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Too Much Free Speech?

Too Much Free Speech?

Randall P. Bezanson
Copyright Date: 2012
Pages: 304
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  • Book Info
    Too Much Free Speech?
    Book Description:

    In Too Much Free Speech?, Randall P. Bezanson takes up an essential and timely inquiry into the Constitutional limits of the Supreme Court's power to create, interpret, and enforce one of the essential rights of American citizens. Analyzing contemporary Supreme Court decisions from the past fifteen years, Bezanson argues that judicial interpretations have fundamentally and drastically expanded the meaning and understanding of "speech." _x000B__x000B_Bezanson focuses on judgments such as the much-discussed Citizens United case, which granted the full measure of constitutional protection to speech by corporations, and the Doe vs. Reed case in Washington state, which recognized the signing of petitions and voting in elections as acts of free speech. In each case study, he questions whether the meaning of speech has been expanded too far and critically assesses the Supreme Court's methodology in reaching and explaining its expansive conclusions. _x000B__x000B_Bezanson's measured approach and deep insights reveal the complexities of speech in the realms of human behavior and constitutional law. His wide-ranging analysis of relevant Supreme Court cases arms readers with the facts and perspectives necessary to reach independent conclusions about whether the Court's conduct befitted the independent judicial branch and to understand the consequences of its decisions for a representative democracy.

    eISBN: 978-0-252-09422-4
    Subjects: Language & Literature, Law, Political Science

Table of Contents

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  1. Front Matter
    (pp. [i]-[iv])
  2. Table of Contents
    (pp. [v]-[viii])
  3. I Introduction
    (pp. 1-4)

    In 1994 Stanley Fish, a peripatetic and controversial scholar at Duke, published a book titled There’s No Such Thing as Free Speech, and It’s a Good Thing, Too. It was the free part of free speech that he challenged. His claim was that, unbeknownst to defenders of speech freedom, speech occupies and is bounded by a realm of values and politics in which the speakable and unspeakable are defined and beyond which speech is unspeakable—and usually illegal. As speakers we are trapped by our politics and predispositions; what we say inside the safe realm cannot be called free. Speech...

  4. II. New Speakers

    • [II Introduction]
      (pp. 5-6)

      The First Amendment coverage question involves a number of linked questions: Who is a speaker, if there need be one? What counts as “speech”? What acts, including group relationships with others, are also swept into “speech”? What constitutional purposes must qualifying free speech serve? And there are others. In the pages that follow we will separate these pieces out in order to isolate specific definitions and issues, though we will always see the shadows of the other dimensions of free speech and we will regularly stitch the relevant pieces back together as we assess the Court’s work.

      We start with...

    • CHAPTER ONE Corporations as Speakers: Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010)
      (pp. 7-64)

      The Supreme Court’s Citizens United decision was announced on January 21, 2010. Just weeks later it moved President Barack Obama in his State of the Union Address to make a special point of criticizing the Court, which had declared the prohibition on corporate and union electioneering within thirty days of a federal election unconstitutional, and in the process conferred broad First Amendment rights on corporate and union political speech. The decision, he said, “is nothing less than a vote to allow corporate and special interest takeovers of our elections. It is damaging to our democracy. It is precisely what led...

    • CHAPTER TWO Government and Its Speech Forum: Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009)
      (pp. 65-110)

      A forty-five minute drive south from Salt Lake City is the city of Pleasant Grove, Utah, and within the city sits Pioneer Park—the site of a local controversy that launched a landmark expansion of the doctrine known as “government speech.” A passerby would not necessarily guess at such significance. The park is somewhat hidden, and its expanse is limited, taking up only part of a small city block and totaling only a couple square acres. Its attractions are a hodgepodge of monuments and historical markers, including an old granary, a wishing well, and a privately donated Ten Commandments msonument....

  5. III. Forms of Speech

    • [III Introduction]
      (pp. 111-112)

      What, exactly, is this thing we call speech? Is it expression with a cognitive meaning or message, say an argument or analysis or fact? Or is it also a metaphor of meaning, sensual, aesthetic, constructed by an audience; or a social practice or ritual; or a bird’s song or wind whispering through the pines?

      In the two cases we will discuss below, the Supreme Court wrestled with these very questions. The first is the Hurley case, which involves the annual St. Patrick’s Day Parade in Boston. Is a parade “speech” under the First Amendment, and if so, what is the...

    • CHAPTER THREE Expressive Conduct Unleashed: Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995)
      (pp. 113-153)

      With the Hurley case we pursue the questions of speech and its source, nature, and meaning under the First Amendment. What if speech might exist even in the absence of a creator and an expressive object? Can constitutionally recognized speech emerge “out of thin air?” Indeed, with aesthetic expression, might not much expression emerge from thin air?

      An example may help. Dada is a form of art that consists of the ridiculous, the purposefully incomprehensible, and the totally deconstructed. An early Dada stage performance involved “skits enacted by (African) masked figures dressed in colorful costumes” who accompanied themselves with drums,...

    • CHAPTER FOUR Speech out of Thin Air: Boy Scouts of America v. Dale, 530 U.S. 640 (2000)
      (pp. 154-180)

      Since age eight, James Dale had been a Scout in his home town of Monmouth, New Jersey. He began scouting as a Cub Scout, then advanced to Boy Scouts. By 1988, when he finished as a youth Scout on his eighteenth birthday, he had earned twenty-five merit badges and had become an Eagle Scout, one of the highest honors in Scouting. The next year he applied for and was accepted as an assistant scoutmaster of Troop 73 in Monmouth. About six months later he left for college at Rutgers University in New Jersey; he also remained an assistant scoutmaster for...

  6. IV. Voting as Speaking, Expressive Association, and Privacy

    • CHAPTER FIVE The Secret Ballot: VOTING AS SPEECH: Doe v. Reed, 130 S. Ct. 2811 (2010)
      (pp. 183-236)

      On January 28, 2009, Senator Ed Murray led a group of Washington State senators in introducing Senate Bill 5688, a piece of legislation that would come to be known as the “Everything but Marriage Bill.” The bill’s statement of purpose declared: “It is the intent of the legislature that for all purposes under state law, state registered domestic partners shall be treated the same as married spouses. . . . The provisions of this act shall be liberally construed to achieve equal treatment, to the extent not in conflict with federal law, of state registered domestic partners and married spouses.”...

  7. V Is There Such a Thing as Too Much Free Speech?
    (pp. 237-258)

    The question we have been examining in this book is limited but fundamental: how should the Supreme Court’s recent definitional expansions of the meaning and scope of “speech” protected by the First Amendment be judged? In the cases we have reviewed, the constitutional term “speech” has been expanded to include speech by corporations, speech by government, voting and petitioning, and speech “out of thin air.” These decisions are not just extensions of the freedom enjoyed by speech. They are extensions—indeed very substantial ones—of the definitional range of the free speech guarantee itself.

    Over the long history of the...

  8. Notes
    (pp. 259-264)
  9. Index
    (pp. 265-266)
  10. Back Matter
    (pp. 267-273)