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Article Excerpt
Everybody knows that communication is important, but nobody knows how to define it. The best scholars refer to it. Free-speech law protects it. But no one--no scholar or judge--has successfully captured it. Few have even tried.
This is the first article to define communication under the law. In it, I explain why some activities--music, abstract painting, and parading--are considered communicative under the First Amendment, while others--sex, drugs, and subliminal advertising--are not. I argue that the existing theories of communication, which hold that communicative behaviors are expressive or convey ideas, fail to explain what is going on in free-speech cases. Instead, communication hinges on the free will of the recipient. By this I mean that communication occurs when Person A conveys a thought to Person B, and Person B freely chooses whether to accept that thought. An act is communicative, in other words, if the important change that A wants to make in B's mind occurs only if B wills it to, as happens during an argument.
Reconceptualizing communication in this way--as behaviors meant to change minds through the free will of the listener--would solve deep and persistent First Amendment problems. It would explain which behaviors are communicative and therefore potentially covered by the First Amendment. Adopting the free-will theory would clarify the analysis in historically muddled areas such as the First Amendment treatment of nude dancing. But it would also shed light on the law governing new forms of behavior, such as publication of computer-programming code.
More broadly, the free-will theory of communication can point us in new directions. We are used to thinking of communication in ways that don't describe it, and these errors may keep us from recognizing new forms of communication as they develop. Applying the free-will theory of communication, I argue, will prepare us for technological changes that will make our old metaphors for communication obsolete.
TABLE OF CONTENTS INTRODUCTION I. EXPLORATION: WHAT DOES IT MEAN TO COMMUNICATE? A. The Coarse Definition of Communication Is Inadequate B. The Free-Will Theory Elaborated C. Analysis of Existing Theories 1. Communication Is Not Just the Conveyance of Ideas 2. Communication Is Not Just Behavior that Goes to the Mind 3. Communication Does Not Consist Only of Illocutionary Acts 4. Communication Does Not Consist Only of Behaviors that Convey Thoughts and Cause More Good than Harm II. APPLICATION: THE FREE-WILL THEORY OF COMMUNICATION AND THE FIRST AMENDMENT A. The Free-Will Theory and First Amendment Values B. Description of Speech-Conduct Law C. The Free-Will Theory and Content-Neutrality Analysis D. Identifying Freely Willed Responses E. Application: Nude Dancing and Publishing Code 1. Nude Dancing 2. Code Cases CONCLUSION
INTRODUCTION
Everybody knows that communication is important, but nobody knows how to define it. The best scholars refer to it. (1) Free-speech law protects it. (2) Smart people tell us that the Internet should be structured to promote it. (3) But no one--no scholar or judge--has successfully captured it. Few have even tried.
The following acts are communicative enough to be covered by the First Amendment (4): playing music, (5) painting abstract figures, (6) marching in a Hibernian pride parade, (7) watching and showing movies, (8) dancing in the nude and watching nude dancing (barely), (9) picketing (sometimes), (10) posting computer source code, (11) and burning a flag or draft card. (12)
Compare these communicative acts to a list of noncommunicative acts: violence, (13) drug use, (14) subliminal advertising, (15) refusing to allow military recruiters on campus in protest of a government policy, (16) and sex. (17)
What's the difference between the first list and the second? Nobody knows. There are a few proposed distinctions, but none bear any scrutiny, and few have been seriously championed. The law nominally protects acts that are "expressive," but rarely defines that word. When a definition is provided, it does not capture what it seeks to--any reasonable definition of "expressive" would include sex and violence, which can be deeply expressive but are not seen as expression covered by the First Amendment. The same is true of other phrases used to describe First Amendment coverage, such as "the First Amendment protects the communication of ideas." (18) We aren't really sure what "ideas" are, but whatever they are, music and nude dancing don't convey them.
