Cory Andrews (Washington Legal Foundation) has posted The Freedom to Receive: An Originalist Case for the Listener’s First Amendment on SSRN. Here is the abstract:
In March 1768, the Boston town meeting voted its thanks to John Dickinson for having “awakened” and “instructed” America — verbs that locate the value of expression in the minds that received it. Two centuries later, when the Supreme Court first struck down an Act of Congress under the Speech and Press Clauses, it did so on behalf of a reader; yet Justice Brennan’s concurrence in Lamont v. Postmaster General offered the right to receive almost apologetically, as an unenumerated inference “necessary to make the express guarantees fully meaningful.” This Article contends the apology was unnecessary and the inference too modest. Applying the Supreme Court’s demanding historical test for constitutional rights — text, founding-era understanding, and a regular course of practice, the method of Heller, Bruen, and Trump v. Slaughter — it makes the originalist case that the freedom of speech and of the press, as understood in 1791, protected a single transaction from origin to terminus, and that the listener’s side was not derived from the speaker’s but stood with it from the start. The evidence runs from the era’s dictionaries and the First Amendment’s own structure, through the founding generation’s reception culture and the constitutional settlement of 1836 — when the Senate refused reader-side censorship even in states-rights dress — to an eighty-year doctrinal line without a square repudiation. The Article confronts the strongest counterevidence directly: the Sedition Act, at the height of the founding era’s fury, wrote no offense a reader could commit. What the Court did in 1965 was not an invention. It was a recovery — and as First Amendment doctrine enters an era of historical audit, the right to receive is among the few modern rights that can meet the Court’s test on its own terms.
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