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On Freedom of Expression, 88 Yale Law Journal 1105 (1979)


Mill's essay On Liberty begins with an introduction that ends in an apology. As he approaches his famous chapter, Of the Liberty of Thought and Discussion, he writes: "Those to whom nothing which I am about to say will be new . . . may . . . , I hope, excuse me, if on a subject which for now three centuries has been so often discussed, I venture on one discussion more."

One hundred and twenty years later, I too apologize for venturing on "one discussion more," and for calling that discussion On Freedom of Expression. I use the title strictly out of respect: I do not know how to think about this subject without Mill. My explanation for one discussion more is simply that I continue to have difficulty with two fundamental, interrelated questions that any theory or hypothesis about liberty of expression must resolve. First, why should expression have greater immunity from government regulation than most other forms of human conduct; second, what are the limits of this immunity?

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