What Counts as 'Speech' in the First Place?

Abstract

The most fundamental problem in free speech law is not whether to protect the speech in question. Rather, it is whether ‘speech’ for First Amendment purposes is present in the first place. The Supreme Court will have another opportunity to address what counts as ‘speech’ this term in the Stevens animal cruelty video case. But the Court has historically offered inconsistent guidance in this area. This Article rejects several pessimistic approaches, but recognizes that any convincing approach to what counts as ‘speech’ for First Amendment purposes must be complex and multi-layered, with sensitive concern for broad as well as specific considerations. We begin with the constitutional text and drafter intent, but move on to the role and limitations of functionalist approaches, to the roles of symbolism and pre-symbolism in speech, to literary theory and the philosophy of vagueness and ambiguity, and then to the interaction of specific context, helpful mid-level rules, and broad theory of the purposes of protecting speech in the first place.