The "meaning" of First Amendment Speech.

At the heart of the First Amendment guarantee of freedom of speech, and at the center of the United States Supreme Court's opinions safeguarding that freedom, lie two "simple" yet deeply complicated and often paradoxical questions: what meaning should be given a message; and from what perspective - the speaker's, the text's, or the audience's - should the question of meaning be addressed? Judging a communication's meaning is a subtle task involving various interpretative methodologies, for the message intended by a speaker often varies from the text or the audience's perception.

At common law, for example, a speaker was responsible for a statement that was understood to imply marital infidelity even though the speaker had no such implication in mind and the text conveyed no such assertion. Thus in the classic case of Morrison v. Ritchie & Co. a newspaper was held liable for publishing a story that the plaintiff, whom some readers knew had been married for only a month, had given birth to twins.(1) In such cases the common law placed a message's meaning in the hands of the audience, as judged by the jury. The Supreme Court has held that the First Amendment is not violated by such a rule of interpretation.(2)

Liability frequently rests upon the meaning of a communication. Thus, as a matter of First Amendment law the assignment of meaning is a central question in free speech cases, and the Supreme Court is inexorably drawn into deciding how meaning is to be ascertained and what the precise meaning of a disputed communication is. The Court cannot escape becoming engaged in a complex interpretive enterprise based on intent, textual analysis, and audience understanding and reaction. The quality of a Monet, for example, cannot be judged without engaging in all of these interpretive methodologies. Even after doing so, of course, the resulting qualitative judgment may remain deeply personal and idiosyncratic to the person doing the interpreting. So it is, also, with speech.

But judgments about the meaning of speech in the legal system, where criminal or civil consequences ensue for the speaker, must by necessity reject any universal rule that all meaning is idiosyncratic. Such a rule would disable the legal system from regulating conduct that occurs through the act of speaking, whether that conduct be extortion, perjury, defamation, fraud, or harassment. The Supreme Court does not have the art critic's luxury of offering a judgment without consequence. The Court must instead draw a series of lines: the first between those communications whose meaning should be treated as idiosyncratic (and thus subject to no general legal consequences) and those that should not; the second between those communications in the latter group whose meaning can be assigned (in whole or part) through application of general rules of interpretation (the speaker's intent prevails, for example, or the words or images in the text itself, or the audience's perception), and those whose meaning is judged on a case by case basis; and a third among categories of speech to which one or another general interpretive rule applies. A few examples will illustrate the varying approaches the Court has taken to the assignment of meaning to communications.

A. Idiosyncratic Meaning

In the field of the creative arts, literature, and creative writing the Supreme Court has often adopted the position that meaning is not a question for courts, but is instead an idiosyncratic matter best left to the individual and freed from legal consequences.(3) As Justice Scalia recently put it, "It is quite impossible to come to an objective assessment of (at least) literary or artistic value, there being many accomplished people who have found literature in Dada, and art in the replication of a soup can."(4) Thus the meaning conveyed by a poem or a song is a question usually greeted by judicial silence: it is not taken as a given, or assumed, but is rather treated as legally irrelevant - beyond the judicial ken, so to speak.(5)

But this approach is not universally applied even to all cases involving the fine arts and literature, and its implications must be clarified and circumscribed. The Court, for example, has carved fairly broad swaths out of the rule for a number of subject matters. If the meaning might be obscene or indecent, the fact that the communication is claimed to be art or literature does not foreclose interpretive steps geared toward determining whether those indecent or obscene meanings are present.(6) Similarly, if the subject matter of the speech is claimed to be commercial, even if that meaning arises out of the creative process of advertising, the Court will undertake to interpret the communication's meaning to determine if that is so.(7) Finally, if the allegation is that a communication is defamatory, even if it is artistic or literary, the Court will apply rules of interpretation to judge its meaning, thus not treating the artistic meaning as idiosyncratic and free of legal consequence.

Sufficiently important public interests, it appears, serve to limit the application of any presumptive rule of idiosyncratic meaning even as applied to speech which is aesthetic or artistic or literary in character. We can view this approach as either setting a definitional limitation on the aesthetic, or as carving a set of exceptions from an otherwise generally applied background rule of declining to judge meaning for artistic or creative material. The Supreme Court has been studiously silent on this subject, making it impossible to know which, if either, alternative accounts for the Court's decisions, and precisely what qualities (visual, emotional, genre-based, etc.) might contribute to a distinction between what I will call aesthetic and non-aesthetic expression.

