¹ This paper uses “they” as a gender-neutral third-person singular pronoun.

² T. M. Scanlon, A Theory of Freedom of Expression (1972), reprinted in T.M. Scanlon, The Difficulty of Tolerance 6-25 (2003).

³ Joseph Raz, Free Expression and Personal Identification, 11 Oxford Journal of Legal Studies 303, 303 (1991).

⁴ See, e.g., Spence v. Washington, 418 U.S. 405, 410-11 (1974) (finding symbolic expression protected speech only if “[a]n intent to convey a particularized message was present, and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it.”).

⁵ See, e.g., Joshua Cohen, Freedom of Expression, 22(2) Philosophy and Public Affairs 207 (1993) (defending an interest in communicating reflexive propositions about religious and political commitments which putatively obligate one to express them to others).

⁶ Indeed, the communicative intent restriction on expressive conduct generates a number of well-known problems when we attempt to bring artistic expression within the fold of protected First Amendment speech. See, e.g., Mark Tushnet, Art and the First Amendment, 35 Colum. J.L. & Arts 169, 204–207 (2012).

⁷ There are a number of (non-equivalent) formulations of this distinction in the literature. See, e.g., Jonathan Gilmore, Expression as Realization, 30(5) Law and Philosophy 517, 530 (2011) (contrasting “manifesting or revealing” a state of mind with “the content of a given mental state…[being] given a publicly accessible form (an utterance, gesture, inscription) with the intention that others be able to recognize that mental state from its manifestation”); Frederick Schauer, Free Speech: A Philosophical Inquiry 50–51 (1981) (contrasting expression qua “communication, requiring both a communicator and a recipient of the communication” with expression qua “any external manifestation of inner feeling”); Seana Shiffrin, Speech Matters: On Lying, Morality, and the Law 112–113 (2014) (contrasting expression qua “to display and to manifest” with expression qua “the transmission of content as well as the transmission of one’s (presumed and often implicit) agreement or belief in that content.”).

⁸ Bruce Vermazen, Expression as Expression, 67 Pacific Philosophical Quarterly 196, 207 (1986).

⁹ As he puts it, “Because virtually any activity may be a form of self-expression, a theory that does not isolate speech from this vast range of other conduct causes freedom of speech to collapse into a principle of general liberty.” Schauer, supra note 8, 52.

¹⁰ Id. at 53.

¹¹ Judith Jarvis Thomson, The Right to Privacy, 4(4) Philosophy and Public Affairs 295 (1975).

¹² H.L.A. Hart, The Concept of Law (1961).

¹³ As T.M. Scanlon points out, “an important component of our intuitions about freedom of expression has to do not with the illegitimacy of certain restrictions but with the illegitimacy of certain justifications for restrictions.” Scanlon, supra note 3 at 10. See also Elizabeth S. Anderson & Richard H. Pildes, Expressive Theories of Law: A General Restatement, 148 U. PA. L. REV. 1503 (2000) (arguing that an important dimension of normative assessment for state action involves scrutinizing the normative considerations on the basis of which that action is putatively justified, both in the equal protection context and as a matter of fundamental political morality).

¹⁴ As revealed by, for example, minutes from the City Council meeting at which the ordinance was promulgated, comments by officials charged with implementing the ordinance, and the like.

¹⁵ Thurgood Marshall memorably expresses this idea in the context of American constitutional law: “[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Police Department of Chicago v. Mosley, 408 U.S. 92, 95 (1972).

¹⁶ As Leslie Kendrick points out in Free Speech as a Special Right, Philosophy and Public Affairs 45(2): 98 (2017).

¹⁷ Scanlon, supra note 3, at 10.

¹⁸ I will, however, give a necessary condition of being self-expressive (manifesting some mental content) and a sufficient condition of being paradigmatically self-expressive (conative embodiment).

¹⁹ I follow the standard view that cognitive attitudes are distinct from conative attitudes in virtue of their “directions-of-fit.” Cognitive attitudes, such as belief, have a “mind-to-world” direction of fit: they are fulfilled just in case the way they represent the world “fits” the way the world is. Conative attitudes have a “world-to-mind” direction of fit: they are fulfilled just in case the world comes to be the way they represent it as being. The “direction of fit” metaphor is originally from G.E.M. Anscombe, Intention (1957).

²⁰ Which is not to deny that beliefs don’t also figure centrally in many people’s personalities. But at the level of attitude-type, conative attitudes on the whole seem to figure more prominently in the individuation of people’s personalities than do cognitive attitudes. And when we take a closer look at those cognitive attitudes that do seem to figure centrally in some people’s personalities—such as religious beliefs—this observation can itself be explained in large part by the fact that the relevant beliefs are intimately bound up with, and in some respects functionally analogous to, certain conative attitudes (such as commitment, valuation, or identification).