Some scholars argue that communicative acts are those directed at the mind and not the body, (19) but activities like psychotropic-drug use and subliminal advertising are directed at the mind and still not protected from regulation. Other scholars argue that philosophers like Ludwig Wittgenstein and J.L. Austin, who argued against a formalist understanding of language, can show us which acts are communicative. (20) But no scholar has explained how this work can be used to identify activities that are not communicative. And while other scholars assert that communicative acts are those that serve First Amendment values, there is no agreement as to which First Amendment value is paramount. (21) Nor has anybody explained how any one value could be used to distinguish between communication and noncommunication, as any value would also be furthered by some noncommunicative acts.
In short, we got nothing.
This Article fills the gap, providing the first viable legal definition of communication. Instead of worrying about "expression," or "ideas" or "mind," or "values," I will argue, we should be asking about free will. In determining what communication is, we are engaging our intuitions about free will. More specifically, we are engaging our intuitions about freely willed mental responses. By this I mean that communication occurs when Person A tries to convey a thought--some idea or feeling--to Person B, and Person B can freely choose whether to accept that thought. An act is communicative, in other words, if the important change that A wants to make in B's mind occurs only when B wills it to.
In this Article, I will develop and defend this theory--the free-will theory of communication. In Part I, I will articulate a coarse definition of communication, one that weeds out all the easy cases, and then argue that the coarse definition is overinclusive. I will then argue that the free-will theory defines communication more accurately than any of the four existing theories: (1) that communication is behavior that conveys ideas, (2) that communication is behavior that primarily impacts the mind, (3) that communication can be understood in reference to linguistic philosophy, and (4) that communication is behavior that conveys thoughts and causes limited harm.
In Part II, I will discuss the free-will theory of communication in the context of First Amendment law and theory. I will argue that theorists who attempt to derive a theory of communication by looking only at First Amendment values--meaning justifications for free speech--will inevitably fail, but that the flee-will theory is nonetheless consistent with a multiple-value approach. I will go on to argue that current speech-conduct law is incoherent and that the free-will theory could clarify it: in particular, it could solve problems by refining content-neutrality analysis. I will then apply my theory to two sets of flee-speech cases: the nude-dancing cases and cases governing the publication of computer-programming code.
In the Conclusion I very briefly explore the broader implications of the free-will theory, arguing that it can help us learn when to treat virtual worlds as real, reimagine the relationship between communication and the body, and prepare us for new technologies that we will not know how to classify under existing free-speech theory.
I. EXPLORATION: WHAT DOES IT MEAN TO COMMUNICATE?
A. The Coarse Definition of Communication Is Inadequate
I argue here that the existing definitions of communication don't work, by which I mean that they don't predict what either doctrine or intuition say communication is. But first, I will suss out a coarse definition of communication, one that will weed out behavior that is undisputedly not communicative, but that will ultimately prove overinclusive.
Communication is made up of things like talking and writing and painting and making movies. We can note, as a start, that all these things are meant to convey a state of mind--an idea or feeling or emotion--from one person to another. To this we can add that the act must be reasonably recognizable as intended to convey thoughts. If, for instance, Fred drops a bowling ball off his roof to protest a treaty, he has not communicated disapproval even if he really meant to. Communication, in other words, requires use of conventional means to convey a state of mind.
We can say, then, that communicative acts are those intended to convey mental states and performed in ways that are reasonably understood to be for that purpose. I'll call this definition--acts meant to convey thoughts done through means reasonably recognizable as serving that end--the "coarse" definition of communication, because it is useful but overinclusive. Let me also note that some scholars define communication (or its equivalent) in almost exactly this way, (22) presumably reasoning that this is as precise a definition as we can get.
To test out the coarse definition, let's apply it to the following cases:
1. A doctor prescribes Prozac for a patient.
2. Person A takes a hit of ecstasy. A tries to explain to B what taking the drug feels like. Finding that words are insufficient, A gives B some of the drug.