B. Rules Governing Meaning

The second broad category of cases in which meaning is assigned consists of those instances in which the Court, usually explicitly, applies general rules that govern the way meaning is ascertained. The rules vary, sometimes resting meaning on the audience's interpretation; at other times basing it on the speaker's intent; and in yet other settings resting meaning on the literal text (or descriptive image) of a communication.

1. Received Meaning

Perhaps the clearest example of the first rule, where audience interpretation dictates meaning, is obscenity.(8) In Miller v. California(9) the Court held that a communication is obscene if the trier of fact determines that, to "the average person applying contemporary community standards' ... the work, taken as a whole, appeals to the prurient interests"; that "the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and [that] the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."

The Miller test establishes an explicit and unambiguous rule governing the interpretation of meaning. The rule has two largely complementary parts. First, the determination of meaning in accordance with the substantive criteria is to be made by the trier of fact. This means that the interpretation of meaning is made a "question of fact" (as distinguished from a "question of law"). Moreover, the fact determination is to be made by the trier of fact, usually a jury (rather than a judge), on the record of the proceeding. Inasmuch as the questions of fact (whether the allegedly obscene material appeals to prurient interests, depicts or describes sexual conduct, is patently offensive, lacks serious value) focus on the content of the communication as interpreted by the jury (or community), not on the speaker or the text alone, the interpretation of meaning is exclusively rested on the perception of an audience - the jurors. Indeed, the jury is entitled to rest its entire judgment on a viewing of the challenged material (film, book, pictures, for example), unaccompanied by any further evidence.(10)

The second aspect of Miller's interpretive regime is that, at least with respect to the communication's appeal to prurient interest, the meaning is to be judged by "contemporary community standards." In other words, the perception of an audience consisting of the local community is to determine the meaning to be ascribed to the communication. The jury's role is to interpret the material through the lens of its community, based on the jurors' individual and collective judgments about the norms and values of the community. In the end, however, this undertaking most likely results in the community-based interpretation collapsing into the jury's own collective interpretation which, for all practical purposes, serves as an approximation of the community's interpretation.

The important point, however, is that in obscenity cases, as in indecency cases, a communication's meaning - from which significant legal consequences flow - is governed by the interpretation given it by the audience. Communication is a complex phenomenon, but it can roughly be described as a process involving a speaker, a text, and a receiver, or audience. A communication's meaning is a product of all three stages; indeed it usually involves the interaction and reinteraction of each stage, as well as the influence of persons and groups external to the communication. As content is conveyed, meaning is ascribed by an audience, meaning is reshaped by the speaker and the text, influenced by forces governing the perception of the audience, and finally modified or perhaps radically transformed by the medium in which it is transmitted.

Hearing comedian George Carlin deliver his famous "seven words" routine is certain to yield different meanings to a person witnessing the act in a theater as opposed to someone seeing it on television as opposed to someone hearing it on radio as opposed to someone reading from a text. It would likewise have a different meaning to a Baptist than to an atheist; or to an American than to a Saudi. These interpretive differences serve to explain, in part, why the meaning of all communication is, to some degree, idiosyncratic, and why communications scholars ordinarily describe communication as a process of negotiated meaning.(11)

In Miller the Supreme Court, perhaps for good and certainly for practical reasons, abruptly short-circuited the interpretive process, permitting all elements but the audience and the community and cultural forces working on it to be cut out of the assignment of meaning. Perhaps the subject of sex is sufficiently universal and one-dimensional in the meaning it conveys to warrant application of such a blunt instrument. Perhaps considerations of subject matter and content, based on cultural and social ideology, justify such an approach even if it is acknowledged to yield gross error. Whatever the justification, constitutional or not, the Court in the obscenity cases has determined that meaning will be ascribed and that the process of ascribing it will be based on a clear, though oversimplified, rule of decision: the jury as the audience controls a communication's meaning.(12)

2. Intended Meaning

Obscenity is not the only field in which the Court has adopted a rule governing the interpretation of a communication's meaning. But the rules that have been adopted are not always the same. In defamation, for example, the common law's traditional reliance on the jury as the trier of fact, and thus as the principle interpreter of a statement's meaning, has been limited in public libel cases by a set of constitutional rules that operate to shift the interpretive authority to the speaker. Thus a speaker cannot be held liable for defaming a public official or public figure unless she published a defamatory statement with "actual malice." Actual malice, in turn, requires that the defamed party prove that the publisher knew, at the time of publication, that the statement was false, or actually entertained serious doubts as to its truth.(13)

