Forsdale, Marshall McLuhan and the Rules of the Game, in MARSHALL MCLUHAN: THE MAN AND HIS MESSAGE 169, 173 (G. Sanderson & F. MacDonald eds. 1989) (quoting M. McLuhan, Educational Effects of the Mass Media of Communication (1955) (seminar paper presented at Teacher's College, Columbia University)). To "cross the Rubicon"' means "to take an irrevocable step."' Historically, the Rubicon was a small river that separated ancient Italy from Cisalpine Gaul (the province allotted to Julius Caesar). When Caesar crossed this stream in 49 B.C., he passed beyond the limits of his province and became an invader in Italy, thus precipitating war with Pompey and the Senate. See BREWER'S DICTIONARY OF PHRASE AND FABLE 973 (1981). In this Article, we appropriate McLuhan's language and apply it in ways that he probably would not endorse. For a justification of such practices, see M. LERNER, IDEAS ARE WEAPONS: THE HISTORY AND USES OF IDEAS 6 (1939) ("For in the history of ideas even their distortions are a part of their meaning­­the unfolding of a line of direction inherent in the ideas themselves."').

T. GITLIN, INSIDE PRIME TIME 335 (1983).

Civic restraint is not, of course, incompatible with radical political expression, which takes politics most seriously in a way that an entertainment culture simply does not. See, e.g., S. SHIFFRIN, THE FIRST AMENDMENT, DEMOCRACY AND ROMANCE (forthcoming 1990) (characterizing the first amendment's "free speech idea"' as "one of our foremost cultural symbols"'). Professor Shiffrin maintains that "as a cultural symbol, the first amendment has enlivened, encouraged, and sponsored the rebellious instincts within us all. It affords a positive boost to the dissenters and the rebels."' Id. Shiffrin contrasts this with the "hedonistic consumer"' television culture. Id.

See Cutler, Meet Jane Doe, AM. DEMOGRAPHICS MAG., June 1989, at 25, 26.

See Stack, New Uses for Video­­It's Everywhere, S.F. Chronicle, June 30, 1989, at E1, col. 5 (describing how ubiquitous video technology is now being used to tape weddings, instruct police officers, and create video magazines, among other things).

See J. MEYROWITZ, NO SENSE OF PLACE: THE IMPACT OF ELECTRONIC MEDIA ON SOCIAL BEHAVIOR 79­80 (1985) (noting past studies revealing that households with incomes under $10,000 watch an average of 47 hours and 3 minutes of television a week; households with incomes over $30,000 watch television 47 hours and 50 minutes a week). According to the Nielson 1988 Report on Television, even the lowest viewing group­­single­person households­­had their sets on 37 1/2 hours a week. See NIELSON MEDIA RESEARCH, 1988 REPORT ON TELEVISION 7 (1988).

See Verhovek, New York Bans Sponsored TV From Its Schools, N.Y. Times, June 17, 1989, at 1, col. 6 (reporting attempt of Whittle Communications to gain access to New York classrooms through sponsored television); Whittle, Commercials, Plus Education, N.Y. Times, Mar. 1, 1989, at A25, col. 1.

See Nader & Riley, Oh, Say Can You See: A Broadcast Network for the Audience, 5 J.L. & POL. 1, 53 n.274 (1988) (noting figures for 1987 advertising); see also Gerard, Advertisers Rush Back to the Networks, N.Y. Times, July 3, 1989, at 29, col. 3 (national ed.) (noting $4 billion annual advertising expenditures for prime­time hours alone).

See Appendix A.

In another essay in progress, The Death of Discourse, we grapple with several of the deeper points latent in this article. Importantly, here we consider the influences of an amusement­oriented media culture on the sociopolitical values of the first amendment, and not on its rationality principle. We realize that a fundamental relationship exists between the political and rationality values. On this occasion, however, we attempt to isolate the entertainment problem from the antirationality problem in order to enhance clarity.

See Rex v. Zenger, 17 St. Trials, 675, 723 (N.Y. Province 1735) (affirming a jury finding that acquitted John Peter Zenger when the jury was to decide only whether the libelous words were printed); L. LEVY, EMERGENCE OF A FREE PRESS 119­43 (1985) (relating the story of John Peter Zenger).