3. A nude erotic dancer dances onstage in front of a customer.
4. An erotic dancer gives a customer a lap dance without touching him.
5. An erotic dancer gives a customer a lap dance and rubs the customer while dancing.
6. A movie theater splices a single frame advertising popcorn into a film, which raises popcorn sales even though viewers don't realize they have seen the frame.
7. A sadist uses torture techniques that cause no lasting physical harm on a willing masochist as part of a role-playing fantasy.
These examples, I will argue, show the limits of the coarse definition because under that definition they all should be considered communication--even though they are not, in fact, generally considered communicative. (23)
Consider the first example: a doctor prescribes Prozac for a patient. Intuitively, that doesn't seem like communication. Indeed, no one has argued that the right to make, prescribe, or take drugs is protected by the First Amendment. Still, the coarse definition of communication includes any act that is primarily intended to convey a state of mind and does so in a way that is conventionally for that purpose. And the very point of Prozac is to alter thoughts; it made Eli Lilly a lot of money doing that. Put another way, Prozac is like a novel: it wants to change your mind. So the acts of making and taking Prozac would be considered communication under the coarse definition. The problem is that they're not communicative.
Of course, one might say that making or taking Prozac isn't speech because it can cause harm. But speech can cause harm--consider those famous Skokie Nazis, whose right to march was covered by the First Amendment. (24) They could have caused a lot of harm: fear and anger and so forth. So harm by itself can't be the answer. Still, it might be that Prozac potentially causes more harm. But saying this misses the fact that Prozac seems categorically different from Nazi parades--not subject to the same speech-harm balancing test. It is extremely unlikely, for example, that psychotropic drug use would be deemed speech even if the drug undisputedly caused no harm. Taking drugs is noncommunicative, in other words, regard less of the harm it causes. (25)
Another possible objection to the Prozac example is that communication occurs when a person has a thought and tries to pass the same thought to another person. Even though the folks at Eli Lilly intended Prozac to change people's minds--and to do so in a way that is recognized for that purpose--it is not conveying a mental state mat they themselves are experiencing. In other words, you might say that someone communicates when she has a thought and tries to pass the same thought to another person. But people convey states of mind they don't experience all the time--when they lie, for instance. And although lying may not be protected communication, it does seem like a kind of communication. One can also imagine situations in which a person conveys a thought without knowing what it is. If, for instance, a poet creates a computer program that randomly writes poetry, and it happens to produce a poem that is critical of the government, nothing in First Amendment law suggests that the government could suppress the poem because the poet wasn't really thinking about its content.
Here let me add that this requirement--of equivalence between the mental state of the speaker and the thought potentially conveyed to a listener--seems to be what the word "expression" is getting at. Literally, "expression" denotes getting something out, (26) and in the First Amendment context, the thing expressed must be the mental state of the communicator. But to be communicative, an act doesn't need to express a state of mind that the actor is truly experiencing. Consider a nude dancer. Her free-speech rights don't disappear if she is thinking about the drive home while dancing. This means, then, that the word "expression" is inappropriate, because it implies that the speaker must think or feel what she is communicating--a requirement that doesn't really exist. (27)
The second example addresses this problem directly: a drug user gives ecstasy to her friend so her friend can experience the same state of mind. This use of drugs, then, is expressive. But few would call it communicative, and no judge would classify it as speech.