The actual malice requirement thus functions as an interpretive trump card, requiring that the defamatory meaning contained in the text or understood by the audience be overridden by the intention of the speaker. A statement implying to its audience that a public official is corrupt, or even containing the specific allegation, is not legally defamatory unless the author was aware of the implication, thus intending it, and knew it to be false or actually entertained serious doubts about its truth at the time of its publication.(14)

The actual malice test, of course, operates not as a rule of liability, but as a privilege, protecting statements that would otherwise be tortious, and thus it does not go to meaning, as such, but instead legal responsibility for meaning. But the rule, privilege or not, governs the legal consequences of meaning and thus governs the law's interpretive process, just as the rule of audience as interpreter of meaning functions in the obscenity cases. In neither instance would the Court claim that the meaning thus given for legal purposes is the "true" meaning of a communication; it is instead its legal meaning as determined in both cases by legal rules, governed by the First Amendment, for the ascription of meaning. Both approaches, obscenity and defamation, moreover, are blunt edged and crude as instruments by which to judge the infinitely more complex process of interpreting a communication's meaning.

3. Textual Meaning

A final example of the Court applying a fixed rule of interpretation of meaning is found in the "clear and present danger" test, which is applied in cases involving incitement to violence or illegal action.(15) Unlike the audience-based approach of obscenity or the speaker-based approach of the actual malice test, a central and dispositive element of the clear and present danger test looks only to the text of a communication, relieving the speaker of liability if the text does not contain words that are "directed to" inciting an audience to violence.(16) Thus in Brandenburg v. Ohio(17) the Court held that speech advocating illegal violence at a KKK meeting could only be proscribed when "such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."

The "directed to" language requires that the words used by a speaker - the text read literally - contain language specifically and literally calling on people to engage in illegal activity immediately. Thus language containing no express words but conveying an implied meaning of direct incitement to an audience - as with the parent of a raped child reading the Bible's "eye for eye" language to a mob gathered before a jail in which the alleged rapist is incarcerated - would not constitute prohibitable incitement to violence. In such a case the communication's meaning would be governed by its text, not by the speaker's intention or the audience's understanding.

This result is justified in First Amendment terms as a necessary limit on the idiosyncratic meanings that communications can have. It is thus a rule of prudence designed to prevent persons from remaining silent for fear of the consequences that might flow from unanticipated audience interpretations.(18) The rule functions, like libel, as if it were a privilege, limiting possible meanings but not denying their validity. Yet, unlike libel, the incitement test's rule that the text often governs meaning(19) is embodied in the legal definition of incitement itself, and thus of the speech's meaning. This difference is notable but not determinative; the point is not how the rule of interpretation is manifested, but rather that it is applied.

These different rules of interpretation of meaning - speaker intent, text, and audience/community - are reminiscent of the Court's historic and unending struggle over approaches to interpreting the meaning of the Constitution. In present day terms, the dispute involves the insistence by some Justices that the only legitimate method for ascertaining the Constitution's meaning is "textualism," by which the Constitution's words are given determinative weight. Other Justices insist with equal conviction upon "intentionalism," by which the intentions of the authors of the Constitution receive paramount attention. Yet other Justices resort to "interpretivism," by which the text's words and the values they reflect are given meaning by reference to both history (context) and today's widely adopted cultural and social values (audience).(20) The connection is not surprising, of course, as the two interpretive problems are really the same: how is meaning to be given a communication? What is surprising, however, is that in the First Amendment setting, unlike the Constitution-interpreting setting, such dramatically different approaches coexist and are all applied, seemingly without thought of inconsistency, by every Justice.

C. Complex Meaning

The third and final approach to interpretation of meaning applied by the Supreme Court is case and situation specific: that is, it applies in varying measure all of the elements that contribute to a communication's meaning - speaker intent, text, audience, and their dynamic interaction - in an effort to ascertain the best meaning for a given statement or image at a given place and in a given time. This approach to interpreting meaning is thus not governed by a single rule, but instead by a process of fact-based judgment. Because that process ordinarily embraces all of the elements that contribute to meaning - because it acknowledges the frequent indeterminacy of meaning and the complex and often idiosyncratic quality of the interpretive process - the situational approach to meaning tends, as a general matter, to yield speech-protective results. But its ad hoc, openly judgmental nature also makes the approach susceptible to abuse and difficult to control from the appellate level.