See Abrams v. United States, 250 U.S. 616, 622­24 (1919) (rejecting a first­amendment challenge to a conspiracy conviction for opposing the United States "capitalist invasion of Russia"'); R. POLENBERG, FIGHTING FAITHS 197­ 242 (1987) (analyzing the Supreme Court's rejection of first­amendment challenge to espionage conviction in Abrams).

See Feiner v. New York, 340 U.S. 315, 321­22 (1951) (rejecting a first­amendment challenge to a conviction for incitement of breach of the peace by a street corner protestor).

See Cohen v. California, 403 U.S. 15, 18­19 (1971) (upholding a draft protestor's first­amendment claim).

See, e.g., Greenwalt, Free Speech Justifications, 89 COLUM. L. REV. 119, 130­41 (1989) (analyzing the premises of classical marketplace theory); Ingber, The Marketplace of Ideas: A Legitimizing Myth, 1984 DUKE L.J. 1, 2 nn.1­2 (arguing, through numerous examples, that jurists and scholars often use the marketplace­of­ideas image to legitimize first amendment freedoms).

An excellent attack on the premises underlying the traditional marketplace­of­ideas theory and a reconstruction of the marketplace metaphor in light of "antifoundational"' criticism is provided in Scanlan, Aliens in the Marketplace of Ideas: The Government, the Academy, and the McCarran­Walter Act, 66 TEXAS L. REV. 1481, 1523­30, 1539­44 (1988). See also Post, The Constitutional Concept of Public Discourse: Outrageous Opinion, Democratic Deliberation, and Hustler Magazine v. Falwell, 103 HARV. L. REV. 603, 632­33 (1990) (analyzing the first amendment's commitment to neutrality with respect to the normative values of specific communities­­a "marketplace of community"' rationale, as it were).

See, e.g., Blasi, The Checking Value in First Amendment Theory, 1977 AM. B. FOUND. RES. J. 521, 527­42 (arguing that the power of public opinion exposes and deters abuses of power by public officials).

See, e.g., A. MEIKLEJOHN, POLITICAL FREEDOM: THE CONSTITUTIONAL POWERS OF THE PEOPLE 9­28 (1960) (asserting the hierarchy of first­amendment speech values justifying dual­level protections); Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1, 26 (1971) (arguing that the first amendment protects only "explicitly and predominantly political"' speech).

See, e.g., C. BAKER, HUMAN LIBERTY AND FREEDOM OF SPEECH 47­69 (1989) (advocating the protection of speech not because free speech is an instrumental means to a collective good but because of the normative value of the speech conduct to the individual); T. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 6 (1970) (arguing that free speech promotes the realization of human character and potentialities); M. REDISH, FREEDOM OF EXPRESSION: A CRITICAL ANALYSIS 20­30 (1984) (arguing that free speech enables the formation of life­ affecting decisions); Scanlan, A Theory of Freedom of Expression, 1 PHIL. & PUB. AFF. 204, 213­15 (1972) (defending the principle that certain ills must be accepted in order to maintain freedom of expression).

Our characterization of this rationale assumes that, at an important level, these theorists would distinguish between self­realization and self­ gratification. In other words, the individual who is self­realized is significantly more than a glutton for pleasure and amusement.

See, e.g., S. SHIFFRIN, supra note 3.

See G. ORWELL, 1984 (1949).

A. HUXLEY, BRAVE NEW WORLD (1946).

A. HUXLEY, BRAVE NEW WORLD REVISITED (1958).

See 2 S. BEDFORD, ALDOUS HUXLEY: A BIOGRAPHY 490­91 (1973) (Huxley, in a letter to George Orwell, maintained: "I feel that the nightmare of Nineteen Eighty­Four is destined to modulate into the nightmare of a world having more resemblance to that which I imagined in Brave New World."').

See N. POSTMAN, AMUSING OURSELVES TO DEATH at vii (1985) [hereinafter N. POSTMAN, AMUSING]; N. POSTMAN, CONSCIENTIOUS OBJECTIONS 51, 168, 174 (1988) [hereinafter N. POSTMAN, CONSCIENTIOUS]. Professor Postman's provocative writings on public discourse do not address the first­amendment issues discussed in this article. Moreover, and as we point out later, the substance of Huxley's writings is more relevant to our first­amendment inquiry than Professor Postman has need to draw upon for his particular project. See infra note 94 and accompanying text.

