115 Colum. L. Rev. Sidebar 1 (2015)

handle is hein.journals/sidbarc115 and id is 1 raw text is: 







           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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