Our colleague, Professor Max Lerner, is troubled by what he sees as "'dilemma thinking"' in our article. Lerner, Some Reflections on The First Amendment in an Age of Paratroopers, 68 TEXAS L. REV. 1127, 1129 (1990). On this occasion, we offer two responses. First, whatever its merits, "dilemma thinking"' is necessary at this stage in firstamendment discourse. Emphasizing a dichotomy between the Huxleyan and Orwellian evils goads legal thinkers to consider what is always ignored, namely, the Huxleyan dimension. "Dilemma thinking,"' in our opinion, is the precondition to Lerner's desired "spectrum of choices,"' assuming there is one. Id. at 1130. Second, we are unclear as to the real differences between Lerner's "polarities"' thinking and our "dilemma thinking."' Id. at 1129.
See Collins & Skover, The First Amendment in an Age of Paratroopers, 68 TEXAS L. REV. 1087, 1112 n.117, 112021 (1990).
Redish, Killing the First Amendment with Kindness: A Troubled Reaction to Collins and Skover, 68 TEXAS L. REV. 1147, 1151 (1990).
In a related context, Professor Pierre Schlag brilliantly describes this type of normative move as "disciplinary solipsism"': "If you never allow 'the other' . . . the possibility of changing your consciousness, your thought patterns, your cognitive of affective disposition, your text, etc., then you will always already be able to defeat 'the other.' " Schlag, The Great Contributions of Normative Legal Thought to . . . Uh . . . Normative Legal Thought, 43 STAN. L. REV. (forthcoming 1990). See generally Schlag, Missing Pieces: A Cognitive Approach to Law, 67 TEXAS L. REV. 1195, 121013 (1989) (describing the tendency of rationalist thinkers to assume incorrectly the universal adequacy of their own world views).
Redish, supra note 3 (quoting M. REDISH, FREEDOM OF EXPRESSION: A CRITICAL ANALYSIS 11 (1984)).
In our article, we raised similar questions, which Professor Redish left unanswered. See Collins & Skover, supra note 2, at 1091 n.19.
Rubin, Television and the Experience of Citizenship, 68 TEXAS L. REV. 1155, 1157 (1990).
To be fair, we interpret Professor Rubin's engaging response as more postmodern than modern, as we use the latter term. His thoughtful response is postmodern in the sense that it overhauls the modernist's liberty model in light of contemporary realities.
Schiller, Television Is a SocialNot a Biological or Technological Problem, 68 TEXAS L. REV. 1169, 1171 (1990).
As Professor Lerner poignantly notes: "Unchecked capitalism in the marketplace of ideas has to be checked as much as anything else."' Lerner, supra note 1, at 1131. At this juncture, Lerner may be trading his "classicist"' badge for a "reformist"' one. See supra note 8 and accompanying text. In this regard, those who read our article as essentially a tract on television misread us.
One might argue, consistent with this proposition and yet more sympathetic to Schiller's concerns, that the human drive for selfgratification ought not to be stoked by industry. This argument, unlike Schiller's, pays equal regard to all of the forces in the dynamic between corporation and consumer, while primarily regulating corporate behavior.
Schiller's jurisprudential program would become a more realistic possibility were fundamental shifts in the American political and socioeconomic culture to create an environment conducive to judicial reform of constitutional doctrine governing corporations. See Ackerman, Constitutional Politics/Constitutional Law, 99 YALE L.J. 453, 461 (1989).
Tushnet teases the reader with the prospect of doctrinal reform: "As a matter of ordinary doctrinal analysis, if we discover that existing doctrine, which purports to advance firstamendment values, actually impedes the adoption of laws that really do advance those values, we should be prepared to adjust the doctrines causing the difficulty."' Tushnet, Decoding Television (and Law Reviews), 68 TEXAS L.REV. 1179, 1182 (1990). With all due respect, we read Tushnet's observation as more casual than committed, for the balance of his arguments points to the futility of legal reform without extraordinary resistance to the dominant power structures in the popular culture.
Here, the reformist Tushnet differs markedly from the reformist Schiller.
Tushnet's argument draws upon
Professor John Fiske's understanding of the politics of popular culture. See generally J.
FISKE, READING THE POPULAR 112 (1989) [hereinafter READING THE POPULAR]; J. FISKE,
UNDERSTANDING POPULAR CULTURE 49102 (1989). A helpful sense of Fiske's position can be
gleaned from the following passage:
Theories of ideology or hegemony stress the power of the dominant to construct the
subjectivities of the subordinate and the common sense of society in their own interests.
[The dominants'] power is the power to have their meanings of self and of social relations
accepted or consented to by the people. At the most basic level, evading this power or
inverting it is an act of defiance . . . . The threat to the power of the dominant is
evidenced by their constant attempts to control, delegitimate, and disparage the pleasures
of the people. But despite centuries of legal, moral, and aesthetic repression . . ., the
everyday culture of the people . . . has maintained these evasive, resistant popular
forces without which more active resistances would have no base and no motivation. Evasion
is the foundation of resistance; avoiding capture, either ideological or physical, is the
first duty of the guerilla.
READING THE POPULAR, supra, at 9.
A. HUXLEY, BRAVE NEW WORLD AND BRAVE NEW WORLD REVISITED at xix (1965).
Pittman, We're Talking the Wrong Language to 'TV Babies', N.Y. Times, Jan. 24, 1990, at A15, col. 1.
Hall, Bill Moyers Holds a Mirror Up to America, L.A. Times, Nov. 12, 1989, (Calendar), at 4, col. 1, 84, col. 5 (interview with Bill Moyers).
Curiously, Tushnet maintains that,
"like many commentators uncomfortable with the present state of political discourse,
[Collins and Skover] appear to romanticize the past."' Tushnet, supra note 23, at
1180. In his view, the important political discourse of the past was not likely to be any
more intellectually edifying or socially significant than the product of the contemporary
television culture. As he observes, "the yellow press of the turn of the last century
was surely the equivalent of the sound bite of thirty (or fifteen, or nine) seconds in
today's technologically different society."' Id.
Of course, we generally agree with Tushnet that television did not invent the
superficiality or triviality of America's political or other public discourse, as we
emphasized at several points in our article. See Collins & Skover, supra note 2, at
1097, 110405. But we maintain that the commercial television culture has accentuated and
amplified the superficiality and triviality of public discourse. And, as communications
theorist Professor Todd Gitlin aptly observed, "[T]here is precedent for a shriveled
politics of slogans, deceit, and pageantry. But precedent is nothing to be complacent
about when ignorance is the product."' Gitlin, Blips, Bites and Savvy Talk:
Television's Impact on American Politics, DISSENT, Winter 1990, at 18, 26.
These individuals were the defendants in the celebrated case of Abrams v. United States, which denied a firstamendment challenge to a conspiracy conviction for opposing the "capitalist invasion of Russia"' by the United States. Abrams v. United States, 250 U.S. 616, 619 (1919); see also R. POLENBERG, FIGHTING FAITHS: THE ABRAMS CASE, THE SUPREME COURT, AND FREE SPEECH 1370 (1987) (detailing the history of the Abrams case).
O'Brien, Between the Nightmares of Orwell and Huxley: A Note on the Noble Dream of the First Amendment, 68 TEXAS L.REV. 1137, 1142 (1990).