A. HUXLEY, supra note 22, at 63­65, 71­72, 88­89; A. HUXLEY, supra note 23, at 85. In Huxley's works, soma was a mild drug dispensed by the government to sedate and gratify the populace. According to Huxley, "the soma habit was not a private vice; it was a political institution, it was the very essence of the Life, Liberty and Pursuit of Happiness guaranteed by the Bill of Rights."' Id. at 85.

A. HUXLEY, supra note 23, at 45.

A. HUXLEY, supra note 22, at 88, 110.

A. HUXLEY, supra note 23, at 45.

See id. at 5. Huxley perceptively contrasts his world with Orwell's.

[C]ontrol through the punishment of undesirable behavior is less effective, in the long run, than control through the reinforcement of desirable behavior by rewards, and . . . government through terror works on the whole less well than government through the non­violent manipulation of the environment and of the thoughts and feelings of individual men, women and children.

Id.

Id. at 136­37.

Id. at 64.

Id. at 44.

Id. at 145.

N. POSTMAN, AMUSING, supra note 25, at 78.

Id. at 87; accord Hendrix, Is the Sky Really Falling?, L.A. Times, Sept. 25, 1989, § 5, at 1, col. 2 (stating that television "has become the command center of our culture"'); see also I. MITROFF & W. BENNIS, THE UNREALITY INDUSTRY 176­86 (1989) (arguing that entertainment has blurred reality and unreality and has thereby debased public discourse); N. POSTMAN, CONSCIENTIOUS, supra note 25, at 168 (arguing that Americans look to television to define their culture even though television trivializes everything it transmits).

Various communications theorists have investigated the operation and effect of different modes of communication, including the electronic media. Of course, any complete study of the subject would require the presentation and analysis of the views of individuals such as James Carey, Florian Coulmas, Daniel Czitrom, Elizabeth Eisenstein, Jacques Ellul, Franco Ferrarotti, Todd Gitlin, Eric Havelock, Hal Himmelstein, Ivan Illich, Harold Innis, Robert Logan, Jerry Mander, Marshall McLuhan, Joshua Meyrowitz, Mark Miller, Walter Ong, Barry Sanders, Tony Schwartz, and Raymond Williams. Also worthy of consideration is the scholarship of cultural theorists concerned with the social and economic effects of mass technological culture, including among many others the critical works of C. Wright Mills, Lewis Mumford, and Stuart and Elizabeth Ewen. Although our Article relies on certain insights from this rich body of literature, a more extended discussion of the relevance of these works to law is reserved for our forthcoming essay, The Death of Discourse.

Professor Postman explains that "[t]he average length of a shot on network television is only 3.5 seconds, so that the eye never rests, always has something to see."' N. POSTMAN, AMUSING, supra note 25, at 86. Postman also remarks that "[t]he learning modules of the TV curriculum are extremely short and compact­­commercials run anywhere from ten to sixty seconds; what are called 'programs' run from thirty to sixty minutes but are always sequenced in eight­ to ten­minute modules."' N. POSTMAN, TEACHING AS A CONSERVING ACTIVITY 60­61 (1979); see also Goldberg, TV: Up­Links and Hi­Jinks at the Summit, Wall St. J., Dec. 4, 1989, at A12, col. 1 (noting the extravaganza created on Malta by the media covering the summit); Goodman, For TV Networks at Malta, Big Stars, Great Scenery, but "Anchors Adrift,"' N.Y. Times, Dec. 4, 1989, at A9, col. 1 ("Television has taught us that there is a scant relationship between the significance of an event and the power of the picture. . . . [W]hether it is a Presidential election or a superpower summit, the substance is not readily captured by the camera."').

But may we come to know it in the future in new, multidimensional and more pervasive ways­­ways that merge modes of communication and further accentuate their entertainment function. See, e.g., Schlender, Couch Potatoes! Now It's Smart TV, FORTUNE, Nov. 20, 1989, at 111, 111 (explaining "Frox's home entertainment system"' which combines television, VCR, stereo, computer, phone, and fax capacities); Markoff, Personal Computers May Combine Brain with Beauty of TV, N.Y. Times, Sept. 12, 1989, at 1, col. 6 (relating various methods by which television and computers may interact).

For a discussion of the audio influence of television, see R. ALTMAN, Television/Sound, in STUDIES IN ENTERTAINMENT 39, 44­46 (1986); Foltz, Sound Becomes the New Frontier for TV Ads, N.Y. Times, Feb. 5, 1990, at C10, col. 3.

