The Undignified First Amendment

Many commonly understand the constitutional right of free speech as an individual right of expression. One reason for this is the ascendance of the dignitarian or autonomy theory of free speech, which has supplanted the marketplace and democratic conceptions as the predominant theory of speech rights in the United States. As a result, scholars, judges, and citizens usually focus on the rights of speakers. But the United States Constitution does not describe a right to speak; the First Amendment protects a right to speech.

This article argues that the preoccupation with the dignitarian basis for speech as expression has distorted the doctrinal development of First Amendment case law and distracted from the historical and theoretical bases for protecting speech constitutionally. The article argues that the primary form of constitutionally protected speech is and was meant to be reciprocal communication between a speaker and a listener. Accordingly, the article differentiates expression and communication, and then demonstrates that a coherent conception of speech as a relational right of communication exists in certain important judicial opinions of the United States Supreme Court and other federal courts. The article explains that these cases articulate a doctrinal basis for differentiating between communication and expression, and for emphasizing communication over expression when we think about the speech that the First Amendment protects.