Abstract

Liberals agree that free speech should be protected, where speech is understood broadly to include all forms of intentional communication, including actions and pictures, not merely the spoken or written word. A surprising view about free speech in some liberal and legal circles is that communications should be protected on free-speech grounds only if the communications are mentally mediated. By “mentally mediated communication” we mean speech which communicates its message in such a way that the message can be rationally evaluated by hearers, and causes the hearers to believe it, when it does, through the mechanism of those hearers employing their rational capacity to judge that it is correct. The mental-mediation or persuasion principle, as it is sometimes called, has some important legal and public policy implications. It has been applied to argue that certain forms of expression, despite being forms of speech or expression, lack even a prima facie claim to protection on free speech grounds. Our central aim is to show why the mental mediation principle is mistaken. Liberals should think that some speech which is not mentally mediated deserves protection for the very same reasons that speech which is mentally mediated is often thought to deserve protection.