²¹ Harry Frankfurt, The Importance of What We Care About (1988) (analyzing identification).

²² Christine Korsgaard, The Sources of Normativity (2010) (analyzing practical identities).

²³ Kwame Appiah, The Ethics of Identity (2007) (analyzing social identities).

²⁴ Mitchell Green, Self-Expression 35 (2011).

²⁵ Of course, others have noticed a connection between style and self-expression, albeit not in the context of elaborating a theory of freedom of self-expression. See, e.g., Jenefer Robinson, Style and Personality in the Literary Work, 94 The Philosophical Review 228-229 (1985) (“Intuitively, my style of dress, work, speech, decision-making and so on is a mode or manner or way in which I dress, work, speak, and make decisions…[n]o less intuitively, my style of dressing, working, speaking and making decisions is typically an expression of (some features of) my personality, character, mind or sensibility”).

²⁶ Think, for example, of a TikTok video depicting its maker singing (vocal style) and dancing (corporeal style) in costume (presentational style).

²⁷ Drawing on work in sociolinguistics, Ethan Nowak describes a number of ways in which differences in verbal style encode and express different social meanings. Ethan Nowak, Sociolinguistic Variation, Speech Acts, and Discursive Injustice, 73(4) The Philosophical Quarterly 1024-1044 (2023).

²⁸ Those aspects of vocalization subject to voluntary control are classed together as a speaker’s “sociolinguistic style.” See, e.g., Penelope Eckert & John Rickford, Style and Sociolinguistic Variation (2001); Alexandra Jaffe (ed.), Stance: Sociolinguistic Perspectives (2009).

²⁹ “A voice is as distinctive and personal as a face. The human voice is one of the most palpable ways identity is manifested. We are all aware that a friend is at once known by a few words on the phone.” Midler v. Ford Company, 849 F.2d 460, 469 (9th Cir. 1988).

³⁰ Indeed, we can understand personal style as manifesting certain characteristic states of mind—i.e., states of mind that are in some sense typical of the character of the individual agent. We can also understand personal style more broadly, as a mode of expressing a range of states of mind, some of which could be said to be “characteristic” of the agent in that strong sense and some of which might not be. In what follows, I understand personal style in that broader, more inclusive sense.

³¹ For examples along these lines, see Nowak, supra note 289.

³² For recent discussions of the connection between gender transitioning and sociolinguistic style, see, e.g., Ann Cahill & Christine Hamel, Sounding Bodies: Identity, Injustice, and the Voice 71–72 (2021); Lal Zimman, Transgender Voices: Insights on Identity, Embodiment, and the Gender of the Voice, 12(8) Language and Linguistics Compass (2018).

³³ Scanlon, supra note 48.

³⁴ References to personal style run throughout Butler’s performativity account of gender in Judith Butler, Gender Trouble (1990). E.g., “Gender is the repeated stylization of the body, a set of repeated acts within a highly rigid regulatory frame that congeal over time to produce the appearance of substance, of a natural sort of being” (34); “[G]ender is an identity tenuously constituted in time, instituted in an exterior space through a stylized repetition of acts. The effect of gender is produced through the stylization of the body and, hence, must be understood as the mundane way in which bodily gestures, movements, and styles of various kinds constitute the illusion of an abiding gendered self” (191).

³⁵ In addition, many social contexts feature a higher-order social norm to the effect that one ought always to be clearly legible as either presumptively male or presumptively female, thereby proscribing nonbinary modes of personal style.

³⁶ I’ve written in terms identification, but for many individuals a more phenomenologically apt term might be desire. See, e.g., Sophie Grace Chappell, Le bon Dieu n’est pas Comme ça: Transgender in Theory and in Experience [Lecture], available at: <https://www.academia.edu/38273657/le_bon_dieu_nest_pas_comme_%C3%A7a_docx> (“You could want to have a woman’s body: to be a woman not (or not just) sartorially or socially or psychologically but physically. Whatever else other people may want, and like I say there are probably all sorts of things, it seems to me that this last—the bodily want—is the real and most basic want, in me and in other trans women: to be physically a woman”).

³⁷ For a recent discussion of how patriarchy and heteronormativity form part of the same comprehensive ideology, see Robin Dembroff, Real Men on Top: How Patriarchy Weaponizes Gender (2024).

³⁸ The film Do I Sound Gay? (2014) by David Thorpe explores voice and its connection to both sexual identity expression and sexual identity discrimination.

³⁹ In a segment of the 2008 film Examined Life, Judith Butler discusses the example of a young gay man thrown from a bridge in Maine because the way he walked was judged to embody same-sex desire.

⁴⁰ And if we did think that a particular instance of sanctioning sexual harassment was motivated by that bare, Puritanical consideration, this judgment would (I’ll wager) elicit intuitions about freedom of self-expression.

