The Harm Principle and Free Speech

This article challenges the recent turn to absolutism in free speech doctrine, and the scheme of "protected" and "unprotected" speech that it enshrines. A more historically and theoretically sound approach to free speech would take into account the actual manner in which expression is alleged to cause harm. If the process of causing harm does not engage the rational processes of the audience, then the strict rule against content regulation is not appropriate. The article offers an original, revisionist perspective on the leading case on content regulation, Police Department v. Mosley, 408 U.S. 92 (1972), which was authored by Justice Thurgood Marshall, for whom the author clerked in OT85. The harm-principle theory draws on prior work she has done on the understanding of equality and liberty. It seeks to restore the freedom of speech to a more comfortable place in the jurisprudence of ordered liberty, while still taking account of the unique features of speech that give rise to special concerns in a democracy. The theory anticipates that, as society recognizes new kinds of speech-based harm arising out of its evolving understandings of equal status and liberty, the Court is mistaken to erect a categorical barrier to all regulations that might address those harms. This article offers a principled way to avoid that mistake.