T. PAINE, COMMON SENSE (I. Kramnick ed. 1776).

THE FEDERALIST Nos. 1­84.

In the last three decades, the only "talking heads"' program to achieve a top twenty­five ranking in network television ratings was 60 Minutes. See T. BROOKS & E. MARSH, THE COMPLETE DIRECTORY TO PRIME TIME NETWORK TV SHOWS: 1946­ PRESENT 966­75 (4th ed. 1988). Although one may quibble, it is questionable whether the "action­packed"' 60 Minutes can be characterized as a "talking heads"' program. Bill Moyers' Public Broadcasting Service series, A World of Ideas, is a finer example of "talking heads"' programming, but it is viewed on a much smaller scale. See B. MOYERS, A WORLD OF IDEAS (1989) (edited versions of 41 interviews taken by Moyers of experts in a variety of fields about the ideas shaping our future).

See T. GITLIN, THE WHOLE WORLD IS WATCHING 5­13 (1980) ("What makes the world beyond direct experience look natural is a media frame. . . . Media frames are persistent patterns of cognition, interpretation, and presentation, of selection, emphasis, and exclusion, by which symbol­handlers routinely organize discourse, whether verbal or visual."'). Admittedly, other forms of communication, such as print, "frame"' reality. See, e.g., M. MCLUHAN, THE GUTENBERG GALAXY: THE MAKING OF TYPOGRAPHIC MAN 229­30 (1962) (positing the logic of printing as a centralized and homogenizing force which regulates language, the paint brush of reality); see also Collins, Writing on Writing (forthcoming essay) (copy on file with Texas Law Review) (arguing that any medium is too confining to adequately express the ideas it reflects. Even McLuhan, the critic of "the medium is the message"' concept, was limited to expressing his ideas through the medium of print). But television "frames"' differ in essential ways: they are more imagistically dramatic; they can instantaneously capture more unprocessed information; and they can divorce information from its natural and larger context in a more visually sensational manner.

See Farrell, The Electronic Election: Campaign By Image, Boston Globe, Nov. 13, 1988, § B (Special Report), at 6­7.

Similarly, we are told by one of "The Great Communicator's" top aides that President Ronald Reagan sallied forth to address the important subject of housing construction "wearing a hard hat and standing in front of homes under construction. . . . Naturally, the story played big on the evening news."' Deaver, Sound­Bite Campaigning: TV Made Us Do It, Wash. Post, Oct. 30, 1988, at C7, col. 2.

National Republican Party Chairman and manager of the 1988 Bush presidential campaign, Lee Atwater, sums up the function of the modern political campaign consultant as "'spend[ing] an hour and a half [every morning] figuring out what you're going to do to get on the news that night­­to get in the news hole. What stunt you can pull that will give you 14 seconds of news hole.'" Oreskes, America's Politics Loses Way as Its Vision Changes World, N.Y. Times, March 18, 1990, at A16, col. 4.

See, e.g., J. MEYROWITZ, supra note 6, at 79 ("The logical linking of pieces of information into large, complex, and connected treatises and theories is a feature of writing and print. . . . [Television, by contrast,] favors discrete clumps of information rather than long connected arguments and analyses."' (footnote omitted)).

Of course, the disassociation of ideas is not a property unique to electronic media communication. Something of the same phenomenon surfaces in oral communication. Typographic communication, by contrast, places a premium on the analytically linear. Whatever the degree of disassociation in oral communication, television has institutionalized the phenomenon and made it a significant aspect of mass communication. As we emphasize repeatedly in this text, commercial television does not so much create a mindset hostile to traditional first­amendment values; rather, commercial television greatly compounds the problems associated with the trivialization of discourse. Cf. Gitlin, Blips, Bites & Savvy Talk, DISSENT, Winter 1990, at 18, 25­26.

See N. POSTMAN, supra note 38, at 55­56.

Id. at 58­59.

See N. POSTMAN, CONSCIENTIOUS, supra note 25, at 76­77. Postman notes:

Because time is so precious on television, because the nature of the medium favors dynamic visual images, and because the pressures of a commercial structure require the news to hold its audience above all else, there is rarely any attempt to explain issues in depth or place events in their proper context.

Id.

Yaukey, Newsman Schorr Blasts Politics Warped by TV, Ithaca J., Nov. 15, 1988, at 3A, col. 1 (quoting from a lecture delivered at Cornell University (Nov. 14, 1988)).

