UCLA School of Law

It is well understood that a free speech regime needs principles of speech regulation that delineate what speech is protected from sanctions and what speech may be subject to sanctions. It is less well recognized, yet increasingly important, for a free speech regime to articulate principles of interpretation that delineate what content may be attributed to speakers for the purpose of imposing otherwise legitimate legal sanctions. Drawing on both doctrinal and philosophical arguments, this Article defends a heretofore unarticulated First Amendment principle of interpretation that places guardrails on attributing content to lay speakers that they do not explicitly articulate.  Specifically, an anti-imputation principle, implicit in a number of First Amendment decisions, imposes a strong (though rebuttable) presumption against levying legal sanctions against lay speakers for objectionable content they do not explicitly say. This presumption holds even when explicit assertions of that objectionable content could permissibly be subject to sanctions and even when that objectionable content may be reasonably or is commonly inferred from what the speakers have explicitly said. The breathing space this sanction-resistant zone creates is essential for speakers to articulate and refine their thoughts and to make, identify, and correct their mistakes through interchange with others. It protects speakers from the prospect of adverse or uncharitable interpretative audiences.To realize the values of freedom of speech and to provide speakers breathing room,  especially about divisive issues, the principles of interpretation that ground legal sanctions  should not reflexively track conversational meaning and the reasonable understanding and inferences ofaudiences or observers. To protect an expansive common dialogical space for speakers and audiences to air, discuss, and better understand matters of public concern, legal sanctions should only be triggered by what speakers explicitly say absent strong contextual evidence that they and their audience should converge on a distinct, regulable meaning.