwin Baker, Freedom of Speech, 25 UCLA L. REV. 964, 965 (1978).
39. THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).
40. 274 U.S. 357 (1927) (Brandeis, J., concurring).
41. Id. at 375.
42. Id.
43. Procunier v. Martinez, 416 U.S. 396, 427 (1974) (Marshall, J., concurring).
44. Cohen v. California, 403 U.S. 15, 24 (1971).
45. Herbert v. Lando, 441 U.S. 153, 186 n.1 (Brennan, J., dissenting).
46. As if further indication is needed. The Court has repeatedly referred to political speech as constituting the "core" of the freedom of speech. E.g., McIntyre v. Ohio Elections Comm'n, 115 S. Ct. 1511 (1995); R.A.V. v. City of St. Paul, 505 U.S. 377, 422 (1992) (Stevens, J., concurring); Burson v. Freeman, 504 U.S. 191, 222 (1992) (Stevens, J. dissenting); Austin v. Michigan State Chamber of Commerce, 494 U.S. 752, 686 (1990) (Scalia, J., dissenting); Mayer v. Grant, 486 U.S. 414, 420 (1988); FEC v. Massachusetts Citizens for Life, 479 U.S. 238, 255 (1986).
47. Stanley v. Georgia, 431 U.S. 291 (1977).
48. Virginia State Bd. of Pharm. v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 763 (1976).
49. Of those commercial speech cases reaching the Court that did not involve public advertising, the most recent, Florida Bar v. Went For It, Inc. 115 S. Ct. 2371 (1995), contained only a tepid endorsement of commercial speech. In upholding a bar restriction requiring attorneys to wait thirty days before mailing legal services solicitation letters to the survivors of accident victims, the Court stated: "We have always been careful to distinguish commercial speech from speech at the First Amendment's core." Id. at 2376.
50. Pierre J. Schlag, An Attack on Categorical Approaches to Freedom of Speech, 30 UCLA L. REV. 671, 680 (1983).
51. See Mill, supra note 11, at 273.
52. IMMANUEL KANT, FOUNDATIONS OF THE METAPHYSICS OF MORALS 52-53 (L.W. Beck trans., 1969).
53. Martin H. Redish, The Value of Free Speech, 130 U. PA. L. REV. 591 (1982).
54. Thomas I. Emerson, Toward a General Theory of the First Amendment, 72 YALE L. J. 877, 878-879 (1963).
55. Baker, supra note 31, at 974.
56. See generally Thomas Scanlon, A Theory of Freedom of Expression, 1 PHIL. & PUB. AFF. 204 (1972); David A. Strauss, Persuasion, Autonomy and Freedom of Expression, 91 COLUM. L. REV. 334 (1991).
57. See generally Thomas Scanlon, A Theory of Freedom of Expression, 1 PHIL. & PUB. AFF. 204 (1972); David A. Strauss, Persuasion, Autonomy and Freedom of Expression, 91 COLUM. L. REV. 334 (1991).
58. Baker, supra note 31, at 990.
59. "Anyone who supposes that the protection of the First Amendment can be reduced to one justification or to one all purpose test of coverage is either deluded or willing to sacrifice a great deal in the interests of theoretical neatness and actual or apparent simplicity of administration." KENT GREENAWALT, SPEECH, CRIME, AND THE USES OF LANGUAGE 340 (1989). See also Larry Alexander & Paul Horton, The Impossibility of a Free Speech Principle, 78 NW. U. L. REV. 1319 (1983); Steven Shiffrin, The First Amendment and Economic Regulation: Away from a General Theory of the First Amendment, 78 NW. U. L. Rev. 1212 (1983).
60. "Anyone who supposes that the protection of the First Amendment can be reduced to one justification or to one all purpose test of coverage is either deluded or willing to sacrifice a great deal in the interests of theoretical neatness and actual or apparent simplicity of administration." KENT GREENAWALT, SPEECH, CRIME, AND THE USES OF LANGUAGE 340 (1989). See also Larry Alexander & Paul Horton, The Impossibility of a Free Speech Principle, 78 NW. U. L. REV. 1319 (1983); Steven Shiffrin, The First Amendment and Economic Regulation: Away from a General Theory of the First Amendment, 78 NW. U. L. Rev. 1212 (1983).
61. "Anyone who supposes that the protection of the First Amendment can be reduced to one justification or to one all purpose test of coverage is either deluded or willing to sacrifice a great deal in the interests of theoretical neatness and actual or apparent simplicity of administration." KENT GREENAWALT, SPEECH, CRIME, AND THE USES OF LANGUAGE 340 (1989). See also Larry Alexander & Paul Horton, The Impossibility of a Free Speech Principle, 78 NW. U. L. REV. 1319 (1983); Steven Shiffrin, The First Amendment and Economic Regulation: Away from a General Theory of the First Amendment, 78 NW. U. L. Rev. 1212 (1983).
62. MAX BLACK, THE LABYRINTH OF LANGUAGE 12 (1968).
63. E.g., "[We] can understand neither ourselves nor our world until we have fully understood what language is and what it has done for our species." DEREK BICKERTON, LANGUAGE AND SPECIES 257 (1990).
64. B.F. Skinner, Why Don't We Use the Behavioral Sciences, HUMAN NATURE, Mar. 1978, at 86.
65. RICHARD M. RESTAK, THE MIND 204 (1988).
66. STEVEN PINKER, THE LANGUAGE INSTINCT 15 (1994).
67. CHARLES TAYLOR, HUMAN AGENCY AND LANGUAGE: PHILOSOPHICAL PAPERS I 216 (1985).
68. Id. Professor Taylor explains: "The issue concerns the nature of man, or what it is to be human. What it is to think, to reason, to create; and since all of this points us toward language, we can expect that the study of language will become even more of a central concern of our intellectual life." Id. at 247.
69. MERLIN DONALD, ORIGINS OF THE MODERN MIND: THREE STAGES IN THE EVOLUTION OF CULTURE AND COGNITION 215 (1991).
70. RESTAK, supra note 55, at 197. Cf. "On this essential skill depends everything that we call civilization." BLACK, supra note 52, at 10. DEREK DENTON, THE PINNACLE OF LIFE: CONSCIOUSNESS AND SELF-AWARENESS IN HUMANS AND ANIMALS 13 (1993).
71. RESTAK, supra note 55, at 197. Cf. "On this essential skill depends everything that we call civilization." BLACK, supra note 52, at 10. DEREK DENTON, THE PINNACLE OF LIFE: CONSCIOUSNESS AND SELF-AWARENESS IN HUMANS AND ANIMALS 13 (1993).
72. RESTAK, supra note 55, at 197. Cf. "On this essential skill depends everything that we call civilization." BLACK, supra note 52, at 10. DEREK DENTON, THE PINNACLE OF LIFE: CONSCIOUSNESS AND SELF-AWARENESS IN HUMANS AND ANIMALS 13 (1993).
73. MORTIMER J. ADLER, THE DIFFERENCE OF MAN AND THE DIFFERENCE IT MAKES 134 (1967); SUZANNE LANGER, PHILOSOPHY IN A NEW KEY 281 (1942); PINKER, supra note 56, at 117.
