ARMCHAIR PSYCHOLOGY & FIRST AMENDMENT IDEOLOGY

Why do Smolla, Kozinski, Banner, and others before them ⁸⁵ -­ all good­ natured and knowledgeable thinkers -- portray us to be something other than what we say we are? What drives them to brand us (expressly or implicitly) as enemies of First Amendment freedoms? More generally, is there a pathology in much contemporary scholarship on the First Amendment?

In the liberal community and the legal academy, few things are more sacrosanct than the First Amendment. On this point, Frederick Schauer, a noted free speech scholar, hammers away: "[A] broadly protective understanding of the First Amendment is taken as an orthodoxy­or ideology ... ­in a large number of academic and professional environments ...." ⁸⁶ In other words, "there seems to be, within these domains, little free thought about free thought, little free inquiry about free inquiry, and little free speech about free speech." ⁸⁷ Thus, where the First Amendment is the measure, more is always better.

Against this backdrop, it is not surprising that any far­reaching and probing analysis of free speech jurisprudence will trigger hypersensitive reactions. This is especially true with unorthodox inquiries that play different ideological stances against each other. After all, who knows where the pursuits of such "crazy people" will lead? Consistent with this, what our critics gather to be a less than edifying account of the commercial speech culture is likely to be a source of anxiety. From our account they presumably surmise a hostile First Amendment posture and consequently fear that we will pull the First Amendment away from the enterprise of commercial speech. No amount of Valium ⁸⁸ or Xanax ⁸⁹ can cure this anxiety. Yet, if truth be known, our design is to push the First Amendment closer to the commercial­ speech culture, albeit at the risk of disowning old theory that cannot be easily, if at all, reconciled with praxis.

For our critics and their like, the First Amendment must remain a totem not associated with any taboo. But it is hard to retain that mindset when core free speech concepts such as rational decisionmaking and self­realization are held up to the realities of our modern mass advertising culture. For that reason alone, Justice Harry Blackmun ⁹⁰ and others may feel some compunction to perpetuate an ignoble lie, namely, that this culture and these concepts can co­exist free of cognitive dissonance. Or they may prefer to be silent, cherishing commercial speech in a way not dependent on any noble values. But they cannot bring themselves to profess a glaring point: If commercial speech is to be protected for what it is, basically it must be valued as speech in the service of selling.

Just how long can contemporary First Amendment discourse repress this point? What is the future of an illusion that yesterday's marketplace of ideas and today's marketing of items can be valued for the same reason? If the ardent defenders of commercial speech could only bring themselves to confront these questions, then the arduous process of a much­needed therapy could begin. We wish them well.