San Diego Law Review

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This Article addresses the First Amendment status of the one participant in the communications process who is the most vulnerable and least protected in today's media-saturated world - the unwilling recipient of offensive media entertainment speech. The Article argues that for the communicative process to be truly free and open, listeners should have as much right to be free from unwanted non-political speech as speakers do of not being thrown in jail for uttering unpopular ideas. The Article examines a side of communicative freedom (e.g., the right of listeners to reject) that for centuries was taken for granted and that in recent decades has been greatly eroded. Current First Amendment jurisprudence assumes that people can simply avert their eyes whenever confronted with violent or pornographic speech. But in reality, given the pervasiveness of the media, the ability to avoid repulsive or offensive speech has been greatly diminished. Despite the abundance of harmful media speech, the courts have placed all burden of avoiding it on the listener and the viewer, yet without providing any effective tools for doing so. Thus, an individual's right to reject unwanted non-political speech may need a boost if it is to be anything more than a convenient fiction. This Article articulates a new model of the Free Speech Clause that takes into account the realities of the media-saturated society that America has become. This model, while giving explicit recognition to the high status of political speech, places non-political media entertainment on a lower constitutional level. The model also addresses what has become a major shortcoming of the current marketplace theory of the First Amendment - the almost complete disregard of the rights and freedoms of besieged listeners and viewers in a culture of pervasive media.

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