Rediscovering a Lost Freedom

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

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.

Reviews of Rediscovering a Lost Freedom

“Rediscovering a Lost Freedom: The First Amendment Right to Censor Unwanted Speech, is a provocative challenge to the reigning orthodoxy of free expression. Professor Garry squarely confronts the flood of media smut that permeates our culture and proposes that we focus at least as much on the rights of listeners to avoid such speech as we presently do on the rights of speakers to utter violent and sexually explicit speech. 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 listener’s right to censor unwanted speech, so long as that speech is not political speech, a core concern of the First Amendment. Professor Garry’s criticism of the “speaker-centric” approach to free speech offers to balance our one-sided individualism by reminding us of the individual interest in avoiding low value offensive speech. At the same time, his approach is grounded in concerns about how speech constructs us individually and as a society. 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

“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

“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

“Patrick Garry’s book is important, intriguing, and thoroughly documented. It presents compelling arguments in support of a much needed shift in First Amendment thinking. This is a truly remarkable achievement, and I anticipate that the book will have a significant impact.”
-Richard G. Wilkins, professor of law, J. Reuben Clark Law School, Brigham Young University

“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, 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.”
-Professor David M. Wagner,  Regent University School of Law

“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 J. Kelley, professor of law, Southern Illinois University School of Law

“In this provocative book Patrick Garry, a law professor at the University of South Dakota School of Law, proposes a different understanding of the free speech protections. In a series of incisive chapters, Garry rejects most of the standard defenses of a limitless First Amendment liberty for non-political speech, and argues that the standard liberal defense of offensive speech simply is inapplicable to today’s media-saturated environment. Garry develops a sophisticated analysis that courts could use when deciding whether a listener’s rights to not be exposed to certain types of offensive speech trumps the speaker’s right to broadcast offensive messages.”
-The University Bookman

Rediscovering a Lost Freedom details how Americans at the dawn of the twenty-first century are consistently exposed to expressions they find distasteful and often disgusting . . . Rediscovering correctly notes that “averting one’s eyes is completely disconnected from the realities of the modern media world.” “Offensive speech,” Americans have learned to their sorrow, “can appear anywhere and at any time, with little advance warning.

“Much of this speech seems far removed from the original purposes of the First Amendment. Garry observes that “the vast majority of contemporary media speech is mere entertainment, which is essentially a mass-produced commodity, no different from a set of golf clubs or a new CD player.” Worse, the volume may be harmful. “By flooding individuals with inane, ugly, and indecent speech,” Rediscovering complains, the media has “dulled their senses and diminished their ability to discern quality, much less truth.” At the very least, these observations suggest, citizens should have a right to avoid speech when the only countervailing interest is the interest of a media corporation in increasing the bottom line. The best sections in Rediscovering make sensible suggestions that would enable Americans to regain a degree of control over their speech environment without sacrificing any first amendment rights.
-The Review of Politics

Even if its answers do not get us very far, the book asks some important questions that too few writings about freedom of speech are willing to ask…Technology, Garry says, is no substitute for constitutional rights and doctrines.  His point, in itself a valid one, is that current technologies such as the V-chip and Video On Demand are too fallible to leave it completely to the listener/viewer to control whether a particular program or web page is viewed or listened to, if the listener/viewer is to exercise choice meaningfully…Even foolproof technology would not help in the absence of reliable prior indications as to the nature of the material being broadcast or published.  Garry therefore rightly spends some time on the matter of reliable ratings attached to material offered for viewing or listening.  He also rightly sees that an official government rating scheme, for instance, would take us back to the bad old days of movie Boards of Censors and the like.  He wants the individual to be able to carry out his or her own censoring.  He also rightly sees that different kinds of people are going to develop different kinds of rating schemes to serve different kinds of interests…Garry also includes an excellent discussion of the merits of “opt in” approaches to speech regulation as opposed to “opt out” approaches, and of the arbitrariness of the reasons courts have typically given for regarding the First Amendment as excluding the former and mandating the latter in order to respect speakers’ rights.  Moreover, at a time when scholars tend to be not merely freedom of speech experts but specifically religious speech experts, or commercial speech experts, or broadcasting experts, Garry makes a commendable attempt to build a wide-angled argument drawing together cases from a variety of speech contexts.  Even if, as I believe, some of the resulting bricks have a staw-like composition, there is much to be learnt from attempting such a broad viewpoint.
-The Law and Politics Book Review

Cited in Ronald Rotunda, Treatise on Constitutional Law

“Rediscovering a Lost Freedom provides “an interesting example involving viewers’ freedoms when it comes to television and choosing what information they would like to receive.”
–New Media Research Studio

“Enhancing media consumers’ freedom of choice is an important, unjustly neglected topic. For an informative and thought-provoking discussion of it, buy Rediscovering a Lost Freedom.”
–Journalism and Mass Communications Quarterly (2008)

“This is a valuable book with many creative insights on the First Amendment speech clause. I found it most interesting and informative.”
-Gary Allison, Professor and Vice Dean, University of Tulsa College of Law

“I think this is a genuinely important book – it is a very interesting book… I really appreciate Professor Garry’s attempt to tidy up what is a disastrous mess in the First Amendment doctrine.”
-Professor Tucker Culbertson, Syracuse University College of Law