74. MORTIMER J. ADLER, THE DIFFERENCE OF MAN AND THE DIFFERENCE IT MAKES 134 (1967); SUZANNE LANGER, PHILOSOPHY IN A NEW KEY 281 (1942); PINKER, supra note 56, at 117.
75. MORTIMER J. ADLER, THE DIFFERENCE OF MAN AND THE DIFFERENCE IT MAKES 134 (1967); SUZANNE LANGER, PHILOSOPHY IN A NEW KEY 281 (1942); PINKER, supra note 56, at 117.
76. E.g., Skinner, supra note 54, at 86.
77. Id. Note that human accomplishments that do not specifically rely upon language can still be attributed to language. "Even in those cases in which no overt use of language can be detected, it can be argued that previous use has contributed to the skills or processes that are engaged." Evan Macphail, Intelligence: A Comparative Perspective, in MINDWAVES: THOUGHTS ON INTELLIGENCE, IDENTITY AND CONSCIOUSNESS 180 (C. Blakemore & S. Greenfield eds. 1987).
78. DEREK BICKERTON, LANGUAGE AND HUMAN BEHAVIOR 61 n.9 (1995).
79. PINKER, supra note 56, at 19.
80. ROGER BROWN, SOCIAL PSYCHOLOGY THE SECOND EDITION 464 (1986); Skinner, supra note 54, at 86.
81. ROGER BROWN, SOCIAL PSYCHOLOGY THE SECOND EDITION 464 (1986); Skinner, supra note 54, at 86.
82. CHARLES E. LINDBLOM, POLITICS AND MARKETS 52 (1977).
83. This represents the Madisonian view of the First Amendment. See SUNSTEIN, supra note 1, at xvi-xx. Because the Supreme Court has embraced the importance of free speech to self-government, Sunstein asserts that "there is a large degree of continuity between current practice and the original understanding of the First Amendment." Id. at xvi.
84. THE RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE 812 (unabridged ed. 1967).
85. Peter Meijes Tiersma, Nonverbal Communication and the Freedom of "Speech", 1993 WIS. L. REV. 1525, 1548. This is what Professor Pinker means when he states that "the essence of the language instinct" is "language conveys news." PINKER, supra note 56, at 83.
86. Peter Meijes Tiersma, Nonverbal Communication and the Freedom of "Speech", 1993 WIS. L. REV. 1525, 1548. This is what Professor Pinker means when he states that "the essence of the language instinct" is "language conveys news." PINKER, supra note 56, at 83.
87. PINKER, supra note 56, at 15.
88. As language makes human experiences cumulative, "society can . . . share the individual's awareness of environment and build its own collective understanding of cause and effect without having in each case to experience individually the step-by-step sequence of events." WALTER A. FAIRSERVIS, JR., THE THRESHOLD OF CIVILIZATION 28 (1976).
89. BROWN, supra note 66, at 464.
90. Structuralism understands "that language is more than a tool for man, but somehow constitutes a way of being which is specifically human." TAYLOR, supra note 57, at 244.
91. See infra notes 79-82 and accompanying text.
92. See "Language added an explicit form of self-reference . . . . The notions of 'I,' 'You,' and 'the other' emerged . . . ." ISRAEL ROSENFIELD, THE STRANGE, FAMILIAR, AND FORGOTTEN: AN ANATOMY OF CONSCIOUSNESS 119 (1992); See also infra notes 90-91 and accompanying text.
93. See TAYLOR, supra note 57, at 23 ("And this is a necessary feature of what we call a self or a person. He has reflection, evaluation and will.").
94. See infra notes 94-96 and accompanying text.
95. HENRI ELY, CONSCIOUSNESS: A PHENOMENOLOGICAL STUDY OF BEING CONSCIOUS AND BECOMING CONSCIOUS 16 (John H. Flodstrom trans., 1978). See also BICKERTON, supra note 53, at 216.
96. HENRI ELY, CONSCIOUSNESS: A PHENOMENOLOGICAL STUDY OF BEING CONSCIOUS AND BECOMING CONSCIOUS 16 (John H. Flodstrom trans., 1978). See also BICKERTON, supra note 53, at 216.
97. CURTIS G. SMITH, ANCESTRAL VOICES: LANGUAGE AND THE EVOLUTION OF HUMAN CONSCIOUSNESS 45 (1985) (emphasis in original). Smith refers to the "intimate relationship between language and consciousness." Id at 104. Cf. "Not surprisingly, the development of language has often been said to be the key to human consciousness." JOSEPH LEDOUX, THE EMOTIONAL BRAIN: THE MYSTERIOUS UNDERPINNINGS OF EMOTIONAL LIFE 30 (1996).
98. CURTIS G. SMITH, ANCESTRAL VOICES: LANGUAGE AND THE EVOLUTION OF HUMAN CONSCIOUSNESS 45 (1985) (emphasis in original). Smith refers to the "intimate relationship between language and consciousness." Id at 104. Cf. "Not surprisingly, the development of language has often been said to be the key to human consciousness." JOSEPH LEDOUX, THE EMOTIONAL BRAIN: THE MYSTERIOUS UNDERPINNINGS OF EMOTIONAL LIFE 30 (1996).
99. DONALD R. GRIFFIN, ANIMAL MINDS 10-11 (1992). The discussion that follows focuses on the operational functions of consciousness rather than its neurological basis.
100. Id. Cf. Daniel C. Dennett, Consciousness, in THE OXFORD COMPANION TO THE MIND 164 (Richard L. Gregory ed., 1987) ("It is a familiar theme in discussions of consciousness that human consciousness is somehow tied to our capacity for language, and is quite different from animal consciousness"). Professor Bickerton agrees: [T]he emergence of language is the direct and root cause of all those mental characteristics that distinguish us from other creatures, particularly our special kind of intelligence and our special kind of consciousness, which between them generate modes of behavior not merely unknown among other species but utterly remote from anything we can find in other species. BICKERTON, supra note 64, at 156.
101. See supra notes 79-80 and accompanying text.
102. Cf. "Our ability to tell ourselves a silent narrative about the future is the key to the modern conception of consciousness." WILLIAM H. CALVIN, THE RIVER THAT FLOWS UPHILL: A JOURNEY FROM THE BIG BANG TO THE BIG BRAIN 372 (1986).
103. ELY, supra note 79, at 17.
104. "Higher-order consciousness adds socially constructed selfhood to this picture of biological individuality." GERALD EDELMAN, BRIGHT AIR, BRILLIANT FIRE: ON THE MATTER OF MIND 125 (1992).
105. RESTAK, supra note 55, at 202. Cf. DONALD, supra note 59, at 202. ("From the viewpoint of cognitive science, the essence of language lies in the way it changed the fundamental structure of mind.").
106. RESTAK, supra note 55, at 202. Cf. DONALD, supra note 59, at 202. ("From the viewpoint of cognitive science, the essence of language lies in the way it changed the fundamental structure of mind.").
107. Cf. "[W]e learn to manipulate these symbols [words] to formulate things that don't yet exist but can be made to exist." RESTAK, supra note 55, at 216.
