William & Mary Law Review


Speaker’s intent requirements are a common but unremarked feature of First Amendment law. From the “actual malice” standard for defamation to the specific-intent requirement for incitement, many types of expression are protected or unprotected depending on the state of mind with which they are said. To the extent that courts and commentators have considered why speaker’s intent should determine First Amendment protection, they have relied upon the chilling effect. On this view, imposing strict liability for harmful speech, such as defamatory statements, would overdeter, or chill, valuable speech, such as true political information. Intent requirements are necessary prophylactically to provide “breathing space” for protected speech.

This Article argues that, although the chilling effect may be a real concern, as a justification for speaker’s intent requirements, it proves unsatisfactory. It cannot explain existing intent requirements, and the difficulties of measuring and remedying chilling effects cast doubt on whether they could ever provide the sole justification for the choice of one intent requirement over another. The inadequacy of the chilling effect leaves the problem of speaker’s intent in need of further explanation and raises more general concerns about the use of deterrence-based arguments in constitutional law.