What Activities Implicate Freedom of Expression?

In this section I shall make the following points: First, freedom of expression covers all media of communication. Second, a human right of freedom of ex­pression is most plausibly a right of the potential audience of the expression, not a right of the speaker.

A. Freedom of Expression and the Variety of Media of Expression

Freedom of speech, which is often used synonymously with freedom of ex­pression, has always been thought to cover more than what is literally speech, that is, spoken language. For example, no one disputes that it covers written language as well as spoken language. Moreover, it is difficult to see how it could be withheld from sign language, pictographs, pictures, movies, plays, and so forth; and, indeed, the legal protection afforded freedom of speech in countries such as the United States has been extended to all of these media of communi­cation and expression, as well as to abstract artistic and musical performances. Usually, then, freedom of speech refers to - and is frequently referred to as - freedom of expression or freedom of communication.

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It is commonplace to distinguish between “speech” and “symbolic speech.” As the previous paragraph should make clear, however, that distinction is illu­sory. All speech employs symbols, whether they be sounds, shapes, gestures, pictures, or any other medium. There is thus no such thing as nonsymbolic speech; there is only speech that employs symbols that are less or more con­ventional. The same point also applies to any purported distinction between speech or expression and “conduct” or “action.” All expression requires con­duct of some sort, and any conduct can be communicative.

B. Freedom of Expression as the Right of the Audience

It is most natural to think that if there is a right of freedom of expression, it must be the right of the speaker. Thus, when the government threatens speaker S with punishment if he attempts to give certain information or express certain opinions to audience A, we are tempted to regard this as a violation of S’s right to freedom of expression.

On the most plausible accounts of why freedom of expression should be protected, however, it is A whose right is violated whether or not S’s freedom of expression is also violated. For assume that S is the author of a book and is now dead. He has no freedom of expression now. If A’s government is violating anyone’s rights by prohibiting the dissemination of S’s book, it is A’s (the audience’s) rights. Or if one imagines that S possesses a right of freedom of expression during his lifetime, which right extends to acts of suppression of his works after he dies, imagine that S is a young child, or better yet, the thousand monkeys on typewriters, who manage (accidentally, of course) to bang out Das Kapital, which government wishes to suppress because of its subversive potential. In such a case, the only moral objectors - the only possible victims of a moral rights violation - would be A. Likewise, if A’s government prohibited A from watching sunsets because it feared A would be inspired to have subversive thoughts, freedom of expression would arguably be implicated, even though there is no speaker of any sort.^[10]

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C. Freedom of Expression As Implicated By the Purposes Behind, Rather Than the Effects of, Suppression

Let me elaborate on this last point - namely, that government’s purpose for regulating, not what it regulates, is central to freedom of expression - for it is crucial.

(1) Freedom of expression is implicated whenever “expressive conduct” is suppressed or penalized.

(2) Freedom of expression is implicated whenever conduct that is intended to communicate a message is suppressed or penalized.

(3) Freedom of expression is implicated whenever an audience is prevented from receiving a message.

(4) Freedom of expression is implicated whenever conduct intended to commu­nicate a message is suppressed or penalized with the result that an audience is prevented from receiving the message.

(5) Freedom of expression is implicated whenever an activity is suppressed or penalized for the purpose of preventing a message from being received.

Now it is easy to see that principle (1) cannot possibly be true. Any conduct can “express” ideas, even if the one engaging in it does not so intend. Those observing or hearing about the conduct may form certain ideas as a result. If principle (1) were true, then freedom of expression would be implicated by all laws and thus by both the laws that currently exist and all alternatives to those laws.

Principle (2), which focuses on the intent to communicate a message, is also implausible. I have already mentioned a counterexample, the dead author. But perhaps this example is unconvincing. One might argue, for example, that the dead author does have a right of freedom of expression that survives his death and prevents the suppression of his work.

So let us move beyond these examples and focus on a speaker who is alive, who is within whatever jurisdiction is relevant, and who intends to express an idea through the conduct that is suppressed. Let us suppose that Alan has the apartment next to Bertha. Bertha is ill and quite sensitive to noise, which impedes her recovery. Alan is rehearsing for a role in a play. Sometimes he reads his lines in a booming voice to practice projecting.

Now if Bertha succeeds in enjoining Alan’s clanging his sword, surely Alan’s freedom of expression is not implicated. The fact that he is rehearsing for a play is of no importance; he could have been training for a jousting tournament or just enjoying the sound of metal on metal.

Is Alan’s reading his lines relevantly different from his clanging his sword? Even if he were intending to express some message, his only audience is Bertha, who neither hears the message nor cares about it. She hears only noise. From her perspective - and from Alan’s - the line reading and the sword clanging are on a par. Therefore, if freedom of expression is not implicated by suppressing the swordplay, it is not implicated by suppressing the line reading. Freedom of expression would appear to require the presence of an audience capable of understanding the ideas the speaker intends to express.^[11]

Now if Alan himself were formulating ideas in reading his lines aloud - if he were, in essence, his own audience - things might look different. That brings us to principle (3), which posits that freedom of expression is implicated whenever an audience is prevented from receiving a message. But principle (3) has the same vice as principle (1), namely, that it is virtually limitless. For people can derive ideas from almost anything. If the law prohibits driving 100 miles per hour, then we are not going to be able to form the idea of what it is like to drive that fast. If the law protects freedom of expression, we are not going to be able to form the idea of what the absence of legally protected freedom of expression would be like.

Before concluding that principle (5) - which focuses not on what is being regulated nor on the effect of the regulation, but on the purpose behind it - is the proper principle for delimiting the scope of freedom of expression, let us consider an alternative principle that combines principles (2) and (3). This principle - (4) - would hold that freedom of expression is implicated whenever conduct that is intended to communicate a message is suppressed or penal­ized with the result that an audience is prevented from receiving the message, even if the reason for suppressing or penalizing the conduct has nothing to do with the message(s) intended or received. This principle is definitive of what Laurence Tribe calls Track Two freedom of speech cases,^[12] and it is the subject of Chapter Two.

D. The Core of Any Conception of Freedom of Expression: Evaluative Neutrality

To make my case that principle (4) is untenable and that principle (5) is correct, I need to assume something about the meaning of freedom of expression, namely, that at its core it requires regulators to abstain from acting on the basis of their own assessments of a message’s truth or value. Whether that requirement is in the final analysis possible is a subject I leave for Chapter Eight. Here, however, it must be taken to be both possible and necessary. For we would not credit a regime with honoring freedom of expression if it announces that any ideas can be freely expressed so long as the government believes the ideas to be true and valuable. In other words, anything recognizable as a conception of freedom of expression must entail a requirement that government, at least in its capacity as regulator, maintain a stance of evaluative neutrality vis-a-vis messages. As Justice Robert Jackson put this point in West Virginia State Board of Education v.

I wish to emphasize that I am not begging any questions by placing evaluative neutrality at the core of all conceptions of freedom of expression. For any inquiry such as mine into the moral foundations of freedom of expression must assume something about it. So although I cannot demonstrate that evaluative neutrality is central to freedom of expression, I cannot imagine anyone’s believing that “you are free to express anything you want so long as I don’t believe it to be untrue, base, or harmful” constitutes freedom of expression on any conception. The case for a human right of freedom of expression will prove difficult enough even if evaluative neutrality is assumed. Without such an assumption, however, the case cannot even get started.