108. TAYLOR, supra note 57, at 244.
109. "Consciousness is the vehicle of our individuality, something that makes it of inestimable significance to us." B. J. BAARS, A COGNITIVE THEORY OF CONSCIOUSNESS 356 (1988). Cf. "Consciousness seems to imply free will, individuality - and with them, responsibility for one's actions." CALVIN, supra note 84, at 383. "Those things of which I am conscious, and the ways in which I am conscious of them, determine what it is like to be me." DENNETT, supra note 82, at 161 (emphasis in original). Higher order consciousness "involves the ability to construct a socially based selfhood, to model the world in terms of the past and the future, and to be directly aware." EDELMAN, supra note 86. "Consciousness - the dynamic integration of past, present, and self - is the ultimate expression of our individuality." ROSENFIELD, supra note 76, at 141.
110. The "self" may be defined as "the view of the person 'as a bounded, unique, more or less integrated motivational and cognitive universe, a dynamic center of awareness, emotion, judgment, and action, organized into a distinctive whole and set contrastively against such other wholes and against a social and natural background.'" JEROME BRUNNER, ACTS OF MEANING 114 (1990) (quoting Goertz).
111. And as Professor Taylor points out, this strong sense of selfness is intimately intertwined with language as an expressive activity: What comes to light in the full development of expressive power is precisely that what was striving for expression all along was the self. This may not have been so in the earlier ages of human history, when men were prone to see themselves simply as universal in a larger cosmos and not also as centers of autonomous will and desire. But as it comes to greater self-clarity, expression comes to be recognized as self-expression. TAYLOR, supra note 57, at 238.
112. From philosophical concepts of individual rights to practical legal concepts requiring "intent" or "will," our views of the human condition skew heavily toward what is here shown to be the largely language-derived "self." These views constitute what is termed "folk psychology." See infra note 117 and accompanying text.
113. NICHOLAS HUMPHREY, CONSCIOUSNESS REGAINED 43 (1983).
114. As Professor Taylor states: Language articulates our feelings, makes them clearer and more defined; and in this way transforms our sense of the imports involved; and hence transforms the feeling. The reason why coming to recognize that "I love her" or "I'm jealous" alters the emotion is that this kind of self-articulacy is essential to that kind of love and jealously. The avowal is constitutive of this feeling. TAYLOR, supra note 57, at 71 (emphasis in original).
115. TAYLOR, supra note 7, at 375.
116. TAYLOR, supra note 57, at 229.
117. See generally CLINICAL APPLICATIONS OF RATIONAL EMOTIVE THERAPY (Albert Ellis & Michael E. Benard eds., 1985); ALBERT ELLIS & WENDY DRYDEN, THE PRACTICE OF RATIONAL EMOTIVE THERAPY (1987). This talking therapy dramatically illustrates the point that language use is constitutive of the way we feel about and experience the world. Language use shapes our being in the world, even the emotions that we experience.
118. See generally CLINICAL APPLICATIONS OF RATIONAL EMOTIVE THERAPY (Albert Ellis & Michael E. Benard eds., 1985); ALBERT ELLIS & WENDY DRYDEN, THE PRACTICE OF RATIONAL EMOTIVE THERAPY (1987). This talking therapy dramatically illustrates the point that language use is constitutive of the way we feel about and experience the world. Language use shapes our being in the world, even the emotions that we experience.
119. TAYLOR, supra note 57, at 234. Referring to the language possessor, Taylor adds: "His understanding is explicated at any time in the language he uses to speak about himself, his goals, what he feels, and so on, and in shaping his sense of what is important it also shapes what he feels." Id. at 74.
120. "All the evidence that archeology offers us of language practices is found in social systems, and consequently is of a communicative nature. 'Man speaks' and 'man is a social animal' are both tautologies, as well as synonymous propositions." JULIA KRISTEA, LANGUAGE THE UNKNOWN: AN INITIATION INTO LINGUISTICS 7 (A. Menke trans. 1989). "Language is the ultimate social arbiter. It is used for watching the activities of others, keeping records of interpersonal relationships, regulating interactions, coordinating people, sharing practical knowledge like food sources and neighboring human tribes, and making collective plans and decisions." DONALD, supra note 59, at 213.
121. See infra notes 112-113 and accompanying text.
122. PINKER, supra note 56, at 17.
123. "Communication of meaning by gesture, expression, voice, and, at a later point, formal language, is an inherently social process. Language, therefore, is linked with culture, socialization, the cooperative search for knowledge, indeed cooperative ventures of all kinds." RESTAK, supra note 55, at 211.
124. GRIFFIN, supra note 81, at 260. See also HUMPHREY, supra note 94, at 35; KRISTEA, supra note 100, at 7; RICHARD LEAKEY & ROGER LEWIN, ORIGINS RECONSIDERED: IN SEARCH OF WHAT MAKES US HUMAN 292 (1992).
125. GRIFFIN, supra note 81, at 260. See also HUMPHREY, supra note 94, at 35; KRISTEA, supra note 100, at 7; RICHARD LEAKEY & ROGER LEWIN, ORIGINS RECONSIDERED: IN SEARCH OF WHAT MAKES US HUMAN 292 (1992).
126. GRIFFIN, supra note 81, at 260. See also HUMPHREY, supra note 94, at 35; KRISTEA, supra note 100, at 7; RICHARD LEAKEY & ROGER LEWIN, ORIGINS RECONSIDERED: IN SEARCH OF WHAT MAKES US HUMAN 292 (1992).
127. GRIFFIN, supra note 81, at 260. See also HUMPHREY, supra note 94, at 35; KRISTEA, supra note 100, at 7; RICHARD LEAKEY & ROGER LEWIN, ORIGINS RECONSIDERED: IN SEARCH OF WHAT MAKES US HUMAN 292 (1992).
128. HUMPHREY, supra note 94, at 53.
129. If you look at language in its natural use, you find that it's used for cheating people, for persuading, for giving information in an honest way about a task that interests people. But it's also used for creating affection, antagonizing people, and gaining power. In all these instances, humans are essentially sharing consciousness. RESTAK, supra note 55, at 211.
130. E.g., BROWN, supra note 66, at 443 ("A symbol is a token that is associated with and represents a referent on the basis of arbitrary convention."); J.N. Hattingadi, HOW IS LANGUAGE POSSIBLE?: PHILOSOPHICAL REFLECTIONS ON THE EVOLUTION OF LANGUAGE AND KNOWLEDGE 4 (1987) ("Thus, one may use words idiosyncratically, but what words themselves mean depends on what people generally use them for."); David F. Pears, Wittgenstein's Philosophy of Language, in THE OXFORD COMPANION TO THE MIND 813 (Richard Gregory ed., 1987) ("The contract that keeps the meaning of a word the same for different people is public and part of the life they live together.").
