Rediscovering a Lost Freedom: The First Amendment Right to Censor Unwanted Speech

by Patrick Garry

Overview

Since ratification of the First Amendment in the late eighteenth century, there has been a sea change in American life. When the amendment was ratified, individuals were almost completely free of unwanted speech; but today they are besieged by it. Indeed, the First Amendment has, for all practical purposes, been commandeered by the media to justify intrusions of offensive speech into private life.

In its application, the First Amendment has become one-sided. Even though America is virtually drowning in speech, the First Amendment only applies to the speaker's delivery of speech. Left out of consideration is the one participant in the communications process who is the most vulnerable and least protected—the helpless recipient of offensive speech. In Rediscovering a Lost Freedom, Patrick Garry addresses what he sees as the most pressing speech problem of the twenty-first century: an often irresponsible media using the First Amendment as a shield behind which to hide its socially corrosive speech. To Garry, the First Amendment should protect the communicative process as a whole. And for this process to be free and open, listeners should have as much right to be free from unwanted speech as speakers do of not being thrown in jail for uttering unpopular ideas.

Rediscovering a Lost Freedom seeks to modernize the First Amendment. With other constitutional rights, changed circumstances have prompted changes in the law. Restrictions on political advertising seek to combat the perceived influences of big money; the Second Amendment right to bear arms, due to the prevalence of violence in America, has been curtailed; and the Equal Protection clause has been altered to permit affirmative action programs aimed at certain racial and ethnic groups. But when it comes to the flood of violent and vulgar media speech, there has been no change in First Amendment doctrines. This work proposes a government-facilitated private right to censor. Rediscovering a Lost Freedom will be of interest to students of American law, history, and the U.S. Constitution.

Product Details

ISBN-13:	9781412808606
Publisher:	Transaction Publishers
Publication date:	02/15/2009
Edition description:	New Edition
Pages:	176
Product dimensions:	5.90(w) x 8.90(h) x 0.30(d)

About the Author

Patrick M. Garry is a professor at the University of South Dakota Law School. He is a contributor to the Oxford Companion to the U.S. Supreme Court, and his previous books include Scrambling for Protection: The New Media and the First Amendment and A Nation of Adversaries: How the Litigation Explosion is Reshaping America.

Table of Contents

Acknowledgments, Introduction, 1 The Outdated Arguments Used to Defend Modern Media Speech, 2 The First Amendment Right of Control, 3 The Constitutional Parameters of a Private Right to Censor, 4 Judicial Support for a Private Right to Censor, 5 Implementing a Private Right to Censor, 6 Political Speech and the First Amendment, 7 Defining Speech in an Entertainment Age: The Video Game Example, Conclusion: The First Amendment in a Media-Saturated Society, Index

Editorial Reviews

"Rediscovering a Lost Freedom is a timely and important book that forces us to look at the issue of free speech in a new—or at least 'rediscovered'—way. The mantra that 'more speech is always good' has lost currency in light of certain world events. Those who value speech have to confront the realities of this day and age of satellite transmissions and the global Internet. Garry provides a model designed to protect the important contributions that flow from free speech while recognizing the dangers it poses and the threats it faces around the globe. Not everyone will like the solutions that he sets forward, but the arguments are serious and the stakes are high. This is a book well worth reading." — Ronald J. Rychlak, MDLA Professor of Law and Associate Dean for Academic Affairs, University of Mississippi School of Law "The freedom of speech has become a shield for intrusive and commercialized nihilism. Professor Garry's balanced yet provocative analysis shows how that happened and offers a remedy that deserves serious national attention." — Charles E. Rice, professor emeritus of law, University of Notre Dame "Patrick Garry's book is a unique blend of seemingly disparate elements: It contains both an impassioned denunciation of the garbage we are inundated with by the public media and a thoughtful, detailed proposal for changes in our first-amendment jurisprudence that would allow us to protect ourselves and our families from this unwanted deluge. Garry's book deserves a wide audience." — Patrick Kelley, Professor of Law at Southern Illinois University, School of Law "Rediscovering a Lost Freedom is important, intriguing, and thoroughly documented. It presents compelling arguments in support of a much-needed shift in First Amendment thinking. The book provides a common-sense blueprint for constructive constitutional change, change that Professor Garry backs up with solid research and legal analysis. This is a truly remarkable achievement, and I anticipate that the book will have a significant impact.—Richard Wilkins, Brigham Young University School of Law "This is an intelligent and timely case for our right to censor unwanted speech that forces itself on us so often today. It is gratifying to read Professor Garry's critique of the outdated arguments used to defend intrusive pornography and violence." — Paul C. Vitz, professor of psychology, emeritus, New York University and senior scholar, Institute for the Psychological Sciences "Rediscovering a Lost Freedom makes an original and exciting contribution to scholarly and public debate over the First Amendment.

— David M. Wagner, associate professor, Regent University School of Law "Rediscovering a Lost Freedom is a provocative challenge to the reigning orthodoxy of free expression. In our cultural exaltation of individual expression, Garry argues that we have lost sight of the historical and theoretical concerns that actuated the free speech guarantee. Building on concepts of low value speech he proposes that courts defer to legislative judgments protective of a listeners right to censor unwanted speech, so long as that speech is not political speech, the core concern of the First Amendment. This is a book that should be read by anyone concerned with the future of free expression in a media-saturated culture." — Calvin Massey, Professor of Law, University of California, Hastings

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