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COLUMBIA LAW REVIEW SIDEBAR
VOL. 115 FEBRUARY 12, 2015 PAGES 1-3
FREE SPEECH AND SPEAKER'S INTENT:
A REPLY TO KENDRICK
Larry Alexander*
Response to: Leslie Kendrick, Free Speech and Guilty Minds, 114 Colum. L. Rev.
1255 (2014).
I have argued that a speaker's mental state with respect to whether
her words will cause harms that the government can legitimately seek to
prevent should be immaterial to whether her speech is protected by the
First Amendment-except to the extent her mental state bears on
whether sanctioning her will chill others' protectable speech. Recently,
Professor Leslie Kendrick has taken issue with my position and the simi-
lar position of others.2 She argues that the speaker's mens rea regarding
the harmfulness of her speech affects the First Amendment protectability
of her speech apart from chilling-effect concerns. The speaker's mental
state matters, not only for purposes of criminal law and tort law, but for
free-speech law as well, and intrinsically rather than instrumentally. Al-
though I accept the compliment of serving as one of her principal foils, I
nonetheless continue to disagree with Professor Kendrick's position.
My case against her position can be illustrated very simply by exam-
ples in which neither criminal nor tort liability of the speaker is an issue.
Take, for example, cases in which the identity of the speaker is unknown
* Warren Distinguished Professor of Law, University of San Diego School of Law.
1. See, e.g., Larry Alexander, Is There a Right of Freedom of Expression? 9-10, 76
(2005) (providing examples demonstrating immateriality of intent and presenting reasons
why Brandenburg test's consideration of intent is unsatisfying); Larry Alexander, Free
Speech and Speaker's Intent, 12 Const. Comment. 21, 21-22 (1995) (I [argue] against
locating the 'value' of speech in the intentions of its authors . . . . Whatever the author
intends to communicate by her speech, it is always possible and indeed highly likely that
the ideas the audience receives will be different.); Larry Alexander, Low Value Speech, 83
Nw. U. L. Rev. 547, 548 (1989) (The problem with focusing on the speaker's intent ... is
that under the most plausible theories regarding the justification of freedom of speech,
the 'value' of speech resides in the derivation of meaning by its audience and not in the
intended meaning, if any, of the speaker.); Larry Alexander, Redish on Freedom of
Speech, 107 Nw. U. L. Rev. 593, 596 (2013) (arguing Professor Redish rightfully rejects ele-
ment of Brandenburg test requiring mens rea of intent, which serves no obvious free
speech value).
2. Leslie Kendrick, Free Speech and Guilty Minds, 114 Colum. L. Rev. 1255 (2014).
In that essay, Professor Kendrick lists Frederick Schauer and Martin Redish as my partners
in crime. See id. at 1258 n.9. I hereby absolve them of any guilt in connection with this
analysis and defense of the position Professor Kendrick attacks.
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