131. E.g., BROWN, supra note 66, at 443 ("A symbol is a token that is associated with and represents a referent on the basis of arbitrary convention."); J.N. Hattingadi, HOW IS LANGUAGE POSSIBLE?: PHILOSOPHICAL REFLECTIONS ON THE EVOLUTION OF LANGUAGE AND KNOWLEDGE 4 (1987) ("Thus, one may use words idiosyncratically, but what words themselves mean depends on what people generally use them for."); David F. Pears, Wittgenstein's Philosophy of Language, in THE OXFORD COMPANION TO THE MIND 813 (Richard Gregory ed., 1987) ("The contract that keeps the meaning of a word the same for different people is public and part of the life they live together.").
132. E.g., BROWN, supra note 66, at 443 ("A symbol is a token that is associated with and represents a referent on the basis of arbitrary convention."); J.N. Hattingadi, HOW IS LANGUAGE POSSIBLE?: PHILOSOPHICAL REFLECTIONS ON THE EVOLUTION OF LANGUAGE AND KNOWLEDGE 4 (1987) ("Thus, one may use words idiosyncratically, but what words themselves mean depends on what people generally use them for."); David F. Pears, Wittgenstein's Philosophy of Language, in THE OXFORD COMPANION TO THE MIND 813 (Richard Gregory ed., 1987) ("The contract that keeps the meaning of a word the same for different people is public and part of the life they live together.").
133. EDELMAN, supra note 86, at 146.
134. Noam Chomsky, Language: Chomsky's Theory, in THE OXFORD COMPANION TO THE MIND 420 (Richard Gregory ed., 1987).
135. TAYLOR, supra note 57, at 259.
136. Id.
137. TAYLOR, supra note 7, at 33.
138. TAYLOR, supra note 57, at 261. In other words, the capacity for individual moral determination comes out of the type of language-based consciousness enabled by our social relations.
139. Id. at 36. What this means is that the community "is not simply an aggregation of individuals; nor is it simply a casual interaction between the two. The community is also constitutive of the individual, in the sense that the self-interpretations which define him are drawn from the interchange which the community carries on. A human being alone is an impossibility not just de facto, but as it were de jure." Id. at 8.
140. Id. at 36.
141. ADLER, supra note 61, at 269. "A person must be a being with his own point of view on things. The life-plan, the choices, the sense of self must be attributable to him as in some sense their point of origin. A person is a being who can be addressed, and who can reply." TAYLOR, supra note 57, at 97.
142. ADLER, supra note 61, at 269. "A person must be a being with his own point of view on things. The life-plan, the choices, the sense of self must be attributable to him as in some sense their point of origin. A person is a being who can be addressed, and who can reply." TAYLOR, supra note 57, at 97.
143. The view of the agentive self, the "person," as an entity capable of free moral determination and legal accountability is a type of "folk psychology." G. WILLIAM FARTHING, THE PSYCHOLOGY OF CONSCIOUSNESS 528 (1992). See also David Hodgson, Neuroscience and Folk Psychology: An Overview, J. CONSCIOUSNESS STUDIES, No. 2, 1994, at 205. As Jerome Brunner observes: "At their core, all folk psychologies contain a surprisingly complex notion of an agentive Self." BRUNNER, supra note 91, at 41. The self is seen as having certain rights, but equally importantly, it has responsibilities and accountability. The self becomes a perspective of moral control exerted by the community through social relations. Because individuals possess a "self," they can be held to answer legally for their actions, and the self arises through the consciousness articulated by the language community. Ultimately, the autonomy of consciousness maximizes both the growth of self and the language community's legal and moral control over the self, and autonomy of consciousness is virtually synonymous with freedom of speech.
144. The view of the agentive self, the "person," as an entity capable of free moral determination and legal accountability is a type of "folk psychology." G. WILLIAM FARTHING, THE PSYCHOLOGY OF CONSCIOUSNESS 528 (1992). See also David Hodgson, Neuroscience and Folk Psychology: An Overview, J. CONSCIOUSNESS STUDIES, No. 2, 1994, at 205. As Jerome Brunner observes: "At their core, all folk psychologies contain a surprisingly complex notion of an agentive Self." BRUNNER, supra note 91, at 41. The self is seen as having certain rights, but equally importantly, it has responsibilities and accountability. The self becomes a perspective of moral control exerted by the community through social relations. Because individuals possess a "self," they can be held to answer legally for their actions, and the self arises through the consciousness articulated by the language community. Ultimately, the autonomy of consciousness maximizes both the growth of self and the language community's legal and moral control over the self, and autonomy of consciousness is virtually synonymous with freedom of speech.
145. The view of the agentive self, the "person," as an entity capable of free moral determination and legal accountability is a type of "folk psychology." G. WILLIAM FARTHING, THE PSYCHOLOGY OF CONSCIOUSNESS 528 (1992). See also David Hodgson, Neuroscience and Folk Psychology: An Overview, J. CONSCIOUSNESS STUDIES, No. 2, 1994, at 205. As Jerome Brunner observes: "At their core, all folk psychologies contain a surprisingly complex notion of an agentive Self." BRUNNER, supra note 91, at 41. The self is seen as having certain rights, but equally importantly, it has responsibilities and accountability. The self becomes a perspective of moral control exerted by the community through social relations. Because individuals possess a "self," they can be held to answer legally for their actions, and the self arises through the consciousness articulated by the language community. Ultimately, the autonomy of consciousness maximizes both the growth of self and the language community's legal and moral control over the self, and autonomy of consciousness is virtually synonymous with freedom of speech.
146. Note that the type of consciousness being referred to is higher-order prepositional consciousness, not the perceptual consciousness possessed by all animals.
147. TAYLOR, supra note 57, at 218-29.
148. Id. at 230-60.
149. Id. at 231 (citing Humbolt). The founder of general semantics, Alfred Korzybski, illustrates this web with a procedure used on one who inquires into word meanings: We begin by asking the "meaning" of every word uttered, being satisfied for this purpose with the roughest definitions; then we ask the "meaning" of the words used in the definitions, and this process is continued usually for no more than ten or fifteen minutes, until the victim begins to speak in circles - as, for instance, defining "space" by "length" and "length" by "space." ALFRED KORZYBSKI, SELECTIONS FROM SCIENCE AND SANITY 21 (1948).
150. This example is found in TAYLOR, supra note 57, at 230. Cf.: We see that language is no longer an assemblage of words, but the capacity to speak (express/realize) the reflective awareness implicit in using words to say something. Learning to use any single word presupposes this general capacity as background. But to have the general capacity is to possess a whole of language as the background for the introduction of any of its parts, that is individual words. Id.
151. E.g., in mathematics consider Godel's Theorem. An explanation of Godel's Theorem accessible to the non-mathematician can be found in DOUGLAS R. HOFSTADTER, GODEL, ESCHER, BACH: AN ETERNAL GOLDEN BRAID 17-18 (1979). Importantly, that mathematics, our most exact science, cannot provide a self-contained objective view of reality does "not destroy the usefulness of axiomatic, deductive systems." John Strick, Can Nihilism Be Pragmatic, 100 HARV. L. REV. 332, 336 (1986). Science has a pragmatic value even if it cannot completely describe things.
