Persuasion, Autonomy, and Freedom of Expression

The government may not suppress speech on the ground that it is too persuasive.Except, perhaps, in extraordinary circumstances, the government may not restrict speech because it fears, however justifiably, that the speech will persuade those who hear it to do something of which the government disapproves.If speech brings about bad consequences through other means-by attracting crowds or causing litter, for example-those bad consequences can justify restrictions on the speech.'But bad consequences that come about because the speech persuades people to do certain things cannot justify suppression.This principle has, I believe, been extremely important in the development of the law governing freedom of expression in the United States.Several of the most important and controversial first amendment issues of today turn on whether this principle is correct.My objective in this Article is to consider whether it is correct.In Part I, I will define this principle, which I call the persuasion principle.The central idea is that the government may not justify a measure restricting speech by invoking harmful consequences that are caused by the persuasiveness of the speech.But "persuasion" denotes a rational process.That is, not every kind of inducement through speech should be considered persuasion.I will trace the pervasive influence of this principle in the American system of freedom of expression.In Part II, I will address the argument, commonly used to defend the persuasion principle, that suppression is unnecessary because counter-persuasion-answering arguments-will cure any evils caused by persuasion.This defense of the persuasion principle is related to several prominent theories about freedom of expression, including the famous "marketplace of ideas" metaphor.I will argue that this attempted justification for the persuasion principle does not succeed.In Part III, I will make what seems to me the best argument for the