Perhaps the clearest, though certainly not the most famous, example can be found in the field of trade libel, and more specifically in the little-noticed Supreme Court decision in the case of Bose Corp. v. Consumers Union.(21) The Bose case involved a technologically innovative new Bose speaker, the sound from which was reported in a Consumer Reports review to "wander about the room." Bose considered the description to be very damaging to its reputation and to the reputation (and sales) of the speaker and therefore brought a suit against Consumers' Union for trade libel, or product libel.(22) When it reached the Supreme Court, it was clear that the case turned almost entirely on a question of interpretation: what did the phrase "wandering about the room" mean? It was not clear what meaning the phrase was intended to convey by the author of the review, and it was likewise unclear what those persons who read the review took it to mean. Only if it were interpreted to convey a damaging meaning would an action for product libel lie, and thus the question of meaning, which the Court addressed, was precedent to any issues of constitutional privilege, such as actual malice.

The Court's opinion is hardly a model of clarity or of interpretive sophistication, and the Court made frequent references, as if it simply couldn't help itself, to questions of privilege, negligence, and malice. But in the end the case was resolved by a fact-based process of judgment that looked to what the author of the review intended, to the literal ambiguity of the text of the review, to the interpretation given it by consumers who testified at trial, to the evidence of meaning and impact supplied by sales figures, and (perhaps most importantly) to the fact that the phrase represented an attempt to describe with words an aural and fundamentally aesthetic feeling and perception. All of these factors, considered carefully in an effort to fathom how the communication process worked in fact, and assisted in significant measure by a thorough analysis by the trial judge based on a complete record of evidence, led the Court to conclude that the meaning yielded in the communication process was not sufficiently ascertainable and generalizable to be given legal consequence. There was, in short, no single or predominant meaning that could be identified, and therefore no way to justify visiting the law's sanction on the review.(23)

A second example of situational meaning is Hustler Magazine, Inc. v. Falwell,(24) where liability for intentional infliction of emotional harm through parody was held to be violative of the First Amendment, largely, though implicitly, because a parody's meaning is too situational and indeterminate. The parody, modeled on ads for Campari Liqueur and entitled "Jerry Falwell talks about his first time," depicted Rev. Falwell recalling his "first time" as during a "drunken incestuous rendezvous with his mother in an outhouse." Only if the challenged parody were "believable" and if the publisher were aware of that meaning (i.e., its believability), the Court said, could the publisher be held accountable for liability based on that meaning. Believability, in short, was a necessary check on the indeterminacy of a message's meaning when it occurred in a genre and medium in which meaning is, characteristically, indeterminate or situational.

I will say little more here about what I term the situational approach to interpretation, other than to observe that the approach finds application in a fairly diverse range of First Amendment settings, including copyright and trademark cases, defamation and privacy cases, and many commercial speech cases. The approach tends to be used at the definitional edges of First Amendment law, where the question to be answered is whether a given communication qualifies as speech or, if it does, whether it is to receive only a limited form of constitutional protection. In contrast, the fixed rules of meaning which operate unidimensionally based on text or speaker intent or audience interpretation, tend to be employed at the heart of First Amendment doctrine. There the question is not whether a communication is fully protected speech, but instead whether the speech is sufficiently harmful or dangerous to warrant regulation notwithstanding the First Amendment's protection.

D. Conclusion: The Meaning of Speech and the Meaning of Meaning

It is hardly surprising that the meaning of a communication should be an important consideration when deciding on a communication's constitutional protection. But it is surprising that the Supreme Court addresses the question of meaning in a largely subconscious way, hardly mindful of what it is doing, and that the Court applies such varied and often radically different approaches to assigning meaning with little apparent systematic thought. In the law much of consequence turns on speech's meaning, for law is a practical discipline that visits clear consequences on its objects, be they words or deeds. In view of what is at stake, it is important that the Supreme Court begin addressing questions of meaning self-consciously and, as importantly, in a consistent and systematic fashion.