152. E.g., in mathematics consider Godel's Theorem. An explanation of Godel's Theorem accessible to the non-mathematician can be found in DOUGLAS R. HOFSTADTER, GODEL, ESCHER, BACH: AN ETERNAL GOLDEN BRAID 17-18 (1979). Importantly, that mathematics, our most exact science, cannot provide a self-contained objective view of reality does "not destroy the usefulness of axiomatic, deductive systems." John Strick, Can Nihilism Be Pragmatic, 100 HARV. L. REV. 332, 336 (1986). Science has a pragmatic value even if it cannot completely describe things.
153. See, e.g., Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989) ("Music, as a form of expression and communication, is protected under the First Amendment.").
154. See generally O. Lee Reed, Should the First Amendment Protect Joe Camel: Toward an Understanding of Constitutional "Expression", 32 AM. BUS. L. J. 311 (1995).
155. [M]uch of the Romantic view of language has come to be generally accepted by both . . . objectivists and their opponents. We now see language capacity as residing in the possession of an interconnected lexicon, only one part of which is used at any time. We see that the individual term is defined in relation to others. Ferdinand de Saussure made this point at the beginning of the century, and it is now common property. TAYLOR, supra note 57, at 240.
156. See generally GLENDON, supra note 10; MICHAEL J. SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE (1982); Stanley Ingber, Rediscovering the Communal Worth of Individual Rights: The First Amendment in Institutional Contexts, 69 TEX. L. REV. 1 (1990); David M. Rabban, Free Speech in Progressive Social Thought, 74 TEX. L. REV. 951 (1996).
157. See generally GLENDON, supra note 10; MICHAEL J. SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE (1982); Stanley Ingber, Rediscovering the Communal Worth of Individual Rights: The First Amendment in Institutional Contexts, 69 TEX. L. REV. 1 (1990); David M. Rabban, Free Speech in Progressive Social Thought, 74 TEX. L. REV. 951 (1996).
158. See generally GLENDON, supra note 10; MICHAEL J. SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE (1982); Stanley Ingber, Rediscovering the Communal Worth of Individual Rights: The First Amendment in Institutional Contexts, 69 TEX. L. REV. 1 (1990); David M. Rabban, Free Speech in Progressive Social Thought, 74 TEX. L. REV. 951 (1996).
159. See generally GLENDON, supra note 10; MICHAEL J. SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE (1982); Stanley Ingber, Rediscovering the Communal Worth of Individual Rights: The First Amendment in Institutional Contexts, 69 TEX. L. REV. 1 (1990); David M. Rabban, Free Speech in Progressive Social Thought, 74 TEX. L. REV. 951 (1996).
160. From this perspective consider the following: "We cannot want to forbid dialogue about anything spoken or written in a human language, unless we want to eliminate the search for the purpose and understanding of what is said." Paul G. Chevigny, Free Speech, 55 N.Y.U. L. REV. 157, 177 (1980).
161. E.g., "It is a fundamental principle, long established, that the freedom of speech and of the press which is secured by the Constitution, does not confer an absolute right to speak or publish, without responsibility, whatever one may choose . . . ." Gitlow v. New York, 268 U.S. 652, 666 (1925). See also Board of County Comm'rs v. Umbehr, 116 S. Ct. 2342, 2345 (1996), Kingsley Books, Inc. v. Brown, 354 U.S. 436, 441 (1957); Breard v. Alexandria, 341 U.S. 622, 642 (1951); Chaplinsky v. New Hampshire, 315 U.S. 568, 571 (1942); Whitney v. California, 274 U.S. 357, 371 (1927). As Justice Frankfurter observed: It were far better that the phrase [freedom of speech] be abandoned than it be sounded once more to hide from the believers in an absolute right of free speech the plain fact that the interest in speech, profoundly important as it is, is no more in judicial review than other attributes of democracy or a determination of the people's representatives that a measure is necessary to assure the safety of government itself. Dennis v. United States, 341 U.S. 494, 544 (1951) (Frankfurter, J., concurring).
162. So generally accepted are these various crimes, torts, and contractual defenses, we seldom pause to consider that they all involve speech suppression. Yet, why does the First Amendment not protect this speech? To assert that this speech has "low value" (or "no value") is to beg the question. Likewise, to claim that this speech is harmful provides no adequate answer until we have established a basis for understanding what harm is and under what circumstances it negates First Amendment speech protection.
163. See supra notes 121-122 and accompanying text.
164. See Mill, supra note 11, at 271.
165. E.g., New York v. Ferber, 458 U.S. 747 (1982) (holding materials produced through sexual exploitation of children not First Amendment protected).
166. For a related application of the term property, see John O. McGinnis, The Once and Future Property - Based Vision of the First Amendment, 63 U. CHI. L. REV. 49, 51 n.8 (1996).
167. In the Western legal system, rights, including self rights, are considered quasi-possessions of the individual. See TAYLOR, supra note 7, at 11.
168. "[E]very man has a property in his own person [cf. 'self'] . . . ." John Locke, Concerning Civil Government, Second Essay, in 35 GREAT BOOKS OF THE WESTERN WORLD 25, 30 (Robert Maynard Hutchins ed., 1952).
169. See supra notes 90-93 and accompanying text.
170. Frederick Schauer, Speaking of Dignity, in THE CONSTITUTION OF RIGHTS 181 (M. Mayer and W. Parent eds., 1992).
171. Speech that presents a clear and present danger harms the language community's autonomy of consciousness in much the same way that duress harms the individuals self's autonomy of consciousness, i.e., it threatens to take away the right of possession. The language community rightfully possesses its government in exactly the same way the self rightfully possesses physical integrity or real and personal property. Likewise, public graffiti and blocking traffic harm the language community's autonomy of consciousness much as does trespass for speech purposes on the individual self's private property.
172. GREENAWALT, supra note 51, at 143.
173. 42 U.S.C. § 2000e-2 (a)(1) (1988).
174. For cases illustrating such language (or pictures), see Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993); Galloway v. GM Service Parts Operations, 78 F.3d 1164 (7th Cir. 1996); Gross v. Burggraf Const. Co., 53 F. 3d 1531 (10th Cir. 1995); Rabidue v. Osceola Refining Co., 805 F.2d 611 (6th Cir. 1986).
175. See generally James H. Fowles III, Hostile Environment and the First Amendment: What Now After Harris and St. Paul?, 46 S.C. L. REV. 471 (1995); Jules B. Gerard, The First Amendment in a Hostile Environment: A Primer on Free Speech and Sexual Harassment, 68 NOTRE DAME L. REV. 1003 (1993); Nadine Strossen, The Tensions Between Regulating Workplace Harassment and the First Amendment: No Trump, 71 CHI.-KENT L. REV. 701 (1995); Eugene Volokh, Thinking Ahead About Freedom of Speech and Hostile Work Environment Harassment, 17 BERKELEY J. EMP. & LAB. L. 305 (1996).
176. See generally James H. Fowles III, Hostile Environment and the First Amendment: What Now After Harris and St. Paul?, 46 S.C. L. REV. 471 (1995); Jules B. Gerard, The First Amendment in a Hostile Environment: A Primer on Free Speech and Sexual Harassment, 68 NOTRE DAME L. REV. 1003 (1993); Nadine Strossen, The Tensions Between Regulating Workplace Harassment and the First Amendment: No Trump, 71 CHI.-KENT L. REV. 701 (1995); Eugene Volokh, Thinking Ahead About Freedom of Speech and Hostile Work Environment Harassment, 17 BERKELEY J. EMP. & LAB. L. 305 (1996).
