Five Modern Notions in Search of an Author: The Ideology of the Intimate Society in Constitutional Speech Law

Abstract

In this article, drawing heavily on the work of sociologist Richard Sennett, the author argues that the Court’s jurisprudence lends credence to, and exacerbates, five damaging “common sense” notions about American public social life: that public space and time are naked or empty, and can be imagined as no more than transportation tunnels or even the binoculars of a voyeur, as illustrated by the public forum doctrine; that massed acts of public communication, or “speech crowds” are dangerous and must be controlled by force, as the public forum and “clear and present danger” doctrines suggest; that “shadow” space for deviant speech has no place in public life, as obscenity doctrine comes close to claiming; that public figures are acceptably viewed as icons of a “cult of personality,” as the “public figure” jurisprudence in libel law suggests; and that public speech is often simply a form of narcissism, as harassment speech law can potentially imply. The author asks how the Court’s opinions can speak in a way that underscores that public space is valuable for public interaction among strangers, and that speech is a critical part of creating a public community rather than just a tool of individual self-fulfillment in the future.

Keywords: Media, communications, technology, speech, technology, Denver v. FCC, Shea v. Reno