N. POSTMAN, CONSCIENTIOUS, supra note 25, at 169. Apparently, the Reagan campaign model has been adopted abroad. See, e.g., Brooke, TV Making Obscure Brazilian the Candidate to Beat at 39, N.Y. Times, July 31, 1989, at A1, col. 5. Speaking of the television appeal of presidential candidate Fernando Collor de Mello, a Brazilian editorial writer observed: "He does not have a program­­ he has an image. He does not have a party­­he has a vehicle for his personality cult. He does not say anything­­only what people imagine that he is saying."' Id. at A6, cols. 2­3. Mr. Collor de Mello's strongest opponent was a popular television talent show host, Silvio Santos, who leapt into the political fray 15 days before the election. See Margolis, TV Host Upstages Brazil's Politicos, Wash. Post, Nov. 4, 1989, at A17, col. 1.

Barber, And Now, Mr. Lincoln, You Have 15 Seconds, N.Y. Times, Oct. 30, 1988, § 7 (Book Review), at 36. For post­Reagan advice to national public leaders on the techniques of "com[ing] across well on television,"' see Marchand, Designing a Video Mask of Many Faces, N.Y. Times, Aug. 13, 1989, at H31, col. 1 (offering media advice to Vice­President Dan Quayle).

A. HUXLEY, supra note 23, at 71.

See, e.g., Goldberg, Did the Medium Become the Message?, Wall St. J., Jan. 2, 1990, at A9, col. 1 (arguing that television's entertainment format is the most significant factor in shaping the American world view).

Television has even changed our perception of pleasure itself, allowing the aestheticized surface­­the abstract image­­to dominate. Television has thus replaced pleasure with the image of pleasure.

See Nader & Riley, supra note 8, at 54.

T. GITLIN, supra note 2, at 328­29.

See, e.g., F. GRAHAM, HAPPY TALK: CONFESSIONS OF A TV NEWSMAN 232 (1990) (noting that the tendency of CBS network news producers was to assume "'that the average television viewer was rather dense and that the way to reach the largest number was to aim low and talk down"').

A. HUXLEY, supra note 23, at 41 (referring to propaganda).

See Boyer, The Shift of Rather, N.Y. Times, Aug. 6, 1988, at 50, col. 6. The story continued:

The move is intended to improve the ratings and, as a result, the advertising revenues for Channel 2 in the highly competitive 7 to 8 P.M. time period, called "prime­time access"' in the television industry because it comes just before prime time, when viewership is high.

Many network­affiliated stations around the country have long since moved their network newscasts into earlier time slots. The aim is twofold: not only can these stations often get higher ratings with a game show than with network news, but they can also, by keeping the entire "access"' hour to themselves, retain all of the revenues earned in that period.

Id.; see also Boyer, When News Must Pay Its Way, Expect Trivia, N.Y. Times, Oct. 2, 1989, at A19, col. 2 (warning that "journalists are becoming entertainers"'). As a former news cameraman has observed: "Why pretend television news is anything but entertainment? . . . Television is money­driven and viewer­numbers critical, and television news is the circus of bread and circuses."' Sturken, Letter to the Editor, N.Y. Times, Nov. 12, 1989, § 4, at 22, col. 3.

Today's commercial television producers and advertisers are the modern­ day equivalent of the ancient sophists who, in Plato's Republic, mastered the art of pleasing the "great strong beast."' PLATO, THE REPUBLIC OF PLATO 172­73 (A. Bloom trans. 1968). This point is entirely in keeping with the Huxleyan message.

For a superb illustration of this point, consider the difficulties encountered by electronic broadcasters in airing programs pertaining to the abortion issue. See, e.g., Gay, 'Roe vs. Wade' Sells Out, but Did the Advertisers Sell Out to Boycott Threat?, Variety, May 17, 1989, at 1, col. 3 (noting a substantial loss of advertising revenue after drastic rate reductions by NBC, even though the program was presented in a balanced and noncontroversial manner); Lipman, Barbara Walters Radio Special on Abortion Shunned by Sponsors, Wall St. J., June 16, 1989, at B1, col. 5 (observing that the network was unable to "sign up a single advertiser"' because of the program's subject). Many of the same problems confront public television. See, e.g., Goodman, Public TV Juggles a Hot Potato, N.Y. Times, Sept. 3, 1989, § 2, at 1, col. 2 ("How can [public television] serve as a forum for all manner of opinions, including those that are bound to irritate many viewers, yet retain its financial support?"). Indeed, corporations and advertisers employ television screening agencies to monitor the content of network shows and to ensure that advertising dollars dictate standards for controversial programming. See Carter, Screeners Help Advertisers Avoid Prime­Time Trouble, N.Y. Times, Jan. 29, 1990, at C1, col. 1.

