But Still, Why Do We Care About Purpose?
Having now shown that a message-affecting governmental purpose implicates freedom of expression no matter whether the law in question is on its face content-based or content-neutral - unless, that is, the government is morally compelled to enact and fully enforce a specific law -1 wish to raise a puzzlement about the conclusion.
I am not referring to the problem of attributing purposes to multimember governmental bodies such as legislatures, agencies, and some courts, although that is a problem. Others have dealt with the issue of whether groups can “intend” things, or whether only individuals can. Some think there is such a thing as group intentionality apart from the convergence of individual intentions.4 Others deny this.5 But this, although a real problem, is one that has been widely discussed, and so I shall omit discussing it here.The puzzle I wish to raise is this. Ultimately, our concern with government’s purposes in enacting and enforcing rules - including our concern with whether enactments, repeals, enforcements, and nonenforcements violate rights such as the putative human right of freedom of expression - must rest on a concern with the effects of actions taken with such purposes. After all, if government’s purposes were never reflected in the effects of its acts - for example, what messages get heard, by whom, and with what impact - we would not care why government did what it did. (Similarly, if the people who caused harm in the world - death, injury, loss of property, and so forth - never did so with culpable mental states [purpose, knowledge, recklessness]; and if the people who acted with culpable mental states never caused the harms they culpably tried to cause or thought they were causing or risking; then there would be no point to criminal prohibitions.) Our aim in declaring certain governmental acts violative of human rights is not ultimately to ferret out culpable governmental actors but
11 Const. Comment. 287 (1994); Larry Alexander, “Rules, Rights, Options, and Time,” 6 Legal Theory 391, 399-401 (2000).
3 See Sect. IV infra.
4 See, e.g., John Searle, The Construction of Social Reality 23-6, 37-9 (1995).
5 Itisa standard weapon in the attack on intentionalismin statutory and constitutional interpretation. See, e.g., Larry Alexander, “All or Nothing at All? The Intentions of Authorities and the Authority of Intentions,” in A. Marmor, ed., Law and Interpretation (1995): 357, 387-8, 392-3. is to prevent certain harms from occurring to those subject to the government. Effects, not governmental purposes, must be what ultimately matter.
III.