Having shown in Chapter Two, primarily through an excursion into American First Amendment jurisprudence and its Track Two component,
but with some glances at the analogous jurisprudence of Canada and Australia, that principles (1), (2), (3), and (4) - all of which focus on the effects of regulations on messages intended and received - are untenable for delimiting the scope of freedom of expression, I concluded that principle (5), which has as its focus the regulator’s purpose in regulating conduct, defines that scope.
Principle (5) includes within freedom of expression all conduct that is restricted for the purpose of affecting the messages that audiences receive. It is immaterial under principle (5) whether the conduct is the conventional method of expressing ideas - written or oral language - whether it is intended to express ideas by those engaging in it, or whether most people would receive the message in question from observing or hearing the conduct. All that matters is why the conduct is regulated. If it is regulated because of a message that the regulator wishes to suppress, alter, or otherwise affect, freedom of expression is implicated. Thus, if government forbids people from climbing Half Dome in Yosemite National Park - not because of the danger that they might be injured, not because of the harm they might cause the environment, but because government fears that some of them are receiving spiritual messages from the experience that the government wishes them not to receive - freedom of expression is in issue despite the absence of a speaker, an intent to speak, conventional symbols, and perhaps even the meaning most would attach to the experience. The same would be the case if government banned toy guns for children out of fear that a few children would get militaristic ideas.Principle (5) defines the scope of freedom of expression by the purpose of the regulator. (I shall assume for the time being that “regulator” and “government” are synonymous, though I shall take up this issue later.) And the purpose that defines a freedom of expression issue is that of affecting the content of messages received.1
Content regulations can usefully be subdivided into three types. First, there are regulations designed to affect content where government fears that the message, if unaffected, will cause harm without any further choice by the audience receiving it. Second, there are regulations designed to affect content that it is feared will otherwise cause harm through a further choice by the audience, but a choice that the government cannot control because the audience cannot be penalized for making the harmful choice. And third, there are regulations that are like the second type, except that the audience can be penalized for making the harmful choice. I take up these three types of content regulations in turn.
I.