Ralph Nader and Claire Riley have observed that

[d]emographic appeal is narrowed to exclude the elderly, [very] young, ethnic groups and the underclass, and programs reflect this exclusion. Certain program formats are even diminished or eliminated. There are, for example, no fine arts programs on commercial television. Program­length documentaries have been drastically cut back, replaced by short subject highlights on the national news.

Nader & Riley, supra note 8, at 54 (footnotes omitted). Even documentaries have fallen victim to commercial television's penchant for dramatic mass appeal. See, e.g., O'Connor, Blurring the Line Between Fact and Fiction, N.Y. Times, May 21, 1989, at H27, col. 1 (noting the rise in based­on­fact network movies that tend to use a reality label to perpetuate comfortable myths). For thoughtful discussions of the transformation of the "public"' into a commercial "mass,"' see W. LEISS, S. KLINE & S. JHALLY, SOCIAL COMMUNICATION IN ADVERTISING 307 (1986) ("With media output controlled by the audience logic of advertising, there is no real marketplace for ideas, that is, no public forum where widely different types of social actors can buy and sell information, opinion, and images that express their interests."'); C. MILLS, THE POWER ELITE 298­324 (1956).

See, e.g., I. DE SOLA POOL, TECHNOLOGIES OF FREEDOM 49­52 (1983) (noting that the recent lifting of FCC restrictions on network ownership of cable systems has opened the door for large publishing and broadcasting organizations to further extend their cross­ownership of media concerns); T. GITLIN, supra note 2, at 331­32 (noting that "the networks are diversifying into pay cable and other new technologies so that, like the giant oil companies, they may end up controlling a considerable share of their competition"'); see also Bagdikian, The Lords of the Global Village, THE NATION, June 12, 1989, at 805, 807­10 (describing the "big five"' media corporations that control the world's mass media); Nader & Riley, supra note 8, at 61 (noting that the networks still command a majority share of the viewing audience and that the advent of cable has not decreased the dominance of the networks because local cable systems merely retransmit television broadcasts without altering their form or content).

The Cable Television Advertising Bureau established that advertisers spent $2 billion on commercial cable services in 1989, an increase of 30% over the total spent on cable commercials in 1988. In planning their purchases of commercial time­slots for new television seasons, major advertising agencies now view cable services as they do network television. Reportedly, advertisers "'are finding that in terms of programming cable is more like regular television, and that makes them comfortable. . . . Indeed, advertisers spending on cable [in 1989] mirrored exactly what happened in network television."' Fabrikant, Cable TV Is No Longer a Stepchild, N.Y. Times, Jan. 10, 1990, at D17, col. 1.

See, e.g., T. GITLIN, supra note 2, at 328 (noting that capital demands of the new networks are identical to those of the old networks: maximum achievable market shares).

According to Ralph Nader and Claire Riley: "Although fifty­one percent of cable systems have over thirty channels . . ., the majority of the programming does not differ substantially from what is offered on network television. In fact, cable operators spend most of their programming dollars to acquire movies."' Nader & Riley, supra note 8, at 62 (footnotes omitted). Similarly, Professor Todd Gitlin observes:

[Cable operators] have quickly learned that the surest way to carve out a big national market is to take some existing segment of the network schedule and to stretch it throughout a longer broadcast day. Thus sports, old movies, news, and syndicated series are the staples of the new cable networks and are likely to remain so. What they offer is not so much different as more of the same.

T. GITLIN, supra note 2, at 328. These arguments hold equally true for "direct­ broadcast"' television. For a description of this "direct­to­home satellite TV programming service,"' see Landro, Direct­Broadcast TV May Be Getting off the Ground, Wall St. J., Feb. 21, 1990, at B1, col. 3.

