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Nonsense and the Freedom of Speech: What Meaning Means for the First Amendment

2014; Duke University School of Law; Volume: 63; Issue: 7 Linguagem: Inglês

1939-9111

Joseph Blocher,

Hate Speech and Cyberbullying Detection

A surprising amount of everyday expression is, strictly speaking, nonsense. But courts and scholars have done little to consider whether or why such meaningless speech falls within “the freedom of speech.” If, as many suggest, meaning is what separates speech from sound and expression from conduct, then the constitutional case for nonsense is complicated. And because nonsense is widespread, the case is also important—artists like Lewis Carroll and Jackson Pollock are not the only putative “speakers” who should be concerned about the outcome. This Article is the first to explore thoroughly the relationship between nonsense and the freedom of speech; in doing so, it suggests ways to determine what “meaning” means for First Amendment purposes. The Article begins by demonstrating the scope and constitutional salience of meaningless speech, showing that nonsense is multifarious, widespread, and sometimes intertwined with traditional First Amendment values like the marketplace of ideas, autonomy, and democracy. The second part of the Article argues that exploring nonsense can illuminate the meaning of meaning itself. Copyright © 2014 Joseph Blocher. † Associate Professor, Duke University School of Law. I am immensely grateful to Amy Adler, Mark Bartholomew, Stuart Benjamin, Ashutosh Bhagwat, Josh Chafetz, Alan Chen, Michael Coenen, Kristelia Garcia, Deborah Gerhardt, John Inazu, Adam Kolber, Tamara Piety, Jeff Powell, Jed Purdy, Dana Remus, Seana Shiffrin, Neil Siegel, Zephyr Teachout, and Mark Tushnet for insightful comments; to participants in the Free Expression Scholars Conference held at Yale Law School in May 2013; and to Kara Duffle, Jordan Fly, Christopher Ford, John Long, and Courtland Tisdale for research assistance. BLOCHER IN PRINTER (DO NOT DELETE) 3/16/2014 8:10 PM 1424 DUKE LAW JOURNAL [Vol. 63:1423 This, too, is an important task, for although free speech discourse often relies on the concept of meaning to chart the Amendment’s scope, courts and scholars have done relatively little to establish what it entails. Analytic philosophers, meanwhile, have spent much of the past century doing little else. Their efforts—echoes of which can already be heard in First Amendment doctrine—suggest that free speech doctrine is best served by finding meaning in the way words are used, rather than in the degree to which they represent extralinguistic concepts.