Acting on the Paradox

Facing the paradox without resolving it, we offer the following (non­ exhaustive) possibilities for future analysis:

1. Investigate the viability of either fortifying rationality, civic participation, and meaningful dissent rationales for the first amendment, or substituting some form of a self­gratification rationale, or attempting to draw lines between these two rationales.

2. Investigate the viability of a first­amendment doctrine that distinguishes protections on a combination of factors: the form of communication (oral, print, electronic); ¹⁵⁹ the extent of commercial influence; the "mass"' character of the expression (speaker­audience ratio); and the existence of alternative traditional, noncommercial forms of expression (remember: The "new pleasure principle"' suffuses the American culture generally, and is only most blatantly manifest in commercial television).

3. Investigate the viability of empowering and requiring national and state governments to take affirmative steps to protect traditional forms of noncommercial expression: government­sponsored television; government­ sponsored public fora for face­to­face debates, lectures, readings, recitals, and art exhibitions; government­sponsored media education programs.

4. Investigate how other countries, particularly socialist nations without a "first amendment,"' confront the Huxleyan dilemmas.

Should we choose to act on our knowledge of the paradox, and should we attempt to recast the first amendment to grapple with the paradox, there undoubtedly will be something lost and something gained. Whether the something lost or the something gained will render us better­off or worse­off cannot be resolved at this point. This uncertainty results in part because the Huxleyan factor has not yet become a variable in the constitutional calculus of the first amendment, and the full ramifications of grappling with the paradox remain wholly speculative. ¹⁶⁰

For now, our paratroopers are assailed by a cloud of paradoxical bullets as they cross the Rubicon and prepare to leap into the new first­amendment terrain. And this all points to the Death of Discourse. But that, of course, is another battle, another call for hope, and another article.