In the previous chapter I established that freedom of expression is not implicated by governmental regulations and acts that affect what messages are received, for all regulations and acts have message effects. What remains as a candidate principle for defining the scope of freedom of expression is principle (5), which holds that freedom of expression is implicated whenever government acts for the purpose of affecting what messages are received. In the next two chapters I shall examine principle (5) in terms of what laws come within it and whether invalidation of such laws in the name of freedom of expression is morally warranted. In this chapter, however, I want to raise some problems that attend any principle that makes the validity of laws turn on the purposes of the government in enacting them.

The Various Venues of Governmental Purpose

There is no difficulty in locating the governmental purpose to affect messages in laws that by their terms predicate civil or criminal liability on communicating messages with specified content. Thus, a law forbidding “public displays of contempt for the American flag” (such as burning an American flag in public with the intent to express hostility toward America or American policy) comes squarely within principle (5). Its governmental purpose to affect messages is found on its face. It is the type of law that the next chapter addresses.