My Photo
Blog powered by Typepad

« Dialogue on the Second Amendment | Main | The Virtues of Courts Martial »

July 11, 2006


Dean C. Rowan

Perhaps there's no reason not to start teaching the First Amendment from even beyond the periphery. See Frederick Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 Harv. L. Rev. 1765 (2004), in which Prof. Schauer discusses the manifold instances of speech which are simply not affected by the doctrine.

Judging from the precis in this posting--I haven't RTFA--I think I'd concur with much of Prof. Volokh's take, except for broad implications of the assumption underlying this:

"He argues that, though speech by one parent critical of the other may cause psychological damage, we might be mistaken to think of that as a real harm."

I think it's more profitable to regard speech as totally ineffectual. There are, in short, no speech acts. In the context of family, the damage is more a matter of institutional dynamics than semantics or mere "expression." Therefore, there's no need to minimize the very real harms purportedly "caused" by speech, because they aren't. They're caused by the insufferable, even if silent, relationships stewing and sometimes exploding in a fucked up family. But maybe the only choice for judges is to use speech as a proxy for abusive exercises of power within these relationships.

I'm disturbed that this take of mine conflicts with another position with which I'm sympathetic, that represented most succinctly by Catharine MacKinnon's Only Words. But even there, I think Prof. MacKinnon is highlighting the vectors of power, the "act" part of a "speech act."

The comments to this entry are closed.