The Paratroopers' Paradox

In attempting to answer this question, we confront a paradox: by saving itself, the first amendment destroys itself. On the one hand, to preserve its anticensorial ideals, the first amendment must protect both the old and new media cultures. Accordingly, it must constrain most governmental controls over expression, including those over the commercial use of electronic media. On the other hand, if the first amendment's protections do not differentiate between the old and new media cultures, the modern obsession with self­amusement will trivialize public discourse and undermine the traditional aim of the first amendment. Differentiation requires government ''abridgment"' of expression, particularly in the case of commercial television. In the case of government abridgment, first­amendment protection collapses into first­ amendment tyranny; in the case of anticensorial ideals, first­amendment liberty collapses into first­amendment triviality.

Throughout this Article, our analysis of contemporary public discourse focuses mainly on the ecology of commercial television. We chose this focus because television enjoys a dominant and almost unchallenged status in our society. In assessing the function of first­amendment jurisprudence, we simply cannot ignore that Americans own some 150 million televisions, ⁴ that sixty­five percent of American households are equipped with VCRs, ⁵ that our people are tuned into a television set on the average of forty­seven hours weekly, ⁶ that our young consume one hundred commercials daily, ⁷ that advertisers spend nearly twenty­three billion dollars annually on television commercials, ⁸ and that the television culture is first and foremost one of amusement.

Part I of this Article examines what we consider to be the "new pleasure principle"' and its relationship to the first amendment. We explain this relationship with reference to the cautionary tales of George Orwell and Aldous Huxley. Part II reflects on the attributes and commercial use of television as they relate to the Huxleyan pleasure principle. Part III describes three prototypical responses to the first­amendment dilemmas posed in Part I. Each of these responses attempts to preserve some realm of vital sociopolitical discourse, which either may be segregated from entertainment media or reconciled with them. Finally, Part IV demonstrates how each of these responses fails to appreciate the paradox of the first amendment in an age of paratroopers.

To avoid false expectations and to further the worthy mission of first­ amendment debate in this area, ⁹ we close this Article on something of an unresolved note. Having revealed the paradoxical nature of our contemporary first­amendment situation, and having identified and criticized the major responses to that predicament, we leave to others (would­be paratroopers) and to a future essay ¹⁰ any further struggle with the paradox.