Why should musical compositions and artistic images be included among the types of expression covered by free speech principles? One way to answer this question is to show how expression in nonverbal media can be functionally similar to other types of verbal expression. But this leaves us with an intuitively unsatisfying explanation of why free speech principles cover nonverbal creative expression that does not functionally emulate literal speech. In this article, as an alternative justification, we develop and defend the idea that musical and pictorial expression‚ much like literal speech, can be media through which people think aloud, as opposed to mere tools for the transmission of thought. We use this proposal to provide a more robust justification for including nonverbal creative expression in the scope of free speech coverage, and we outline some of the practical policy implications that come with adopting this justificatory strategy.

The rich evade conviction more often in criminal trials than the poor. They also win more often in civil cases against the poor. Given that money buys better lawyers and better lawyers are instrumental in winning in adversarial trials, the rich have a structural advantage in laissez-faire trial systems. Such inequality is concerning. In a landmark article, Alan Wertheimer argues that we should level down legal resources in civil cases on the basis that doing so increases the adversarial system’s accuracy—that is, its chance of reaching correct decisions. In a more recent article, along similar lines, Shai Agmon also advocates that, given some constraints of adequacy, legal resources should be leveled down in both civil and criminal cases. This article aims to show that such arguments fail because leveling down legal resources could decrease a trial system’s accuracy, making it worse by Wertheimer’s or Agmon’s own criteria.