Vol. 16 No. 9 (September, 2006) pp.739-745

 

REDISCOVERING A LOST FREEDOM: THE FIRST AMENDMENT RIGHT TO CENSOR UNWANTED SPEECH, by Patrick M. Garry. New Brunswick, NJ: Transaction Publishers, 2006. 175pp. Cloth $29.95. ISBN: 0-7658-0322-4.

 

Reviewed by Roger A. Shiner, Department of Philosophy, University of British Columbia Okanagan. E-mail: rshiner [at] exchange.ubc.ca.

 

Professor Patrick Garry is madder than the proverbial wet hen. His book, REDISCOVERING A LOST FREEDOM, abounds in epithets like “vile,” “disgusting,” “filthy,” and the like. The targets of his distress are the entertainment media, who relentlessly douse us all in an irresistible flood of “raw violence and gratuitous sex” (p.5), and the courts, who with equal relentlessness strike down in the name of protecting a free market in speech all efforts by well-meaning citizens and governments to do anything about the problem. The book is not a very good book. It occupies an uneasy middle ground between pamphlet and treatise, with more rhetoric and less argument than one would expect of the latter. It originated in a number of journal articles, and has not matured much beyond its origin. There are many repetitions of idea and argument; “media” is indifferently a singular and a plural noun; there are three different versions in the book of the proposed legal substance of Garry’s “right of censorship” (pp.59, 65, 98). Stronger editing would have helped a great deal. However, 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.

 

The book does not develop its argument in a logical, linear fashion: rather, Garry approaches his proposals from a number of different directions in turn. I will therefore supply my own reconstruction of the argument. Garry’s thought seems to be this. There are all kinds of damaging stuff being broadcast right now: media entertainment is filled with raw violence and gratuitous sex. It is damaging because it negatively impacts individual autonomy and flourishing: it cramps self-realizing choices. No one should be forced to view/listen to this stuff, but you cannot get away from it: it is everywhere. Especially – it is impossible to protect children from it, and it is especially damaging to them to view/hear it. Ideally, the individual would be able to exercise a free choice whether to consume this material without affecting the free speech rights of speakers/broadcasters/publishers. But practically, the technology does not exist to allow individuals a free choice to view/hear or not view/hear even in the privacy of their own homes. The problem therefore will have to be solved by government regulation “upstream” near the source (the broadcasters/publishers), not “downstream” in the hands of the end-listener/viewer. Such an attempt at regulation will prima facie run afoul of freedom of speech principles that privilege the speaker/broadcaster/publisher over the listener/viewer. We therefore need some device/some argument/some value/some [*740] principle that is as powerful as, if not more powerful than, a speaker’s right of free speech in order to overcome these speaker-centred principles/values. That device is a constitutional “right to censor,” or a “right of control,” on the part of the listener/viewer. If such a right existed, it would outweigh a speaker/broadcaster/publisher right of free speech, and government regulation of broadcast or published content could be constitutionally legitimate. And in fact such a right does exist: it is an implication of freedom of speech/expression construed as freedom of communication. We just need to re-orient our constitutional thinking to reinstate the right, to “rediscover” the “lost freedom” of the book’s title. However, not just any form of speech would have exposure to such a right of control. Only “lower value” speech, such as pornography, raw violence, gratuitous sex and the like, would have exposure. In particular, political speech would not be exposed to a right of censorship. Garry adopts the Meiklejohnian view that the essence of the First Amendment is the protection of political speech: only it deserves the strong protection courts currently afford to other forms of speech as well in furtherance of the so-called “market model” of freedom of speech.

 

Garry’s opposition to the “market model” for freedom of speech is to be welcomed. As Frederick Schauer has rightly emphasized for almost thirty years (Schauer 1979, 1982), “speech” in the phrase “freedom of speech” is a technical term, the parameters of whose meaning are given by a prior theory of what values such freedom serves to promote. Given those values, it then becomes an open question, not an axiomatic assumption, whether a “free market” in speech best promotes those values. One cannot, although some appear to want to try to, begin with the assumption of a free market in speech and declare whatever state of society results as the best society. As a parent with elementary-school-age children, I share Garry’s concern about the sheer quantity of random violence on children’s television and in video games. (It hardly seems fair, however, to speak as a Canadian, to lay all the blame at the feet of the media, when the National Rifle Association is among the most powerful lobby groups in Washington and the U.S. Constitution contains the Second Amendment.) So I support Garry for raising these issues. On the other hand, from a technical point of view, I am unimpressed by Garry’s actual theory. Here are some substantial concerns.