The Supreme Court's failure to develop a coherent approach to assigning meaning is a reflection of deeper ambiguity about the freedom of speech. The Court's opinions reflect genuine uncertainty about what the First Amendment protects: Does it protect "speech" itself, as a thing to be privileged independently of its origin or its use? Or does it protect the act of speaking, an exercise of the individual's liberty? Does the Constitution privilege speech, an artifact of communication, or instead its production and use by individuals?

If it is the speech, itself, that is protected, questions of meaning quickly become intractable. Whether something (a dog's bark, a bird's song, a poster on which is written "God is Dead" and no more) is speech, much less what its meaning may be, are indeterminate. The answers depend on timing, context, and the idiosyncrasies of those who witness the potentially communicative thing. It is difficult, if not impossible, to construct an approach to meaning on such uncertain and shifting ground. It is even more difficult, for obvious reasons, to build upon that ground judgments about the social value of the speech, as the Supreme Court has often done.

If, instead, the First Amendment's business is privileging the act of speaking - expressing oneself to one or more other persons - meaning becomes a more tractable enterprise. If it is the liberty of the speaker that is principally at stake, questions about the precise meaning of what is communicated become secondary. The Constitution's protection will be centered on protecting the liberty of the individual speaker to speak, whatever meaning results. What is important, in short, is not the message, but the messenger's liberty to deliver it. And the liberty interest is not dependent on the value, social or political, of the message. Such questions become relevant, if at all, only after deciding whether liberty is at stake (a question that concerns the speaker's intent and little else), and they are relevant only in determining whether the speaker's liberty produces substantial harm to others, thus warranting regulation to limit the harm. The question of harm is independent of, and subordinate to, the question of liberty; it does, unlike liberty, often depend on meaning; but an approach so structured limits the uses to which meaning is put. It effectively shifts the burden of proof on meaning, making it relevant only to the extent that government can prove that a harm-producing meaning has occurred in sufficient measure to warrant regulation of the speaker's liberty to speak.

Finally, if the First Amendment privileges the use to which speech is put - by the reader or listener, for example - questions of meaning assume paramount importance but in a very different way from an approach based on privileging the speech, itself. The question will be whether the recipient put speech - indeed, any communicative stimuli - to productive expressive use. One need not assign meaning to the "speech" to make such a determination. The question of meaning, instead, goes only to the meaning given by each individual user, and whether that meaning was put to substantial expressive use by that individual. Meaning, in other words, is tractable because it is restricted to each particular recipient; its proof, however, may be intractable, as may be the question whether the use was expressive. More fundamentally, a use approach cannot be limited to use of stimuli that we would ordinarily think of as speech, but instead would privilege the use of any stimuli, whatever its nature or origin, so long as it is used in an expressive way. This is why, as a general matter, the Court has limited the First Amendment to privileging the act of speaking and speech, but not the right to receive and use speech.

These are three radically different approaches to the First Amendment: freedom of speech (focusing meaning on text and audience); freedom to speak (focusing meaning on intent); freedom to receive speech (focusing meaning on the audience). Each implies very different uses of, and therefore approaches to, assigned meaning. Until the Court comes to grips with the underlying theory of freedom contained in the First Amendment speech guarantee, it can not begin to approach questions of meaning in more coherent and understandable ways.

NOTES

1. Morrison v. Ritchie & Co., 4 Fraser, Sess. Cas., 645, 39 Scot. L. Rep. 432 (1902).

2. Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990).

3. See George Bleistein v. Donalson Lithographing Co., 188 U.S. 239, 251-52 (1903); Pope v. Illinois, 481 U.S. 497, 504-505 (1987) (Scalia, J., concurring).

4. Pope v. Illinois, 481 U.S. 497, 504 (1987) (Scalia, J., concurring).

5. Meaning is not always irrelevant, of course, as for example in a case in which a poem's meaning is determinative of the legal claim. In such cases courts will focus on questions of meaning; often, however, concluding that no single meaning is ascertainable and therefore there can be no liability. See Prosset & Keeton on Torts, [section]112 at 773-77, 780-82, 796 (5th Ed. 1984).

6. See, e.g., Memoirs v. Massachusetts, 383 U.S. 413 (1966); Miller v. California, 413 U.S. 15 (1973); Jenkins v. Georgia, 418 U.S. 153 (1974).

7. E.g., Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n., 447 U.S. 557 (1980); Bates v. State Bar, 433 U.S. 350 (1977); Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985).

