SOME DARING DECLARATIONS 20
Reader beware! We are not entirely what some of our colleagues portray us to be in their responses. Before turning to those portrayals, we think it prudent to sketch our own portrait in bolder strokes. Without the benefit of the elaboration contained in Commerce & Communication and our related works, we dare to declare the following:
The obvious import of our entire scholarly enterprise is more descriptive than normative. Thus understood, our work is more concerned with depicting certain forms of discourse in contemporary America than it is with promoting any particular theory of First Amendment jurisprudence.
Although our analysis often focuses on the values of the traditional First Amendment, our enterprise does not depend on espousing or denying these values.
To the degree that we dwell on the values of the traditional First Amendment, we do so in order to examine the apparent dissonance between theory and praxis. Simply stated, can the high values of free expression be squared with the operation of commercial speech as it exists in the modern mass advertising culture?
To say that traditional free speech values cannot be squared in the above manner is not to say that commercial speech automatically should be denied First Amendment protection. It is only to say that the reason(s) for protecting commercial communication must be other than the espoused traditional norms.
We ask, and we invite our readers to ask: What conception of the First Amendment would be most compatible with commercial discourse as we have come to know it? What candid and honest view of the First Amendment might countenance a generous measure of protection for commercial speech?
Having asked the above question, we suggest one possible answer: Constitutional protection of speech in the service of selling is entirely consistent with the values of a highly capitalistic and consumerist culture. Here again, our endeavor does not depend on approving or disapproving this answer.
This answer raises yet another question: What would be the social and legal consequences of signing on to such a view of the First Amendment?
In our other writings, we pose still more questions and tender still more answers. Whether the topic is commercial discourse in a consumerist culture, 21 political discourse in a television culture, 22 or pornographic discourse in an entertainment culture, 23 our methodology remains largely the same.
