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Just Sayin'—How the False Equivalence of Speech with Action Undermines the Freedom of Speech


This Article argues that a firm distinction between speech and ac-tion is critical to the preservation of freedom of speech. The line be-tween the two has blurred in recent years in disputes over such things as cake bakers’ artistic freedom to refuse certain clients, disruptions of speakers on college campuses, whether campaign finance restrictions limit spending or speaking, and social media companies’ status as platforms or publishers. For the legal system to resolve such conflicts correctly and to uphold the proper boundaries of individuals’ freedom, a firm grasp of the respective referents of “speech” and “action” is imperative.

The Article is in two main parts. First, it presents the basic rationale for a legal system’s treating speech and action differently. It explains that the distinctive concern of the First Amendment is the protection of intellectual activity and demonstrates how the relationship of intellectual activities to the rights of others justifies their special legal status. Second, the Article considers the case for viewing speech and action as more readily intermingled, addressing arguments that, in turn, invoke harm, power, and symbolic speech. On analysis, none of these arguments, I show, vindicates the equation of speech with action.

Finally and more briefly, the Article also considers some of the underlying sources of the conflation of speech with action, sketches the proper resolutions of a few of the recent controversies generated by that conflation, and explains the damage that results from continuing confusion over the speech-action divide. Essentially, when we mis-classify, we mis-protect—we protect actions that should not be protected and we restrict speech that should not be restricted.