The Reformist's First Amendment in Bold Relief

Our second objection to Tushnet's thesis is its romanticism. ³² Inviting popular resistance to commercial manipulation, Tushnet imagines a fight that is simply not fightable. As we have explained, the struggle against Huxleyan tyranny can be neither waged nor won on a syndicalist­versus­state­type battlefield. Mollie Steimer, Jacob Abrams, Hyman Lachowsky, and Samuel Lipman ³³ had nothing to resist in the Huxleyan state. Theirs was an Orwellian dissent, one out of character in the pleasure regime.

Here, once more, is the modern first amendment in bold relief. The free­ speech principle is more rhetorical than real. With no iron­fist Orwellian danger, people no longer need James Madison's guarantee. Conversely, the 1791 constitutional defense mechanism cannot guard against the despotism of pleasure.

Perhaps we read too much into Tushnet's response and he does not place full stock in the resistance thesis. If so, he may end up trading romanticism for powerlessness. As Tushnet posits, if "political discourse has degenerated to the point at which citizens cannot understand the basic issues of contemporary politics, and if one of those issues is precisely the degeneration of political discourse, people will not want to adopt [regulatory reforms]."' ³⁴ In sharp contrast to his reformist resistance stance, this position suggests an acceptance of the Huxleyan dilemma.

While Tushnet is ambiguous about the first amendment and the Huxleyan threat to it, Professor David O'Brien is eminently clear. "The motto for the 'new cultural environment,'" O'Brien asserts, "would appear to be: It is better to feel than to think."' ³⁵ Accordingly, he concedes that the "'commercialization of our political culture and discourse­­the displacement of the marketplace of ideas by the marketplace of images­­is indeed a cause for concern."' ³⁶ Recognizing the paratroopers' paradox, O'Brien raises with us the central questions that flow from it: what can be done and who, if anyone, can do it? Although O'Brien does not answer these questions, he at least implies one possible response. If the paradox paralyzes, then we as a society are powerless in the face of it.