Principle (5) and Message-Driven Governmental Regulation: A Tentative Conclusion
When receipt of a message is itself directly harmful, and government wishes to regulate the message for that reason, its regulations are either always or never violative of the right of freedom of expression, or so I have tentatively concluded.
Any attempt to carve out an intermediate position would require the government - first, the legislature in deciding what to regulate, and second, in jurisdictions with a judicially enforceable constitutional right of freedom of expression, the courts in deciding which such regulations to permit or strike down - to weigh the value of the messages expressed against the disvalue of the harms they cause. But such message evaluation by the government seems deeply inconsistent with any conception of freedom of expression.When receipt of a message causes harm in two steps, but the government cannot effectively regulate the second step, then with the exception of messages that the speakers know to be false or deceptive, which I view as unproblem- atically regulable, I see no difference in terms of freedom of expression from messages that cause harm directly.
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When the second, harmful step by the audience is regulable - as with advocacy, incitement, and solicitation of harmful acts - then the choice seems to be between regarding all governmental interdiction as violative of freedom of expression, even if no other regulations of messages are, or treating governmental interdiction of such messages as no different from all other regulations that fall under principle (5). Moreover, if the first of these alternatives is correct, then I have argued that Strauss to the contrary notwithstanding, freedom of expression would appear to exempt from liability all unknowing defamers and other misrepresenters of facts. On the other hand, if one believes that unknowing defamations and factual misrepresentations lie outside freedom of expression, then so too do incitement and solicitation. Finally, even if freedom of expression protects expression that causes harm through regulable acts of the audience, government might still legitimately regulate messages that cause harm through persuading morally responsible audiences to act harmfully if government’s reason for regulating were fear that the message might persuade members of the audience who are not morally responsible actors - the immature, the insane, and so forth.[145]
We are left then with either a right of freedom of expression that is counterintuitively capacious and covers the entire domain of principle (5),[146] or one that is counterintuitively narrow and covers, at most, those messages that cause harm by persuading responsible audiences, and only responsible audiences, to act harmfully. Paradoxically, finding a right of freedom of expression that feels “just right” in terms of its scope requires the very evaluations of messages that any conception of freedom of expression would view as its central evil.