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This Article addresses the vexing problem of an overabundance of indecent and violent programming in today's media-saturated world. In articulating a constitutional model that can address this problem, the Article adopts a free speech theory that takes into account the realities of the modern media world and the power of the individual to control his/her exposure to that world. It aims to broaden the scope of the First Amendment beyond just a focus on increasing the volume of every kind of speech in the media marketplace, recognizing that for the vast majority of people the only real act of public expression or input into the public communications process is one of personal censure of unwanted media messages. Current First Amendment jurisprudence assumes that people can simply 'avert their eyes' whenever confronted with violent or pornographic speech. But to ask a besieged and virtually captive media audience to simply 'avert their eyes' is like telling people complaining of pollution that they should not breathe the air. This Article proposes a new First Amendment theory that recognizes the flood of harmful and offensive entertainment programming, as well as the individual's diminished power to avoid that flood. In doing so, the theory elevates the rights of listeners and viewers to a more balanced position with respect to speakers, and with respect to non-political media entertainment.

The First Amendment in a Time of Media Proliferation: Does Freedom of Speech Entail a Private Right to Censor?