A REAR-VIEW MIRROR LOOK AT THE FIRST AMENDMENT

We return to McLuhan, and to his metaphor describing how most people approach the present or future by looking into the "rear­view mirror"' ¹⁰² of the past. The "rear­view mirror"' perspective is commonplace in the law, particularly in first­amendment jurisprudence. Media­law scholars attempt to transpose the eighteenth­century ideal of freedom of speech and press ¹⁰³ on our modern world as if no changes have taken place. First­amendment doctrine assumes that governmental censorship still poses a greater and more real threat to our self­governing ideal than self­gratification; it assumes that the law that constitutes our system of free expression, although forged in a revolutionary era, still has meaning even though the evils against which that law was directed no longer prevail. A first­amendment doctrine based on such assumptions fails to address the vulnerability of free expression in the modern, commercial context of trivialized speech. ¹⁰⁴

Clearly, the potential for Orwellian governmental censorship can never be dismissed. ¹⁰⁵ Practically speaking, however, that potential is far less threatening than it has been in the past. This is not, of course, to deny the obvious: on a variety of fronts, first­amendment freedom­of­ expression issues continue to surface in cases ranging from flag burning ¹⁰⁶ to cable station access. But, comparatively, the Orwellian evil is not likely to pose a clear and present danger to traditional first­amendment values: in China ¹⁰⁷ and elsewhere, the censorial hand of the oppressor mutes the dissenter who in this nation is increasingly silenced by an oblivious commercial and entertainment culture.

Must we­­and can we­­redefine the evil and the enemy of free speech in an effort to reconcile old­world Orwellian principles with new­world Huxleyan predicaments? In pursuing such an inquiry, an unfortunate and almost inevitable tendency surfaces toward ideological labeling. Much of this constitutional discourse is novel and perplexing, and the reader may be tempted to affix labels to our arguments and to make hasty conclusions. We urge the reader to avoid labels and to suspend judgment for several reasons. First, ideological labeling is likely to be misleading. The attempt to combat the evils of the Huxleyan nightmare may be stamped as a "conservative"' agenda to salvage an elitist ideal in an otherwise egalitarian society. Yet certainly, "the stupefying effects of consumer capitalism and its mass media"' ¹⁰⁸ cannot be a thing of joy to either the reformist or radical. Alternatively, the effort to transform the law to license affirmative government involvement in the system of free expression may be branded as "progressive"' or "socialist"' or, in any case, as antithetical to the tenets of American free enterprise. But no conservative of integrity and public conscience can extol a culture that condones self­induced pleasure at the expense of thoughtful self­governance. The ideological labeling of these arguments serves only to confuse their substance. Second, hasty verdicts about the validity of such arguments may prevent the reader from inquiring past the labels to determine whether, indeed, the Huxleyan dangers are a threat to serious discourse. Finally, the reader who reaches rashly for ideological categories may well be surprised with what follows in this Article and in our future essays.