177. See generally James H. Fowles III, Hostile Environment and the First Amendment: What Now After Harris and St. Paul?, 46 S.C. L. REV. 471 (1995); Jules B. Gerard, The First Amendment in a Hostile Environment: A Primer on Free Speech and Sexual Harassment, 68 NOTRE DAME L. REV. 1003 (1993); Nadine Strossen, The Tensions Between Regulating Workplace Harassment and the First Amendment: No Trump, 71 CHI.-KENT L. REV. 701 (1995); Eugene Volokh, Thinking Ahead About Freedom of Speech and Hostile Work Environment Harassment, 17 BERKELEY J. EMP. & LAB. L. 305 (1996).
178. See generally James H. Fowles III, Hostile Environment and the First Amendment: What Now After Harris and St. Paul?, 46 S.C. L. REV. 471 (1995); Jules B. Gerard, The First Amendment in a Hostile Environment: A Primer on Free Speech and Sexual Harassment, 68 NOTRE DAME L. REV. 1003 (1993); Nadine Strossen, The Tensions Between Regulating Workplace Harassment and the First Amendment: No Trump, 71 CHI.-KENT L. REV. 701 (1995); Eugene Volokh, Thinking Ahead About Freedom of Speech and Hostile Work Environment Harassment, 17 BERKELEY J. EMP. & LAB. L. 305 (1996).
179. Deborah Epstein, Can a Dumb Ass Woman Achieve Equality in the Workplace? Running the Gauntlet of Hostile Environment Harassing Speech, 84 GEORGETOWN L. J. 399 (1996). Aileen Kent, First Amendment Defense to Hostile Environment Sexual Harassment: Does Discriminatory Conduct Deserve Constitutional Protection?, 23 HOFSTRA L. REV. 513 (1994); Benjamin Oppenheimer, Workplace Harassment and the First Amendment: A Reply to Professor Volokh, 17 BERKELEY J. EMP. & LAB. L. 321 (1996); Jessica M. Warner, Political Speech, Sexual Harassment, and a Captive Audience, 83 CAL. L. REV. 637 (1995).
180. Deborah Epstein, Can a Dumb Ass Woman Achieve Equality in the Workplace? Running the Gauntlet of Hostile Environment Harassing Speech, 84 GEORGETOWN L. J. 399 (1996). Aileen Kent, First Amendment Defense to Hostile Environment Sexual Harassment: Does Discriminatory Conduct Deserve Constitutional Protection?, 23 HOFSTRA L. REV. 513 (1994); Benjamin Oppenheimer, Workplace Harassment and the First Amendment: A Reply to Professor Volokh, 17 BERKELEY J. EMP. & LAB. L. 321 (1996); Jessica M. Warner, Political Speech, Sexual Harassment, and a Captive Audience, 83 CAL. L. REV. 637 (1995).
181. Deborah Epstein, Can a Dumb Ass Woman Achieve Equality in the Workplace? Running the Gauntlet of Hostile Environment Harassing Speech, 84 GEORGETOWN L. J. 399 (1996). Aileen Kent, First Amendment Defense to Hostile Environment Sexual Harassment: Does Discriminatory Conduct Deserve Constitutional Protection?, 23 HOFSTRA L. REV. 513 (1994); Benjamin Oppenheimer, Workplace Harassment and the First Amendment: A Reply to Professor Volokh, 17 BERKELEY J. EMP. & LAB. L. 321 (1996); Jessica M. Warner, Political Speech, Sexual Harassment, and a Captive Audience, 83 CAL. L. REV. 637 (1995).
182. Deborah Epstein, Can a Dumb Ass Woman Achieve Equality in the Workplace? Running the Gauntlet of Hostile Environment Harassing Speech, 84 GEORGETOWN L. J. 399 (1996). Aileen Kent, First Amendment Defense to Hostile Environment Sexual Harassment: Does Discriminatory Conduct Deserve Constitutional Protection?, 23 HOFSTRA L. REV. 513 (1994); Benjamin Oppenheimer, Workplace Harassment and the First Amendment: A Reply to Professor Volokh, 17 BERKELEY J. EMP. & LAB. L. 321 (1996); Jessica M. Warner, Political Speech, Sexual Harassment, and a Captive Audience, 83 CAL. L. REV. 637 (1995).
183. "Above all else, the First Amendment means that a government has no power to restrict expression because of its ideas, its subject matter, or its content." Police Dept. v. Mosley, 408 U.S. 92, 95 (1972). See also R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).
184. See, e.g., Wayne Lindsey Robbins, Jr., When Two Liberal Values Collide in an Era of "Political Correctness": First Amendment Protection as a Check on Speech-Based Title VII Hostile Environment Claims, 47 BAYLOR L. REV. 789 (1995); Strossen, supra note 143.
185. See, e.g., Wayne Lindsey Robbins, Jr., When Two Liberal Values Collide in an Era of "Political Correctness": First Amendment Protection as a Check on Speech-Based Title VII Hostile Environment Claims, 47 BAYLOR L. REV. 789 (1995); Strossen, supra note 143.
186. See, e.g., Robbins, supra note 146; Gerard, supra note 143. A good general discussion of overbreadth and vagueness can be found in MELVILLE B. NIMMER, NIMMER ON FREEDOM OF SPEECH: A TREATISE ON THE THEORY OF THE FIRST AMENDMENT § 4.11 (1984).
187. See, e.g., Robbins, supra note 146; Gerard, supra note 143. A good general discussion of overbreadth and vagueness can be found in MELVILLE B. NIMMER, NIMMER ON FREEDOM OF SPEECH: A TREATISE ON THE THEORY OF THE FIRST AMENDMENT § 4.11 (1984).
188. See, e.g., Robbins, supra note 146; Gerard, supra note 143. A good general discussion of overbreadth and vagueness can be found in MELVILLE B. NIMMER, NIMMER ON FREEDOM OF SPEECH: A TREATISE ON THE THEORY OF THE FIRST AMENDMENT § 4.11 (1984).
189. The seminal case permitting incidental free speech restriction is United States v. OBrien, 391 U.S. 367, 376-77 (1968) (holding abridgment of free speech only an incidental effect of government's prohibiting draft card destruction).
190. 510 U.S. 17 (1993).
191. Id. at 19.
192. Id. at 21 (quoting Meritor Savings Bank v. Vinson, 477 U.S. 57, 65 67 (1986)).
193. A discussion of the speech-conduct cases is found in Reed, supra note 125.
194. Harris, 510 U.S. at 21-23.
195. On the difficulty, however, of distinguishing conduct from expression see Tiersma, supra note 70, at 1526. Even threats and frauds involve speech and the fact that courts do not usually recognize the First Amendment implications of prohibiting these forms of speech supports the view that the courts are concerned (albeit, unwittingly) about the harm to autonomy of consciousness caused by threats and frauds.
