Over the past two decades, corporations and other commercial entities have used strategic litigation to win more expansive First Amendment protections for commercial speech—from the regulation of advertising to the role corporate interests play in the political process, most recently debated in the Supreme Court case of Citizens United v. Federal Election Commission. Tamara R. Piety, a nationally known critic of commercial and corporate speech, argues that such an expansion of First Amendment speech rights imperils public health, safety, and welfare; the reliability of commercial and consumer information; the stability of financial markets; and the global environment.
Beginning with an evaluation of commonly evoked philosophical justifications for freedom of expression, Piety determines that, while these are appropriate for the protection of an individual’s rights, they should not be applied too literally to commercial expression because the corporate person is not the moral equivalent of the human person. She then gathers evidence from public relations and marketing, behavioral economics, psychology, and cognitive studies to show how overly permissive extensions of First Amendment protections to commercial expression limit governmental power to address some of the major social, economic, and environmental challenges of our time.
“The timeliness of the topic and the provision of original positions are sure to make the book a valuable contribution that should draw much attention.”
—Kevin W. Saunders, Michigan State University
From the earliest days of cinema, scandalous films such as The Kiss (1896) attracted audiences eager to see provocative images on screen. With controversial content, motion pictures challenged social norms and prevailing laws at the intersection of art and entertainment. Today, the First Amendment protects a wide range of free speech, but this wasn’t always the case. For the first fifty years, movies could be censored and banned by city and state officials charged with protecting the moral fabric of their communities. Once film was embraced under the First Amendment by the Supreme Court’s Miracle decision in 1952, new problems pushed notions of acceptable content even further.
Dirty Words & Filthy Pictures explores movies that changed the law and resulted in greater creative freedom for all. Relying on primary sources that include court decisions, contemporary periodicals, state censorship ordinances, and studio production codes, Jeremy Geltzer offers a comprehensive and fascinating history of cinema and free speech, from the earliest films of Thomas Edison to the impact of pornography and the Internet. With incisive case studies of risqué pictures, subversive foreign films, and banned B-movies, he reveals how the legal battles over film content changed long-held interpretations of the Constitution, expanded personal freedoms, and opened a new era of free speech. An important contribution to film studies and media law, Geltzer’s work presents the history of film and the First Amendment with an unprecedented level of detail.
Conservative opponents of LGBT equality in the United States often couch their opposition in claims of free speech, free association, and religious liberty. It is no surprise, then, that many LGBT supporters equate First Amendment arguments with resistance to their cause. The First Amendment and LGBT Equality tells another story, about the First Amendment’s crucial yet largely forgotten role in the first few decades of the gay rights movement.
Between the 1950s and 1980s, when many courts were still openly hostile to sexual minorities, they nonetheless recognized the freedom of gay and lesbian people to express themselves and associate with one another. Successful First Amendment cases protected LGBT publications and organizations, protests and parades, and individuals’ right to come out. The amendment was wielded by the other side only after it had laid the groundwork for major LGBT equality victories.
Carlos A. Ball illuminates the full trajectory of this legal and cultural history. He argues that, in accommodating those who dissent from LGBT equality on grounds of conscience, it is neither necessary nor appropriate to depart from the established ways in which American antidiscrimination law has, for decades, accommodated equality dissenters. But he also argues that as progressives fight the First Amendment claims of religious conservatives and other LGBT opponents today, they should take care not to erode the very safeguards of liberty that allowed LGBT rights to exist in the first place.
Ralph Waldo Emerson celebrated the individualism, rebelliousness, anti-authoritarianism, and the spirit of nonconformity within all of us. In The First Amendment, Democracy, and Romance, Steven Shiffrin argues that romantics like Emerson have more to teach us about freedom of speech and democracy than does Justice Oliver Wendell Holmes: if the first amendment is to have a single organizing symbol, let it be the image of the dissenter. A major purpose of the first amendment, says Shiffrin, is to protect those who would break out of orthodox forms.
Although the Emersonian ideal of freedom of speech has deep roots in the nation's culture, it has been subtly denigrated in recent first-amendment theory and seriously abused in practice. Yet Shiffrin believes that the first amendment can provide a sensible accommodation among a host of conflicting values in a changing world, and can also stand as a national symbol—in short, it can allow for both social construction and romance.
Blending insights from literature, philosophy, political science, history, rhetoric, and law, Shiffrin maintains that the romantic tradition sheds light not only on a range of free-speech issues, such as libel, flag burning, and the commercialization of the mass media, but also on subjects of broader theoretical controversy, including liberalism, pragmatism, and the republican revival. In addition to its original approach to the law, this book brings new observations and fresh insights to its discussions of the role of the first amendment in American culture. It will interest a general audience as well as lawyers, journalists, and scholars in a variety of academic fields.
What can a democratic society reasonably do about the perplexing problems of racial intolerance, sexual harassment, incitements to violence, and invasions of privacy? Is it possible to preserve the constitutional ideal of free expression while protecting the community from those who would trample on the rights of others?
Franklyn S. Haiman critically examines the reasoning behind recent efforts to prohibit certain forms of speech and explores the possible consequences to democracy of such moves.
Speech act theory, well known to scholars of rhetoric, communication, and language, underlies this emerging trend in judicial and legislative thinking. The idea that "words are deeds," first articulated in language philosophy by Wittgenstein and elaborated by J. L. Austin and John Searle, is being invoked by some members of the legal community to target objectionable speech. For example, speech codes on some college campuses prohibit racist, sexist, and homophobic expression, and attempts have been made through local laws to classify pornography as a form of sex discrimination. By defining certain kinds of arguably immoral symbolic behavior such as hate speech, obscenity, or portrayals of violence as acts rather than as pure speech, speech act advocates make it easier to argue that such conduct should be subject to social control through the law.
Unlike totalitarian or theocratic societies that see no difference between their concept of morality and the law, however, a democracy must make a distinction between what it regards as immoral and what it makes illegal. Haiman maintains that in the realm of symbolic behavior the line between them should be drawn as closely as possible to expression that results in the most serious, direct, immediate, and physical harm to others. Thus, he joins with former Supreme Court Justice Louis Brandeis in concluding that, absent an emergency, more speech, not enforced silence, should be the aim of a free society.
The First Amendment is the principle guarantor of speech rights in the United States. But the Supreme Court's interpretations of it often privilege the interests of media owners over those of the broader citizenry.
Laura Stein argues that such rulings alienate citizens from their rights, corrupt the essential workings of democracy, and prevent the First Amendment from performing its critical role as a protector of free speech. Drawing on the best of the liberal democratic tradition, Stein demonstrates that there is a significant gap between First Amendment law and the speech rights necessary to democratic communication, and proposes an alternative set of principles to guide future judicial, legislative, and cultural policy on old and new media.
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