Examples three, four, and five all involve erotic dancing: one from a distance, one up close without touching, and one up close with touching. All these acts are meant to change minds by causing arousal, which is a mental phenomenon. But only the first act--nude dancing--is covered by the First Amendment, and then only barely. (28) But the purpose and content of erotic dancing and erotic rubbing are the same: to arouse. It therefore seems that all three acts should be treated the same way. Of course, erotic rubbing might be more likely to lead to actual prostitution or other undesirable outcomes, but that is because it is a very effective form of communication, not because it isn't meant to convey a mental state. (29)
The sixth example involves subliminal advertising in a movie theater. Assume that subliminal advertising works. (30) Under the coarse definition, this ad must be speech. "I want popcorn," is, after all, a state of mind. Subliminal advertising conveys "I want popcorn"--an idea--through language, and conveying an idea through language is the paradigmatic instance of communication in typical First Amendment discourse. (31) Subliminal advertising therefore seems like it should be communication. But subliminal advertising is generally not covered by the First Amendment. (32)
The final example, a sadomasochistic mock torture session, should also be communicative under the coarse definition. Pain, after all, is a mental state. The torturer in this hypothetical is therefore conveying a mental state--pain--without causing physical harm or using physical coercion. And yet it would seem a category mistake to call this act "communicative." One doesn't "communicate" physical pain in the ordinary sense of the word. Nor is there any reason to think that this act would be covered by the First Amendment.
All seven examples, then, should be communicative acts under the coarse definition of communication. But none except nude dancing are covered by the First Amendment, and none except nude dancing intuitively seem like communication.
The free-will theory of communication explains why. These acts are not communicative because they are intended to convey mental states regardless of the recipient's will. When someone takes Prozac or ecstasy, her ability to experience the mental state the drug is supposed to produce does not turn on an act of will. We would not say to a friend, "This drug will get you high if you really think about it." Similarly, subliminal advertising is thought to persuade a person whether they want it to or not. And erotic rubbing is treated differently than erotic viewing because, of the two, rubbing is harder to experience without becoming aroused.
To the coarse definition, then, I am adding a new piece---one that has never been articulated before. The coarse definition says that communicative acts are primarily intended to convey a state of mind and are reasonably recognizable as serving that purpose. But this is not enough. The important and desired change of mind must be effectuated through the listener's will.
B. The Free-Will Theory Elaborated
In the previous Section, we saw that the coarse definition of communication and the concept of expression failed to explain why some acts--those that changed minds in ways the listener couldn't reject--weren't communicative. This suggested an additional requirement: that the thought conveyed can only be effectuated through the will of the listener.
We are now in a position to elaborate a bit on this proposal. First, although the concept of freely willed responses may seem obscure, it isn't. This appeal to freely willed mental responses is most evident in argument, which is core First Amendment activity. When someone is arguing, her goal is not just to have her voice heard. Her goal, instead, is to convince someone--to change the listener's mind. But the listener can only be convinced through her own free will. My thesis is that we should treat this quality, of working through the free will of the listener, to be the sine qua non of communication, whether linguistic or not.
Second, let me clarify that I use the phrase "freely willed mental response" to limit the scope of my proposed definition (as the use of the word "mental" indicates) to acts that the listener can control her response to solely through mental effort. In other words, these are acts whose most important effects can be resisted even when they are physically completed. For instance, one can hear an argument and choose whether to agree with it, or watch a play and choose whether to be moved by it. Psychotropic drugs, on the other hand, are not communicative, because people who take drugs can't choose whether to be affected by them (although one could freely choose not to take drugs). (33)
Third, I have described communicative acts as those whose most "important" effects are effectuated only through the freely willed mental responses of others. Every act has multiple effects, both physical and mental, and the communication analysis focuses on the most significant one. Persuading someone, for instance, has many physical effects, such as moving some air molecules around, and many mental effects, such as putting the sound of one's words in the listener's head and invoking comprehension. The first mental effect, hearing a speaker's words, is unwilled. The second, comprehension, is probably also unwilled in that the normal listener experiences it whether she wants to or not. But the next effect, agreement, is only brought about through the will of the listener. This effect is the focus of the analysis, and the one that I call "important."
It follows that a lot turns on the term "important," (34) a term which is so far undefined and perhaps indefinable. This term denotes a pragmatic analysis that cannot be reduced to a simple formula. That fact notwithstanding, in most cases the most important effect--the one that is the subject of...
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