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Nearly thirty years ago, Frederick Schauer published an article asking the question," Must speech be special?"'That question, he said, was not the same as the question," Is speech special?" The first question was about whether an adequate theory of the First Amendment must explain why the law provides special protection for speech. The answer to that question was," Yes." Otherwise, the theory could not provide guidance in determining the meaning of the constitutional text. But the answer to the second question was prob-ably," No." As a matter of political morality, speech cannot be dis-tinguished from many other activities as warranting special constitu-tional protection. These conflicting answers produced what Schauer described as an" intellectual ache." 2 On the one hand, the constitu-tional text makes speech special; on the other hand, there is no sound normative argument to support the text. If we think …