It looks like my new project will be when courts do, and when they should, organize free speech tests around the speaker’s mental state — for instance, around whether the speaker is negligent or reckless about certain circumstances (consider the constitutional libel tests, which focus on negligence or recklessness about the falsehood of the statement), or whether the speaker is speaking with the purpose of bringing about some result.
I’d thought about this already in the past, chiefly in my Crime-Facilitating Speech paper (see PDF pages 67-85), which touches on the subject in one context. But the Court’s recent FEC v. Wisconsin Right to Life decision led me to think about the matter more broadly, chiefly because of the following passage:
The FEC … [argues for having] the constitutional test for determining if an ad is the functional equivalent of express advocacy [be] whether the ad is intended to influence elections and has that effect….
[W]e decline to adopt a test for as-applied challenges turning on the speaker