Managed Speech

The Roberts Court's First Amendment

Gregory P. Magarian

Comprehensively explores and critiques how the current U.S. Supreme Court, under the leadership of Chief Justice John Roberts, has reshaped First Amendment law
Examines every decision about expressive freedom the Supreme Court handed down between Chief Justice Roberts' ascent in September 2005 and Justice Scalia's death in February 2016
Explores many of the key recurring debates in First Amendment law
Provides much needed attention on the special problems of the government preserve cases and the high stakes of the electoral process cases

Managed Speech

The Roberts Court's First Amendment

Gregory P. Magarian

Description

Our constitutional freedom to speak out against government and corporate power is always fragile, but today it faces unprecedented hazards. In Managed Speech: The Roberts Courts First Amendment, leading First Amendment scholar, Gregory Magarian, explores and critiques how the present U.S. Supreme Court, led by Chief Justice John Roberts, has reshaped and degraded the law of expressive freedom.

This timely book shows how the Roberts Court's free speech decisions embody a version of expressive freedom that Professor Magarian calls "managed speech". Managed speech empowers stable, responsible institutions, both government and private, to manage public discussion; disfavors First Amendment claims from social and political outsiders; and, above all, promotes social and political stability. Professor Magarian examines all of the more than forty free speech decisions the Supreme Court handed down between Chief Justice Roberts' ascent in 2005 and Justice Antonin Scalia's death in 2016. Those decisions, taken together, aggressively advance stability at a steep cost to robust public debate.

Professor Magarian proposes a theoretical alternative to managed speech, one that would aim to increase the range of ideas and voices in public discussion: "dynamic diversity." A First Amendment doctrine based on dynamic diversity would prioritize political dissent and the rights of journalists, allow for reasonable regulations of money in politics, and work to broaden opportunities for speakers to be heard. This book offers a fresh, critical perspective on the crucial question of what the First Amendment should mean and do.

Managed Speech

The Roberts Court's First Amendment

Gregory P. Magarian

Acknowledgments
Introduction
PART I: PRIVATE SPEECH
Chapter One
The Marrow of Tradition: Categorical Exclusions from First Amendment Protection
Chapter Two
Fair and Balanced: Regulations of Political Dissent and Commercial Profit
PART II: SPEECH IN GOVERNMENT PRESERVES
Chapter Three
My House, My Rules: Strengthening Government Managers' Control Over Institutional Speech
Chapter Four
Speakers, Cornered: Weakening the Public Forum
Chapter Five
There's Always a Catch: Speech-Restrictive Conditions on Government Funding
PART III: SPEECH IN THE ELECTORAL PROCESS
Chapter Six
Of Parties and Petitions: Regulations of Election Procedures
Chapter Seven
Letting Money into Elections: Citizens United and McCutcheon
Chapter Eight
Keeping Money Out of Elections: Government Leveling and Labor Speech
Chapter Nine
Managed Speech and Beyond: Confronting the Roberts Court's First Amendment
APPENDIX:
ROBERTS COURT FREE SPEECH DECISIONS AND HOLDINGS
Index

Managed Speech

The Roberts Court's First Amendment

Gregory P. Magarian

Author Information

Gregory P. Magarian, Professor of Law, Washington University Law School, St. Louis

Gregory P. Magarian is Professor of Law at Washington University in St. Louis. He teaches and writes about U.S. constitutional law, with a focus on the First Amendment freedom of expression. His work also explores law and religion, gun regulation, and the law of politics. He has published widely in leading law journals, and he has taught and lectured around the world. Professor Magarian received his B.A. summa cum laude from Yale and his J.D. magna cum laude, as well as a master's degree in public policy, from the University of Michigan. He served as a judicial clerk, first for Judge Louis Oberdorfer of the U.S. District Court for the District of Columbia, then for Justice John Paul Stevens of the U.S. Supreme Court. He practiced law at Jenner and Block in Washington, D.C. and taught at Villanova University before joining the Washington University faculty in 2008. He lives in St. Louis with his wife and daughter.

Managed Speech

The Roberts Court's First Amendment

Gregory P. Magarian

Reviews and Awards

"Gregory Magarian accomplishes a rare feat by providing a valuable new framework and vocabulary for understanding the Supreme Court's recent First Amendment decisions. This volume offers a heartening glimpse of a future where speech protections embrace a diversity of voices and foster the dynamic change that is the lifeblood of a healthy, modern democracy. Powerful and deftly argued, Managed Speech is both a commentary on the current political moment and a roadmap for reinvigorating the First Amendment." - Lee C. Bollinger, President and Seth Low Professor of the University, Columbia University

"Professor Magarian provides a terrific discussion of the freedom of speech decisions of the first decade of the John Roberts Court. This beautifully written, nuanced book shows how the Court in recent years has expanded some protections for expression, but restricted others. Professor Magarian uses his discussion of these cases to advance a new theory of freedom of speech - dynamic diversity - which could provide for more robust protection of speech in the years ahead. The book manages to be thorough and descriptive while also being wonderfully critical and prescriptive." - Erwin Chemerinsky, Dean, Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

"In this powerful book, Gregory Magarian explores and critiques a central element of the Roberts Court's constitutional jurisprudence: its frequent and significant engagement with the First Amendment. Contrasting the Roberts Courts 'managed speech' approach with a compelling alternative he calls 'dynamic diversity', Magarian simultaneously explains and unsettles contemporary free speech doctrine. Managed Speech should be a standard reference for anyone seeking to understand or evaluate the modern First Amendment." - Joseph Blocher, Professor of Law, Duke Law School

"Managed Speech is a creative, original, and incisive exploration of how the Roberts Court has navigated the complex landscape of modern free speech law, comparing and contrasting rulings in such arenas as various and different as private speech, government funded speech, and speech in government preserves." - Rodney A. Smolla, Dean & Professor of Law, Delaware Law School, Widener University

Managed Speech

The Roberts Court's First Amendment

Gregory P. Magarian

From Our Blog

Free speech and political stagflation

First Amendment Law is distorting public debate. We need the Supreme Court to do better. Public political debate in the United States seems to have run off the rails. The gulf between Republicans and Democrats in political opinions, views of the other party, and even factual beliefs keeps growing. Big money dominates the electoral process. Journalists and political dissenters face relentless hostility.

Posted on September 26, 2017

Read the blog post