What Counts as 'Speech' in the First Place?

Abstract

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).

Algorithmic audiencing: Why we need to rethink free speech on social media

“…It has been widely argued that due to their de facto role in society, social media platform should be required to uphold free speech principles (Balkin, 2018b; Everett, 2019; Gillespie, 2018; Langvardt, 2018). Freedom of speech is generally understood as the free and fair competition of ideas in a public forum (Wright, 2012). As such, interference with free speech is conventionally discussed in terms of censorship, preventing certain speech from entering into discourse.…”

“…We note that the term content is also sometimes used to refer to the topic of a message (its content); we will not use the term 'content' in this way, instead we will speak of the meaning of a message. (Wright 2012). As such, interference with free speech is conventionally discussed in terms of censorship, preventing certain speech from entering into discourse.…”

“…2.In line with common understandings expressed in various court cases (Wright, 2012), we use speech to refer to a wide range of expressions of ideas, narratives and opinions in various digital forms (text, audio, video and image). We refer to a specific speech act on social media as a message , posted by a speaker to the platform, whereby the message carries a certain meaning within the speech act.…”