‘Managed Speech’

Prof. Magarian Publishes New Book on The Roberts Court and The First Amendment

“If a democracy doesn’t make noise, it dies,” Professor Greg Magarian observes. And yet the decisions during the tenure of Supreme Court Justice John G. Roberts, Jr. have turned down the volume on free speech to worrisome levels, he contends.

In his new book, Managed Speech: The Roberts Court’s First Amendment (Oxford University Press, 2017), Professor Greg Magarian examines what First Amendment rights have become versus what they could be.

He theorizes that since Chief Justice John G. Roberts, Jr. was appointed to his role in 2005, the Supreme Court has narrowed the First Amendment through a policy Magarian calls “managed speech” – namely empowering stable, responsible institutions to exercise managerial control. As a result, public discussion has been pushed “away from destabilizing, noisy margins and toward a stable, settled center,” Magarian writes.

This, in turn, has led to a narrowing of free speech. “By placing a high premium on social and political stability, managed speech encourages a public discussion where a limited number of speakers exchange a limited range of ideas,” he observes.

Magarian’s theory grew from examining each of the 40-plus free speech decisions the U.S. Supreme Court handed down between 2005 and the death of Associate Justice Antonin Scalia in 2016. He places emphasis on recurring debates in First Amendment law and pays special attention to cases focused on the electoral process and speech regulations in settings that government controls.

Magarian also proposes an alternative to managed speech that he has coined “dynamic diversity.” This new view would have the distinct advantages of prioritizing political dissent and the rights of journalists, allowing for reasonable regulations of money in politics, and broadening opportunities for speakers to be heard.

“Public discussion is the primary medium for challenging stable institutions and testing new ideas, the space where dynamism finds the oxygen to challenge stability,” Magarian writes. “First Amendment law, on the dynamic diversity model, should help to provide that oxygen.”

Early reviews of his book have been enthusiastic. “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,” wrote Lee C. Bollinger, president and Seth Low Professor at Columbia University.

Magarian teaches and writes about U.S. Constitutional law, with a focus on the First Amendment freedom of expression. He has written on a variety of topics in constitutional law, including free speech theory and doctrine, media regulation, regulation of political parties, the relationship between church and state, and substantive due process.