 

1) The book oscillates between two really quite different views of the purpose of the proposed private right of censorship and the harm at which it is directed. At times (and in two of the three formulations of the legal substance of the right) Garry speaks as though the goal is to give parents, educators and other interested citizens an effective tool in protecting their children from “media entertainment that is filled with raw violence and gratuitous sex,” on the ground that exposure to such material is damaging to children’s own personal development. At other times (and in one of the three formulations), Garry urges the much broader thesis that such dire media entertainment is psychologically and emotionally damaging to anyone [*741] exposed to it, even adults. Likewise, the effect of the right is at times said to be to strengthen parents’ ability to choose what television or movies or video games their children watch/play, and at times it is said to be to strengthen the ability of the individual generally to choose whether to watch “adult” entertainment. These are not interchangeable theses. Familiarly, paternalistic justifications might exist in the one case that would not in the other. The book does not address this ambiguity at all. Moreover, in its firm assumption that sexual content and violent content cannot but obstruct personal growth, and so self-realization is best achieved apart from them, the book is deeply conservative. We grow, according to Garry, by conserving and walling in the values we have and not by exposing them to challenge.

 

2) Garry is of course not the first person to suggest that “freedom of speech” is best theorized as “freedom of communication.” The idea seems to follow from Jürgen Habermas’ theory of communicative action (Habermas 1984; Solum 1989). Freedom of communication, though, is typically appealed to in order to justify considerable government regulation of broadcasting and other media. See, for instance, Richard Moon’s discussion of freedom of expression in Canada (Moon 2000). Moon is quite clear that, if freedom of expression is theorized as freedom of communication, the implications for the media industry are significant, and even economically redistributive. Garry is careful to seek to avoid this. He denies that the proposed private right to censor is a positive liberty or an entitlement: it is, he says, a negative liberty. “It would operate solely as a constitutional defence of government regulations seeking to facilitate such a right” (p.65).

 

This is confused. A negative liberty is a “freedom not,” or a “freedom from”: but what is the “not” or the “from” here? It is a freedom not to have no choice about viewing or listening to raw violence and gratuitous sex. It is a freedom from the grip of the entertainment industry on our personal lives and the lives of our children. Then, though, the freedom is a freedom “to not . . . not”, and two negatives make a positive. Garry’s desired freedom is a “freedom to” after all, a freedom to choose. For good liberal-democratic reasons, Garry wants his “right to censor” not to be a right of the government to regulate in what it sees as our best interest. The right is supposed simply to create a space in which we make our own choices about what to view/listen to. That is why Garry tries to position the right as a negative liberty. But the fact is that that space is to be created by government regulation. The right of censorship is a right to have the regulation that creates the space. It is a positive liberty after all.

 

3) As part of his attempt to subsume his proposal under freedom of speech theory, Garry often speaks of it as a listeners’ right. He thinks in fact, with some justification, that current First Amendment jurisprudence in the U.S. overvalues speakers’ rights and undervalues listeners’ rights. The argument seems to be: If freedom of speech is freedom of communication, then there have to be listeners’ rights as [*742] well as speakers’ rights, since communication involves both a speaker and a listener. The right of censorship is a listener right. Therefore it is a free speech right.

 

That is, though, a confused argument. A listener may indeed have a right not to be forced to listen to or view things that they do not want to listen to or view. But such a right is not necessarily a speech right at all. I have argued at length elsewhere (Shiner 2003, Chapter 10) that the idea of a listener free speech right in itself is hard to isolate except in certain narrow, mostly political, contexts. What courts and commentators refer to as “listeners’ rights” are almost always transferred speakers’ rights, or rights of privacy. Rights of privacy are not the same as free speech rights: their justification is different. Rights of privacy conflict with speakers’ free speech rights all the time – telemarketing, door-to-door selling and canvassing, sound trucks, e-mail spam, . . .; the list goes on. Courts navigate these conflicts by balancing the two rights against each other as best they can.

 

Intuitively, the proposed right of censorship would seem to be a form of right of privacy, not a free speech right. It should be, for example, a private choice whether to allow one’s children to watch violent cartoons on TV. The entertainment industry, allegedly, takes that choice away by broadcasting nothing but violent cartoons. It is one’s privacy that seems to be invaded, then, not one’s right of free speech. Garry ignores the whole issue. He calls the proposed right of censorship a privacy right and a free speech right indifferently. Thereby, he is able to divert the plausibility of a strong right of privacy against speakers’ free speech rights to serve the ends of a supposed listener free speech right, but that is fundamentally just an equivocation.

 

Garry’s fear, I think, is that a right of privacy is not going to be weighty enough in the balance against speakers’ free speech rights. He is spooked by the famous “trash can” argument. In response to government attempts to ban the delivery of advertising material, the U.S. Supreme Court argued that “the ‘short, though regular, journey from mail box to trash can . . . is an acceptable burden, at least so far as the Constitution is concerned’” (Bolger at 72, quoting Lamont at 883). The limit of the privacy right, on this view, is the choice whether to put the leaflet in the trash can or read it. Given that the problem with “media entertainment that is filled with raw violence and gratuitous sex” is in Garry’s view that you cannot stop it coming into the house, there is no functional analogue to the journey to the trashcan. The child is already exposed before the adult catches on and turns the TV off, or unplugs the Internet connection. It should be noted that the Court itself has already backed off from the Bolger position in the case of lawyer solicitation. The Court upheld a Florida ban on lawyer direct-mail solicitation. The Court reasoned that the “short, though regular, journey from mail box to trash can argument would be an inadequate response in situations where the mere receiving and opening of the mail would be enough to cause the harm the state had an interest in preventing” (FLORIDA BAR, at 2379). This case [*743] would provide strong support for Garry’s view, but it seems surprisingly to have escaped his metal detector.

