12 LEG 1 (2006)

handle is hein.journals/legthory12 and id is 1 raw text is: 

Legal Theory, 12 (2006), 1-17. Printed in the United States ofAmerica
Published by Cambridge University Press 0361-6843/06 $12.00 +00



Charles   W.  Collier*
University   of Florida

What does speech mean in constitutional First Amendment law and in ordinary lan-
guage and the philosophy of language? Under what circumstances does intentional
action count as speech? Can communication be unintentional? And what follows (in
law) from the fact that almost any action can be made expressive?
  This essay addresses these and related questions.

The  perplexities of speech and commuimcation  are on vivid display in a re-
cent article by SusanJ. Brison entitled Speech and Other Acts.' Brison stipulates
at the outset that all speech is conduct, involving an agent, and all conduct,
being intentional action, is expressive (of the motivating intention).2 That
is an admirably broad, abstract proposition, one that might possibly serve as
the basis for a philosophical theory of speech (though, as suggested below,
I have my doubts); but legal principles are usually developed through the
refinement  of narrow, case-specific doctrines. While speech in the constitu-
tional sense is a term of art, to be defined more precisely in the crucible
of judicial reasoning, any usage that simply equates speech with conduct
ignores crucial legal distinctions.
  There  is, of course, a rather elementary sense in which one  might be
tempted  to proclaim  that all speech is conduct-the  sense, namely, in
which  speech  requires and presupposes  some   conduct, such  as moving
one's lips and vocal chords, making marks on  paper, and so on. But if all
conduct  is expressive, then my dog is expressing herselfwhenever she barks
or even when  she chases a squirrel. G.E.M. Anscombe had  the best answer
to that: brutes ... can have [intentions], though ... a cat's movements in

  *I thank Robert D'Anico, Tom Morawetz, and Fred Schauer for helpful comments, sugges-
tions, and criticisms. The University of Florida College of Law supported much of my research
and writing on this project with a summer research appointment.
  1. Susan J. Brison, Speech and Other Acts: A Reply to Charles W Collier Hate Speech and the
Mind-Body Problem: A Critique of Postmodern Censorship Theory, 10 LEGAL THEORY 261 (2004); see
also Charles W. Collier, Hate Speech and the Mind-Body Problem: A Critique of Postmodern Censorship
Theory, 7 LEGAL THEORY 203 (2001).
  2. Susan J. Brison, Speech, Harm, and the Mind-Body Problem in First AmendmentJurisprudence,
4 LEGAL THEORY 39, 61 (1998).


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