In recent months, I’ve often run across arguments (including in comments on this blog) that certain kinds of speech ought to be unprotected because they’re really “conduct,” not “speech.” Now these weren’t arguments about expressive conduct, such as flagburning or nude dancing. They focused on speech that was written or spoken words, and the speech was seen as causing harm through its content (as opposed to, for instance, because it was too loud or said by people who were blocking traffic). But something about the words — or the laws restricting the words — led some to respond that the restriction was actually a conduct restriction, not a speech restriction.
This led me to decide to serialize on the blog portions of an article I wrote about the subject a couple of years ago, Speech as Conduct: Generally Applicable Laws, Illegal Courses of Conduct, “Situation-Altering Utterances,” and the Uncharted Zones, 90 Cornell Law Review 1277 (2005). I much enjoyed serializing my Medical Self-Defense piece when I was working on it, and my sense was that many of our readers enjoyed it, too. Let me then take the liberty of doing the same as to this piece — which turns out to be relevant to many hot First Amendment debates, as I hope the following will show. If you’re interested in seeing the footnotes, look here.
When, if ever, should speech lose its First Amendment protection on the grounds that it