196. See, e.g., Warner, supra note 144.
197. See NIMMER, supra note 147, at § 1.02 [F] [2] [d].
198. E.g., Austin v. Michigan State Chamber of Commerce, 494 U.S. 652, 657 (1990); Buckley v. Valeo, 424 U.S. 1, 44-45 (1976).
199. For cites see Justice Stevens' plurality opinion in Young v. American Mini Theaters, Inc., 427 U.S. 50, 65-70 (1976). See also R.A.V. v. City of St. Paul, 505 U.S. 377, 399-400 (1992) (White, J., concurring).
200. See the discussion in Reed, supra note 3 at 28-30.
201. 477 U.S. 57, 67 (1986).
202. Id. at 66.
203. 510 U.S. 17, 22 (1993).
204. Id. at 21.
205. Id. at 22.
206. 505 U.S. 377 (1992).
207. Id.
208. Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993); Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986).
209. Although there is no generally recognized possessive right to a job, the increase in wrongful discharge cases suggests a quasi-possessive right to a job. In much of Europe, employees have rights in their jobs, and in the United States the National Labor Relations Act grants employees certain job rights, including the right not to have employers unduly interfere with the employees efforts to unionize by threatening employees' job security through speech. 29 U.S.C. § 158 (a) (1) (5) (1994). Nor can employers speak to massed employees on company time within twenty-four hours of a collective bargaining representation election. Id. See also N.L.R.B. v. Nixon Gear, Inc., 649 F.2d 906, 911 (2nd Cir. 1981).
210. 425 U.S. 748 (1976).
211. "As to the particular consumer's interest in the free flow of commercial information, that interest may be as keen, if not keener by far, than his interest in the day's most urgent political debate." Id. at 763.
212. Id.
213. Shapero v. Kentucky Bar Assoc., 486 U.S. 466 (1988); In re R.M.J., 455 U.S. 191 (1982); Bates v. State Bar, 433 U.S. 350 (1977).
214. Linmark Assoc., Inc. v. Township of Willingsboro, 431 U.S. 85 (1977).
215. Edenfield v. Fane, 507 U.S. 761 (1993).
216. Central Hudson v. Public Serv. Comm'n, 447 U.S. 557, 564 (1979).
217. Ohralik v. Ohio State Bar, 436 U.S. 447 (1978).
218. Friedman v. Rogers, 440 U.S. 1, 13 (1979).
219. E.g., Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982) (Government can regulate advertising encouraging illegal drug use.).
220. Professor Greenawalt lists twenty-one different types of crimes that "critically involve communication." GREENAWALT, supra note 51, at 7. Many tort harms like assault and defamation also focus on speech and its content.
221. The regulations are codified at 21 C.F.R. § 897 (1996). In an article written in 1995, I specifically predicted the likelihood of such regulations. Reed, supra note 125, at 312 n.3. ("The current concern over the primarily nonverbal images of cigarette advertising suggests it is in this area that the government may next attempt to restrict nonverbal expressive conduct, thus provoking a freedom of expression challenge from affected advertisers.").
222. "No manufacturer, distributor, or retailer may sponsor or cause to be sponsored any athletic, musical, artistic, and other social or cultural event, or any entry or team in any event, in the brand name (alone or in conjunction with any other word), logo, symbol, motto, selling message, recognizable color or pattern of colors, or any other indicia of product identification identical or similar to or identifiable with, those used for any brand of cigarettes or smokeless tobacco." 21 C.F.R. § 897.34(c) (1996).
223. "No outdoor advertising for cigarettes or smokeless tobacco, including billboards, posters, or placards, may be placed within 1,000 feet of the perimeter of any public playground or playground area in a public park . . . , elementary school, or secondary school." 21 C.F.R.§ 897.30(b) (1996).
224. "Except as provided in paragraph (b) of this section, each manufacturer, distribution, and retailer advertising or causing to be advertised, disseminating or causing to be disseminated, any labeling or advertising for cigarettes or smokeless tobacco shall use only black text on a white background." 81 C.F.R. § 897.32(a) (1996).
225. Id. at § 897.32(a)(2) (creating an exception for magazines with eighty-five percent adult readership).
226. John D. Pierce et al., Trends in Cigarette Smoking in the United States, Projections to the Year 2000, 261 JAMA 61, 64 (1989).
227. The average age of becoming a daily smoker is 17.7 years. DEPT. OF HEALTH AND HUMAN SERVICES, PREVENTING TOBACCO USE AMONG YOUNG PEOPLE: A REPORT OF THE SURGEON GENERAL 58 (1994).
228. 60 Fed. Reg. 41, 338 (1995).
229. See generally Martin H. Redish, Tobacco Advertising and the First Amendment, 81 IOWA L. REV. 589 (1996); Jef I. Richards, Politicizing Cigarette Advertising, 45 CATH. U. L. REV. 1147 (1996); Mark R. Ludwikowski, Comment, Proposed Government Regulation of Tobacco Advertising Uses Teens to Disguise First Amendment Violations, 4 COMM. LAW CONSPECTUS 105 (1996). Tobacco companies challenged the FDA's regulations in Coyne Beahm, Inc. v. FDA, 966 F. Supp. 1374 (M.D.N.C. 1997). The district court determined that the FDA lacked regulatory authority to regulate cigarette advertising generally, but the court declined to determine the First Amendment issues. Id. at 1400 n. 33.
230. See generally Martin H. Redish, Tobacco Advertising and the First Amendment, 81 IOWA L. REV. 589 (1996); Jef I. Richards, Politicizing Cigarette Advertising, 45 CATH. U. L. REV. 1147 (1996); Mark R. Ludwikowski, Comment, Proposed Government Regulation of Tobacco Advertising Uses Teens to Disguise First Amendment Violations, 4 COMM. LAW CONSPECTUS 105 (1996). Tobacco companies challenged the FDA's regulations in Coyne Beahm, Inc. v. FDA, 966 F. Supp. 1374 (M.D.N.C. 1997). The district court determined that the FDA lacked regulatory authority to regulate cigarette advertising generally, but the court declined to determine the First Amendment issues. Id. at 1400 n. 33.
231. See generally Martin H. Redish, Tobacco Advertising and the First Amendment, 81 IOWA L. REV. 589 (1996); Jef I. Richards, Politicizing Cigarette Advertising, 45 CATH. U. L. REV. 1147 (1996); Mark R. Ludwikowski, Comment, Proposed Government Regulation of Tobacco Advertising Uses Teens to Disguise First Amendment Violations, 4 COMM. LAW CONSPECTUS 105 (1996). Tobacco companies challenged the FDA's regulations in Coyne Beahm, Inc. v. FDA, 966 F. Supp. 1374 (M.D.N.C. 1997). The district court determined that the FDA lacked regulatory authority to regulate cigarette advertising generally, but the court declined to determine the First Amendment issues. Id. at 1400 n. 33.