⁴¹ T.M. Scanlon distinguishes participant, audience, and bystander interests in freedom of speech in Freedom of Expression and Categories of Expression (1979), reprinted in T.M. Scanlon, The Difficulty of Tolerance 84-112 (2003).

⁴² Ronald Dworkin, A Matter of Principle 353 (1986).

⁴³ Susan Brison mentions the non-specificity of autonomy arguments as part of her general critique of this approach to defending free speech in The Autonomy Defense of Free Speech, 108(2) Ethics 312–339 (1998).

⁴⁴ Andrei Marmor, What Is the Right to Privacy?, 43(1) Philosophy and Public Affairs 3, 3–4 (2015).

⁴⁵ See David Velleman, How We Get Along (2015) (discussing folk-psychological intelligibility in the context of arguing that social interaction can be rationally reconstructed in terms of improvisational acting).

⁴⁶ James Rachels, Why Privacy Is Important, 4(4) Philosophy and Public Affairs 323–333 (1975).

⁴⁷ A number of authors have discussed this general point, especially in the context of attributing social identities. See, e.g., Asta, Categories We Live By: The Construction of Sex, Gender, Race, and Other Social Categories (2018); Miranda Fricker, Epistemic Injustice (2006).

⁴⁸ See, e.g., Stephen Darwall, Two Kinds of Respect for Persons, 88 Ethics: 36–49 (1977); Nancy Fraser & Axel Honneth, Redistribution or Recognition? A Politico-Philosophical Exchange (2004).

⁴⁹ A point defended in Daniel Putnam, Equality of Intelligibility, in The Equal Society 91–111 (George Hull, ed. 2015).

⁵⁰ Of course, to fully defend a right to freedom of self-expression—understood as implying at minimum a right not to be subjected to content-based interference with the exercise of one’s personal style—it would be necessary to assess the costs to others of recognizing that right. Doing that task justice would exceed the bounds of this paper. However, two reasons to suspect that such a right could be defended are as follows. The most obvious reason stems from the normative grounds of a content-based limitation on personal style. If as a general matter there is a right not to be coerced just in virtue of the consideration that it would be a bad thing if one’s desire, preference, or identity were more widely adopted, then a fortiori there is a right not to have one’s exercise of personal style coerced for that reason. Second, how one speaks, sounds, moves, and dresses is a paradigmatically self-regarding activity; under that description, one’s behavior has consequences for other people which are almost by definition indirect and intangible. To that extent, it is plausible to think that the costs to others of recognizing a right to freedom of self-expression do not defeat or outweigh the fundamental interests protected by such a right.

⁵¹ See, e.g., T.M. Scanlon, Content Regulation Reconsidered (1990), reprinted in T.M. Scanlon, The Difficulty of Tolerance 151–168, 159 (2003) (“It is common to state the constraints that make up the right of freedom of self-expression in two parts. Freedom of expression requires, first, that expression not be restricted on the basis of its content, and second, that it should not be restricted too much: any regulation should leave ample opportunity for (at least the valued forms of) expression”).

⁵² Although it wasn’t always so; as Carlos Ball describes, early gay rights cases foregrounded First Amendment speech and association claims. Carlos Ball, The First Amendment and LGBT Equality (2017).

⁵³ The contrast between “universalizing” conceptions of sexual minority status (under which same-sex desire in particular is a universal potential in all persons) and “minoritizing” conceptions of sexual minority status (under which same-sex desire is a property of a discrete, demarcated subset of the population) is explored at length in Eve Sedgwick, Epistemology of the Closet (1990).

⁵⁴ Kenji Yoshino, Covering: The Hidden Assault on Our Civil Liberties (2006).

⁵⁵ For example, consider Rogers v. American Airlines, Inc., 527 F. Supp. 229 (S.D.N.Y. 1981), in which the court rejected a race discrimination challenge brought to an employer grooming policy which proscribed braided hairstyles including cornrows. Whatever its legal status in American law, this grooming policy is plausibly seen as a prime example of a content-based limitation on the exercise of personal style. It denies a social good (employment) to persons on the basis of their exercise of presentational style. Moreover, on the assumption that Rogers’ racial ancestry was already evident to her employer, it is plausible to interpret the employer’s action as motivated at least in part by a substantive objection to certain conative states embodied in Rogers’ choice of hairstyle: such as identification with, pride in, or affinity for her African-American heritage.

⁵⁶ See, e.g., Elizabeth Anderson, What is the Point of Equality? 109(2) Ethics 287–337 (1999); Carina Fourie, Fabien Schuppert, & Ivo Wallimann-Helmer (eds.), Social Equality: On What it Means to be Equals (2014); Kasper Lippert-Rasmussen, Relational Egalitarianism: Living as Equals (2018).

⁵⁷ See, e.g., Leslie Green, Two Worries About Respect for Persons, 120 Ethics: 212–231 (2010).