Can otherwise constitutionally protected speech lose its protection because of the speaker’s supposedly improper purpose?
The Supreme Court has sometimes said “no” — but sometimes it has endorsed tests (such as the incitement test) that do turn on a speaker’s purpose. Some lower courts have likewise rejected purpose tests. But others hold that, for instance, a purpose to annoy or distress can turn otherwise protected speech into criminal “harassment,” or that a selfish purpose can strip protection from otherwise protected government employee speech.
This Article analyzes purpose tests in First Amendment law, and concludes that such tests are on balance unsound; the protection of speech should not turn on what a factfinder concludes about the speaker’s purposes.
Spice up your drive to work by listening. Thanks to Boris Mindzak for his production work on this.