I am reading a series of essays on free expression on the Internet. One of the authors repeatedly uses the ideas ”low value speech” and ”valuable speech”. I feel great unease. I wonder why, but think that it is because such a dichotomy assumes that we can say that this piece of speech is valuable and this other piece lacks value. Am I more comfortable with thinking about this problem in terms of ”speech” vs ”criminal threats / defamation”? Oddly I think so. I would like my speech with as few qualifiers as possible, and then I would like to define that which should not be protected as something else. As criminal defamation or illegal threats, or something else.
I think the reason is fairly straightforward: it imposes an intellectual discipline on the legislator, and associates limiting speech with a threshold test. It is a question about design.
In general there seems to be at least three legislative design strategies here: one is to try to categorize and qualify the speech as such according to its inherent value, one is to concentrate on the medium in which it is expressed (Mill actually seems to have been leaning towards this strategy, favoring deliberative debate in the newspapers of his time over talk in the street) and one is to simply define everything as speech (and thus protected) that is not criminalized, making a point out of differentiating between what is speech and what is not. All three systems can rule that something should not be protected, but in different ways – and it seems to me that the method, the algorithm, the mechanism design here really matters.
Perhaps we spend to little time thinking about legal mechanism design.