When, if ever, should speech lose its First Amendment protection on the grounds that it’s really just conduct? Let us set aside restrictions of speech or expressive conduct based on its noncommunicative aspects, for instance because the speakers are blocking traffic or are being too loud.’ Rather, let’s focus on situations in which speech is restricted because of the harm that flows from its content.
Consider, for instance, a book that explains the steps necessary to commit a particular crime. May this speech be restricted on the grounds that it constitutes the “conduct” of aiding and abetting, and is thus not subject to First Amendment protection at all? Or consider racist, religiously bigoted, or sexist statements that create an offensive work environment, an offensive educational environment, or an offensive public accommodations environment. May such statements be freely restricted because they aren’t speech but rather the “conduct” of harassment?
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