Document Type
Article
Publication Date
2026
Abstract
Consider the following instances: A cell phone photograph picturing a man's left kneecap. A statement that the speaker thinks, "The name Josiah is really cool." A woman who runs her bicycle over a business owner in order to gain celebrity and increase attention for her new podcast. An intentional lie told to acquire a job. A student who insists on answering his math exam questions in runic symbols.
At one point or another, American courts have considered the merits found in favor of instances similar to these and other like circumstances as amounting to "viewpoints." As such, they have resulted in the highest free speech protections.
However, there has been no attempt to explain exactly what a viewpoint is and is not- certainly no attempt that squares such holdings with philosophical and analytical disciplines whose business it is to make such distinctions. Courts and practitioners largely brush past that enquiry altogether, creating conflicting holdings and mysterious rationales based on assumptions rather than reasons. The consequences are considerable.
Recommended Citation
A.G. Harmon, 13 Lincoln Mem’l U. L. Rev. 211 (2026).
