In this ambitious and fertile book, Samuel Nelson proposes to reconceptualize the theory of freedom of speech independently of American constitutional law. The effort offers insights into the limitations of constitutionally founded free speech theories and an intriguing proposed alternative, which Nelson dubs the “pluralist” framework. His framework seems especially suited for honoring justifications for freedom of speech other than the search for truth or democratic debate and for addressing restrictions on speech by authorities other than government (e.g., private employers).

Roughly the first half of the book seeks to reject standard justifications for freedom of speech, each of which, Nelson argues, is limited by the First Amendment framework and therefore protects only certain types of speech. Chapter 2 focuses on “libertarian” theories, the author's term for the dominant approach in First Amendment law (perhaps better called “progressive” after their origins in the Progressive Era and American pragmatism), which justify freedom of speech for its service to democratic deliberation and advancement of truth in the marketplace of ideas. He argues that libertarian theories are well suited for analyzing governmental threats to political speech, but distort some types of speech, particularly in the arts, by forcing them into the category of “political” speech, and generally do not adequately address nongovernmental threats to speech, “market failure” in the marketplace of ideas, and the possibility that some speech ultimately may undermine democracy itself.

“Expressivism” (Chapter 3) justifies freedom of speech as a good in itself (not, as the progressives would have it, in service to public deliberation) that is essential to individual creative self-expression and self-realization. Nelson argues that existing expressivist theories are well suited for defending artistic and religious speech but fail to explain why speech as a form of self-expression should be protected when other forms (e.g., religious practices) may be regulated. Expressivist theories, he argues, also fail to adjudicate between the value of self-expression and other goods that may be harmed by such expression. He proposes revising expressivist approaches by identifying speech as an act of the human individual essential to the pursuit of freedom.

Egalitarian theories, the subject of Chapter 4, justify freedom of speech on the basis of the value of equality of either status or respect. Theorists favoring equality of status, Nelson argues, ignore the problem of private restrictions on speech and would extend protection to much hate speech, views that he describes as problematic. Theorists favoring equality of respect, he argues, provide no original defense of freedom of speech (and, indeed, they probably were not aiming to provide such a justification) but, rather, focus on justifying a hate speech exception to freedom of speech. Neither line of theory, in Nelson's view, offers a compelling comprehensive justification for freedom of speech.

Having identified various limitations of prominent theories of freedom of speech, the author devotes the second half of the book to his alternative pluralist framework. In the tradition of John Austin (How to Do Things with Words [1962]), Nelson defines speech as an act that is meaningful only within the context of shared conventions and of recognition by hearers. In context (of the “intent” of the speaker and recognition by the audience), we may categorize a number of types of speech acts (some are political, some artistic, some religious, and so on) and, it turns out, Nelson believes that accurately categorizing particular speech acts is crucial for assessing the extent to which they should be free of restriction. As different speech acts serve different purposes and pose different sorts of challenges to competing values, his framework “seeks to identify the type of speech act an event represents” (p. 146) and then seeks to balance the value of that act against competing social values. Thus, an act is art if its local observers see it as art; it is a political speech if its immediate hearers perceive it as such; it is a provocative slap if its immediate hearers perceive it that way. Whether or to what extent particular speech acts should be protected, Nelson seems to suggest, depends on a case-by-case assessment of the benefits and harms of the speech.

Although the author often suggests that his framework offers to protect speech more broadly than do dominant theories, I am left wondering whether its protections ultimately would be less vigorous. Although the framework would protect some speech from private regulation, it also appears to be conservative in its orientation: Speech acts are more easily defensible within the framework if they fit comfortably within established and relatively localized conventions. Speakers seeking to defend their right to speak “may often have to do more than simply prove that a speech act was performed” (p. 154) because, in his framework, much depends on how it is perceived. For Nelson, whether a particular act that is clearly intended as a communication even qualifies as “speech,” and, if it qualifies as speech, whether it deserves protection, depends on the “reaction” of listeners and the act's “effects” (p. 154). Thus, he suggests, flag burning (at least near a veterans' parade) should not be a form of protected speech because many veterans perceive it not as speech but as a virtual slap in the face; whether an instance of guerilla street theater should be protected depends on whether it communicates a comprehensible message to bystanders (pp. 154–56). Although Nelson at one point celebrates speech as crucial to individual creative development, it becomes clear that under his framework any speech act that challenges observers by crossing or playing with conventional boundaries appears to be on shaky ground. With conventions so privileged, I suspect that in any applications of the framework to particular cases, the relative political power of the groups in question and, more fundamentally, the conventionality of their claims would play a significant role in fixing the identity of disputed speech acts (are they art? political satire? and so on) and their level of protection.

Beyond the First Amendment is a provocative, well-written effort in normative legal theory. It suggests the rich possibilities available to political theorists of freedom of speech if they found their thinking in the traditions of political theory rather than in constitutional law.