Amy J. Sepinwall (University of Pennsylvania – Legal Studies Department) has posted The New Speech-Conduct Equivalence on SSRN. Here is the abstract:
The Supreme Court has unwittingly resurrected a vexing question in Free Speech theory—namely, how to justify the specialness of speech? Twentieth-century theorists recognized that any defense of free speech grounded in self-realization could not explain why speech should receive constitutional protection while equally self-expressive conduct remained regulable. They therefore proposed an alternative grounding: speech should enjoy special constitutional status not because it expresses the speaker’s identity but because it performs a distinctive role in collective political life. Speech—debate, advocacy, persuasion—is central to the project of collective self-government whereas conduct is not. That democratic understanding profoundly shaped modern First Amendment doctrine.
The Court’s recent jurisprudence, however, dramatically departs from the democratic rationale. Decisions such as 303 Creative LLC v. Elenis, Moody v. NetChoice, and Chiles v. Salazar repeatedly invoke the interest in self-realization as the basis for heightened constitutional protection. Yet in each case there exists a conduct-only counterpart whose interest in autonomy, integrity, or self-definition are indistinguishable from those of the successful speaker-plaintiffs. Wedding planners may have no less reason than website designers to object to working with same-sex couples; an Etsy seller may care no less than Facebook about hosting strident political speech; and endocrinologists may desire no less than talk therapists to engage in conversion therapy with their adolescent patients. If the Court’s reasoning is sound, these actors, too, should receive First Amendment protection. But that conclusion would transform the First Amendment into a general charter of individual liberty—an absurd result.
The Article draws out the reasoning in each of the cases to argue that it cannot do the work of distinguishing speech from conduct. Thus we arrive at the new speech-conduct equivalence. The Article then deploys the equivalence to argue that the Court has gone wrong not in failing to protect conduct to the extent it protects speech but instead in extending heightened protections to self-expressive speech in the first place. The Article ends by proposing a new constitutional framework that would honor the speech-conduct equivalence without opening the First Amendment floodgates to all manner of speech and conduct regulations.
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