2. Among the expanding variety of increasingly sophisticated judicial free speech tests, see, e.g., Morse v. Frederick 551 U.S. 393 (2007) (certain forms of public school student speech); Garcetti v. Ceballos, 547 U.S. 410 (2006) (public employee speech); Miller v. California, 413 U.S. 15 (1973) (certain forms of pornography); New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (libel of public officials). 3. As recognized in Black, supra note 1, and illustrated in Cohen v. Calfornia, 403 U.S. 15, 27 (1971) (Blackmun, J., dissenting) (Cohen's anti-draft jacket writing as an "absurd and immature antic" amounting, crucially, to "mainly conduct and little speech"). More moderately, even if we like the idea of deciding close free speech cases in favor of the speaker, in order to better insulate "core" speech, it does not follow that we should include as much as possible, however trivial, in the category of "speech" for free speech purposes. 4. The basic terminology for this distinction was popularized in FREDERICK SCHAUER, FREE SPEECH: A PHILOSOPHICAL ENQUIRY 89 (1982). 5. See id. 6. Consider, for example, the refinement in the structuring of free speech protection in the libel context. See, e.g., Sullivan, 376 U.S. 254; Curtis Publ'g Co. v. Butts, 388 U.S. 130 (1967) (public figure plaintiffs); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) (limits on actual malice requirement for private figure plaintiffs); Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985) (plurality opinion) (refining Gertz in case of speech not on matters of public interest and concern); Phila. Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986) (burden of proof on issue of falsity).