8. The constitutionally troubled field of "indecency" applies the same approach, though without the protection accorded by the rule that otherwise obscene material does not include material that possesses serious literary, artistic, political, or scientific value. Because of the constitutional uncertainty surrounding the Court's new indecency jurisprudence, my discussion will focus on the more certain ground of obscenity law. See ACLU v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996), prob. juris. noted, 117 S.Ct. 554 (1996); Denver Area Educ. Telecommunications Consortium v. F.C.C., 116 S. Ct. 2374 (1996); Turner Broadcasting Sys., Inc. v. F.C.C., 512 U.S. 622 (1994).

9. 413 U.S. 15, 24 (1973).

10. See Jenkins v. Georgia, 418 U.S. 153 (1974).

11. See, e.g., Bennett, Texts, Readers, Reading Formations, 16 Bull. of the Midwest Mod. Lang. Ass'n. 3-17 (1983); U. Eco, The Role of the Reader 3-43, 47-89, 125-172, 175-199 (1979); Ulric Neisser, The Process of Vision, Scientific American, No. 3, at 204-14 (1968); Christian Metz, Aural Objects, 60 Yale French Studies 24-32 (1980); Stephen R. Shiffer, Meaning (1972); Neisser, Cognitive Psychology 173-276 (1966); Austin, How to Do Things with Words (1962); Ayer, Language, Truth, and Logic (1936); Wittgenstein, Philosophical Investigations (3rd ed. 1958).

12. Obscenity is not the only First Amendment setting in which audience interpretation is the governing approach to meaning. In Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988), First Amendment protection was accorded a Hustler Magazine parody of Reverend Falwell because it was political satire, a conclusion that rested on the jury's finding that the publication "could not 'reasonably be understood as describing actual facts ... or actual events....'" Id. at 57.

Other settings include religious speech, where the question is whether a governmental use of a religious symbol constitutes an endorsement; trademark infringement, where confusion about product identification is at issue; and the public disclosure privacy tort, where outrageousness is the generally applied standard.

13. New York Times v. Sullivan, 376 U.S. 254 (1964); St. Amant v. Thompson, 390 U.S. 727 (1968); Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990); Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (1991); see Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657 (1989).

14. See Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990); C. Thomas Dienes & Lee Levine, Implied Libel, Defamatory Meanings, and State of Mind: The Promise of New York Times v. Sullivan, 78 Iowa L. Rev. 237 (1992).

15. It should be noted that the "clear and present danger" incitement test also contains elements based strictly on the specific intent of the speaker, thus making the speaker's communicative intention determinative of meaning for legal purposes even though the audience understood the communication to contain a different meaning. See Brandenburg v. Ohio, 395 U.S. 444 (1969).

16. See Brandenburg v. Ohio, 395 U.S. 444 (1969); Gerald Gunther, Learned Hand and the Origins of Modern First Amendment Doctrine: Some Fragments of History, 27 Stan. L. Rev. 719 (1975).

17. 395 U.S. 444, 447 (1969).

18. See Masses Publishing Co. v. Patten, 244 F. 535 (S.D.N.Y. 1917) (L. Hand, Judge).

19. The rule operates only one way. Thus, a communication containing direct words will not therefore be subject to liability. Other requirements must be met, and more importantly in such instances the speaker is entitled to prove that notwithstanding that text's containing words of direct incitement, the audience did not so understand (or interpret) it.

20. See Robert N. Clinton, Original Understanding, Legal Realism, and the Interpretation of "This Constitution," 72 Iowa L. Rev. 1177 (1987).

21. 466 U.S. 485 (1984).

22. Trade libel or product libel, more generally known as injurious falsehood, is a distinct tort from the defamation tort, protecting a product or service, not an individual or entity, and resting firmly at common law on a requirement that the plaintiff prove falsity and actual economic harm, rather than on defamation's defense of truth and liberal damage rules, but the torts are also highly similar. See Prosset & Keeton on Torts, 963-978; Restatement (Second) of Torts, [section]623A (1989).

23 Interestingly, much of this was accomplished under the guise of the actual malice inquiry, but that fact does not detract from the substance of the Court's analysis. See Randall P. Bezanson & Kathryn L. Ingle, Plato's Cave Revisited: Epistemology and Perception in Contemporary Defamation Law, 90 Dick. L. Rev. 585 (1986).

24 485 U.S. 46 (1988).

Randall P. Bezanson is Professor of Law at the College of Law, University of Iowa, Iowa City, Iowa.