On the Distinction Between Speech and Action

Does the First Amendment rest on a mistake? More specifically, is the First Amendment¿s necessary distinction between speech and action fundamentally unsustainable? The basic idea of this Article is that it is hardly clear that respect for an agent¿s autonomy ought to lead other agents, or the state, to tolerate autonomous communicative actions that are determined to be likely to cause harm to third parties any more than they should tolerate autonomous non-communicative actions whose consequences are equivalent. If the principle of freedom to engage in autonomous actions is one that is limited to cases of harm to others, then, at the very least, this limitation has more impact on standard autonomy views about freedom of speech than has commonly been appreciated.

If there is a reason to protect autonomous speech that does not apply as well to autonomous action, then it cannot be a reason derived from the idea of autonomy itself, and instead needs to be based on a much greater empirical showing of the differential consequences of speech and action than has to date been provided.