232. See generally Martin H. Redish, Tobacco Advertising and the First Amendment, 81 IOWA L. REV. 589 (1996); Jef I. Richards, Politicizing Cigarette Advertising, 45 CATH. U. L. REV. 1147 (1996); Mark R. Ludwikowski, Comment, Proposed Government Regulation of Tobacco Advertising Uses Teens to Disguise First Amendment Violations, 4 COMM. LAW CONSPECTUS 105 (1996). Tobacco companies challenged the FDA's regulations in Coyne Beahm, Inc. v. FDA, 966 F. Supp. 1374 (M.D.N.C. 1997). The district court determined that the FDA lacked regulatory authority to regulate cigarette advertising generally, but the court declined to determine the First Amendment issues. Id. at 1400 n. 33.
233. Of course, there are various recognized exceptions to minors' lack of legal capacity.
234. How the largely nonverbal displays of contemporary advertising induce nonconscious changes in feelings and attitudes toward products and services is discussed throughout O. Lee Reed & Douglas Whitman, A Constitutional and Policy-Related Evaluation of Prohibiting the Uses of Certain Nonverbal Techniques in Legal Advertising, 1988 B.Y.U. L. REV. 265.
235. See O. Lee Reed, Reading the Tea Leaves: Future Regulation of Product Extrinsic Advertising, 33 BUS. HORIZONS 88 (Sept.-Oct. 1990).
236. Outlook, U.S. NEWS & WORLD REP., Nov. 25, 1996, at 24.
237. See notes 80, 82 and accompanying text. See also Reed, supra note 125, at 343 n.137 and accompanying text. "[A]t least in a language-using system, it is generally held that information is conscious if it is reportable [i.e., can be verbalized]. Reportability is a version of awareness - when information is reportable, it is always available for control . . . ." DAVID T. CHALMERS, THE CONSCIOUS MIND: IN SEARCH OF A FUNDAMENTAL THEORY 237 (1996).
238. See notes 80, 82 and accompanying text. See also Reed, supra note 125, at 343 n.137 and accompanying text. "[A]t least in a language-using system, it is generally held that information is conscious if it is reportable [i.e., can be verbalized]. Reportability is a version of awareness - when information is reportable, it is always available for control . . . ." DAVID T. CHALMERS, THE CONSCIOUS MIND: IN SEARCH OF A FUNDAMENTAL THEORY 237 (1996).
239. See A. G. Greenwald & Clark Leavitt, Audience Involvement in Advertising: Four Levels, 11 J. CONSUMER RES. 581 (1984); Andrew A. Mitchell, The Dimensions of Advertising Involvement, 8 ADVANCES IN CONSUMER RES. 25 (1981); C. Whan Park & S. Mark Young, Consumer Response to Television Commercials: The Impact of Involvement and Background Music on Brand Attitude Formation, 23 J. MARKETING RES. 11 (1986); Richard E. Petty, Central and Peripheral Routes to Advertising Effectiveness: The Moderating Role of Involvement, 10 J. CONSUMER RES. 135 (1983).
240. See A. G. Greenwald & Clark Leavitt, Audience Involvement in Advertising: Four Levels, 11 J. CONSUMER RES. 581 (1984); Andrew A. Mitchell, The Dimensions of Advertising Involvement, 8 ADVANCES IN CONSUMER RES. 25 (1981); C. Whan Park & S. Mark Young, Consumer Response to Television Commercials: The Impact of Involvement and Background Music on Brand Attitude Formation, 23 J. MARKETING RES. 11 (1986); Richard E. Petty, Central and Peripheral Routes to Advertising Effectiveness: The Moderating Role of Involvement, 10 J. CONSUMER RES. 135 (1983).
241. See A. G. Greenwald & Clark Leavitt, Audience Involvement in Advertising: Four Levels, 11 J. CONSUMER RES. 581 (1984); Andrew A. Mitchell, The Dimensions of Advertising Involvement, 8 ADVANCES IN CONSUMER RES. 25 (1981); C. Whan Park & S. Mark Young, Consumer Response to Television Commercials: The Impact of Involvement and Background Music on Brand Attitude Formation, 23 J. MARKETING RES. 11 (1986); Richard E. Petty, Central and Peripheral Routes to Advertising Effectiveness: The Moderating Role of Involvement, 10 J. CONSUMER RES. 135 (1983).
242. See A. G. Greenwald & Clark Leavitt, Audience Involvement in Advertising: Four Levels, 11 J. CONSUMER RES. 581 (1984); Andrew A. Mitchell, The Dimensions of Advertising Involvement, 8 ADVANCES IN CONSUMER RES. 25 (1981); C. Whan Park & S. Mark Young, Consumer Response to Television Commercials: The Impact of Involvement and Background Music on Brand Attitude Formation, 23 J. MARKETING RES. 11 (1986); Richard E. Petty, Central and Peripheral Routes to Advertising Effectiveness: The Moderating Role of Involvement, 10 J. CONSUMER RES. 135 (1983).
243. Believing that we know why we feel and act as we do, we tend to disregard the nature and effect of influences that reach us below the level of propositional consciousness. See generally K. S. Bowers, On Being Unconsciously Influenced and Informed, in THE UNCONSCIOUS RECONSIDERED 263 (K. Bowers & D. Meichenbaum eds., 1984). Such influences do affect us, however, and likely constitute the major impact of pictorial advertising graphics.
244. In this context consider Jerome Brunner's assertion that democratic culture "demands that we be conscious of how we come to knowledge and as conscious as we can be about the values that lead us to our perspectives." BRUNNER, supra note 91, at 30.
245. 403 U.S. 15 (1971).
246. Indeed, most of the Supreme Court's references to emotive speech have involved "the overenthusiastic use of rhetoric." National Ass'n of Letter Carriers v. Austin, 418 U.S. 264, 277 (1974). Compare the "insulting, and even outrageous, speech" that the Court has said citizens must constitutionally tolerate. Boos v. Barry, 485 U.S. 312, 322 (1988). The effect of such rhetoric has the exact opposite effect from the advertising expression considered here.
247. We tend to believe, like John Locke did, that our minds are "transparent" in that we can look into them and discern everything that goes on in them. Dennett, supra note 82, at 164. However, this is not the view of contemporary science. See Bowers, supra note 195. There is much that affects our feelings, attitudes, and actions without our being conscious of it, and the impact of colorful advertising graphics provides an apt example of such influence.
248. We tend to believe, like John Locke did, that our minds are "transparent" in that we can look into them and discern everything that goes on in them. Dennett, supra note 82, at 164. However, this is not the view of contemporary science. See Bowers, supra note 195. There is much that affects our feelings, attitudes, and actions without our being conscious of it, and the impact of colorful advertising graphics provides an apt example of such influence.
249. See Reed, supra note 125, at 344-53.
250. See supra note 107 and accompanying text. Consider the importance of convention to speechlike communication in the following two examples of nonverbal expression: By historic convention, flag burning conveys in context a very specific message, i.e., opposition to government policies through destruction of the chief state symbol. However, no convention explains a particularized message or idea for the image of Joe Camel. Joe Camel communicates not by conventional speechlike symbolism but through the aesthetic, emotional response to the image being associated artificially with cigarette smoking. It communicates not by speechlike equivalent but through conditioning emotional response. Reed, supra note 125, at 350-51.