Speech as Conduct: Generally Applicable Laws, Illegal Courses of Conduct, “Situation-Altering Utterances,” and the Uncharted Zones


Eugene Volokh


In many recent free speech controversies -- over crime-facilitating speech, hostile environment harassment, child custody decisions, doctors’ recommending medical marijuana to their patients, pro-jury-nullification advocacy, and more -- defenders of the speech restriction have argued that the speech isn’t really speech, but is instead tantamount to conduct. Sometimes people argue that there’s no First Amendment problem when speech is restricted under a generally applicable law that covers both speech and conduct. Sometimes they argue that speech may be punished if it’s “an integral part of conduct in violation of a valid criminal statute.” Sometimes they argue that the speech should be treated as conduct because it constitutes a “speech act” or a “situation-altering utterance.”

This article critiques such “speech as conduct” arguments. The arguments, I contend, are fundamentally misguided (at least when the restriction applies to the speech because of the communicative impact of the speech), would often justify too much speech restriction, and tend to lead courts and commentators to focus on the wrong First Amendment questions.


Constitutional Law

Date of this Version

September 2004