I. Introduction



II. The First Amendment Freedom of Speech: A Hermeneutic Approach

A. Justice Black and Protestant Theology

B. Originalism and Schleiermacher's Hermeneutics

C. Gadamer's Hermeneutics and Law as Interpretation

D. Theory and Tradition: Habermas' Critique of Gadamer's Hermeneutics



III. The Quest for a Theory of Free Speech

A. The Search for Truth

B. Self-Government

C. Autonomy

D. Self-Realization

E. A Plurality of Principles

F. Some Lessons for a New Theory



IV. The Theory of Communicative Action

A. Speech and Communicative Action: The Theory of Speech Acts

B. The Distinction Between Communicative Action...

I. Introduction



II. The First Amendment Freedom of Speech: A Hermeneutic Approach

A. Justice Black and Protestant Theology

B. Originalism and Schleiermacher's Hermeneutics

C. Gadamer's Hermeneutics and Law as Interpretation

D. Theory and Tradition: Habermas' Critique of Gadamer's Hermeneutics



III. The Quest for a Theory of Free Speech

A. The Search for Truth

B. Self-Government

C. Autonomy

D. Self-Realization

E. A Plurality of Principles

F. Some Lessons for a New Theory



IV. The Theory of Communicative Action

A. Speech and Communicative Action: The Theory of Speech Acts

B. The Distinction Between Communicative Action and Strategic Action

C. Discursive Justification: The Ideal Speech Situation

D. Communicative Ethics: Discursive Will Formation

E. Lifeworld and System



V. A Theory of Freedom of Communicative Action

A. Scope of the Freedom: Communicative Action and Not Strategic Action

B. Content of the Freedom: Three Principles

C. Problems Applying the Model of the Ideal Speech Situation

D. Justification Revisited: Integrating Existing Theories



VI. Application to Problems in First Amendment Doctrine

A. Distinguishing Communicative Action from Strategic Action

B. Realizing Equality of Communicative Opportunity

C. Tension Within the Theory: Libel of Public Figures



VII. Conclusion

A. Explaining First Amendment Decisions: Reconstructive Science and Judicial Intuition

B. Freedom of Communicative Action: The Tension Between Ideal Theory and Realization

C. Legal Thought As Social Theory: Implications for the Theory of Communicative Action



Words are deeds.

We are still searching for an adequate theory of the first amendment freedom of speech. Despite a plethora of judicial opinions and scholarly articles, there are fundamental conflicts over the meaning of the words "Congress shall make no law . . . abridging the freedom of speech." [FN2] This Article examines the possibility that recent developments in social theory can aid our understanding of the freedom of speech. My thesis is that Jurgen Habermas' theory of communicative action can serve as the basis for an interpretation of the first amendment that fits the general contours of existing first amendment doctrine and provides a coherent justification for the freedom of speech.



Haberma...

We are still searching for an adequate theory of the first amendment freedom of speech. Despite a plethora of judicial opinions and scholarly articles, there are fundamental conflicts over the meaning of the words "Congress shall make no law . . . abridging the freedom of speech." [FN2] This Article examines the possibility that recent developments in social theory can aid our understanding of the freedom of speech. My thesis is that Jurgen Habermas' theory of communicative action can serve as the basis for an interpretation of the first amendment that fits the general contours of existing first amendment doctrine and provides a coherent justification for the freedom of speech.



Habermas' theory takes as its point of departure the speech act theory developed through contemporary analytic philosophy and linguistics.
The central theme of speech act theory is that speech is action; communication coordinates individual behavior through achieving rational understanding.