 

Technology, Garry says, is no substitute for constitutional rights and doctrines (p.64). His point, in itself a valid one, is that currently 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. But it does not follow that there is anything wrong with conceptualising the resulting right to censor as a privacy right rather than a free speech right. The weakness of the “downstream” technology is what drives the argument for “upstream” regulation, not the fact that communication requires a listener. If foolproof technology were available, preventing a child’s access to undesirable material would be like not answering the doorbell, or not opening the mail solicitation, as opposed to being like a journey to the trashcan.

 

4) 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. So how is all this going to be operationalized? “A better system would be to give private third parties the ability to provide ratings that could in turn be accessible to media users. These outside ratings, done by groups known and trusted by individuals, would inspire a greater confidence and reliance than is accorded the present ratings system” (p.101). A religious parent would look for ratings provided by a known religious group, and so forth. This is an example of an “upstream” piece of regulation that constitutionally would rest on a private right of censorship and that would outweigh in the constitutional balance a broadcaster’s right to be free of such regulation. Labelling schemes are standardly acknowledged not to be in conflict with speakers’ rights.

 

All right – but this is in the context of making it mandatory for the broadcaster to provide these ratings ahead of the choice whether to watch a TV program, for example, so the choice is meaningfully autonomous. I cannot see how this practically would work. There are hundreds of interest groups out there, representing hundreds of different interests potentially with a stake in knowing what is being broadcast when. How will a broadcaster make ALL of these available? If it is left to the political process to select, say, five of these rating systems only to be mandatory, the problem of being deluged with material one deems undesirable will simply reappear. If it is left to the government to select the five, the problem of government paternalism will simply reappear. The thought is [*744] appropriate – don’t force people to watch things; provide them with reliable information so that they can make their own decisions. But without attention to the real-life difficulties in making such a proposal work, the proposal is pointless. The book contains no such attention.

 

There are good things in this book. There is, for example, an excellent discussion on pp. 56-59 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 straw-like composition, there is much to be learnt from attempting such a broad viewpoint.

 

Given the unfashionableness both in the ivory tower and on the bench of the position Garry adopts, one is tempted to defend the shortcomings of the argument by saying that the book presents pioneering work — except that the book isn’t exactly pioneering. Freedom of speech as freedom of communication has been defended before, and even embraced decades ago by the FCC in the much-maligned Fairness Doctrine. The possible superiority of privacy rights to free speech rights is not a new issue either. The new element in Garry’s approach is the seemingly paradoxical idea of a “right of censorship”. However, one looking for a sophisticated defence of this idea will learn more from the weaknesses of Garry’s book than from its strengths.

 

REFERENCES:

Habermas, Jürgen. 1984. THE THEORY OF COMMUNICATIVE ACTION. (Translated by Thomas McCarthy). Boston: Beacon Press.

 

Moon, Richard. 2000. THE CONSTITUTIONAL PROTECTION OF FREEDOM OF EXPRESSION. Toronto: University of Toronto Press.

 

Schauer, Frederick F. 1979. “Speech and ‘Speech’ - Obscenity and ‘Obscenity’: An Exercise in the Interpretation of Constitutional Language.” 67 GEORGETOWN LAW JOURNAL 899–933.

 

Schauer, Frederick. 1982. FREE SPEECH: A PHILOSOPHICAL ENQUIRY. Cambridge: Cambridge University Press.

 

Shiner, Roger A. 2003. FREEDOM OF COMMERCIAL EXPRESSION. Oxford: Oxford University Press.

 

Solum, Lawrence B. 1989. “Freedom of Communicative Action: A Theory of the First Amendment Freedom of Speech.” 83 NORTHWESTERN UNIVERSITY LAW REVIEW 54–135. [*745]

 

 

CASE REFERENCES:

BOLGER v YOUNGS DRUG PRODUCTS CORP., 463 US 60 (1983).

 

FLORIDA BAR v WENT FOR IT, INC, 115 SCt 2371 (1995).

 

LAMONT v COMMISSIONER FOR MOTOR VEHICLES, 269 F Supp 880 (SDNY) at 883, summarily affirmed 386 F 2d 449 (1967) (USCA 2nd Cir), certiorari denied 391 US 915 (1968).

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© Copyright 2006 by the author, Roger A. Shiner.