N. POSTMAN, CONSCIENTIOUS, supra note 25, at 113.

The culture of the commercial undergoes a remarkable evolution, as the newly developed "info­mercial"'­­a 30­minute to 3­hour commercial presented as a talk show­­evidences. See Brush, Heeeeere's The Commercial!, Wash. Post, Feb. 11, 1990, at F1, col. 1.

N. POSTMAN, CONSCIENTIOUS, supra note 25, at 113.

See And Now a Word About Our Sponsors, PEOPLE WEEKLY, Summer 1989 Extra, at 120, 120­23 (noting longevity of Timex, Charmin, and Rice Krispies commercials).

See Farrell, supra note 45, at 7.

During the 1988 presidential and congressional campaigns, candidates and their political consultants exploited commercial television's potential for deceptive political campaign practices by giving a new level of visibility to negative advertising. "Attacks ads"' are part of the "unceasing quest for the image, the code word, the value, the picture that moves voters."' See Toner, "'Wars"' Wound Candidates and the Process, N.Y. Times, March 19, 1990, at A1, col. 2, A14, col. 3.

For an original look at the effect of the electronic media culture on poetry, see Barbiero, Poetry in the Age of Hyperinformation, With Reflections on What, 15 CENTRAL PARK 144, 144­50 (1989).

According to Michael Sheehan, advisor to four democratic presidential aspirants in 1988: "[Politicians] must understand that the [television] time frame is scrunched­­[they] need to be able to express a complex idea in about 15 seconds."' The Remaking of the Candidate, CAMPAIGNS & ELECTIONS, May­June 1988, at 27, 28 (interview with Michael Sheehan). Some suggest that the trend in sound­bite discourse evident in the 1988 elections will continue. See, e.g., Perry, White Middle Class May Still Tip Balance in Elections in the '90s: With Attention Spans Briefer than a TV 'Sound Bite' Don't Look for Substance, Wall St. J., May 15, 1989, at A1, col. 1 (predicting that the battle between the Democrats and Republicans for political ascendancy in the immediate future "'will be nasty and negative, waged in the clutter of shorter and shorter 'sound­bites' on more and more TV channels"'); see also Confessions of a Sound Bite, Wash. Post, Oct. 22, 1989, at C5, col. 1 ("As TV news increasingly has no use for information that is not scheduled to fit into a package, it loses interest in anyone who it has determined in advance will not be a sound bite."').

Addato, TV Tidbits Starve Democracy, N.Y. Times, Dec. 10, 1989, at D23, col. 1; see also Buresh, Stop the World! I Want to Think!, L.A. Times, Dec. 30, 1989, at B6, col. 3 ("The tendency in commercial television is to speed up. . . . Television can give us so much, except the time to think."').

Will, The Uselessness of Debates, Wash. Post, Sept. 11, 1988, at C7, cols. 1, 4.

E. DREW, PORTRAIT OF AN ELECTION: THE 1980 PRESIDENTIAL CAMPAIGN 263 (1981).

See Postman & Ashcroft, TV Brings Distortions to Politics, Atlanta Const., Jan. 24, 1988, at C5, col. 1 (noting the appearances of Paul Simon, Jesse Jackson, Bruce Babbitt, George McGovern and Ed Koch). In addition, Michael Dukakis appeared on Cheers. See id.

The Public Mind: Leading Questions (PBS television broadcast, Nov. 15, 1989) (transcript on file with Texas Law Review) (statement of Moyers); see also Hall, Bill Moyers Holds a Mirror up to America, L.A. Times, Nov. 12, 1989 (magazine supplement), at 4, col. 1 (statement of Moyers).

See IN SEARCH OF LIGHT: THE BROADCASTS OF EDWARD R. MURROW 1938­1961, at 9­13 (E. Bliss ed. 1967) (Murrow covered world events for CBS radio and television, starting with an eyewitness report on Hitler's seizure of Austria and ending with coverage of John F. Kennedy's inauguration).

Broadcast journalist Bill Moyers boldly characterizes the phenomenon of anchor "star power"': "'Tabloid TV shows are polluting journalistic standards by hiring celebrities as "reporters."' What happens to the basic standards of journalism when they are abandoned for the "celebrity"' appeal of imposters?" DD' Hall, supra note 81, at 84, col. 4 (statement of Moyers); see also Zoglin, Star Power, TIME, Aug. 7, 1989, at 46, 46­47, 49 (noting the negative influence of anchor stars on news, stressing excessive salaries of anchor stars and monetary costs to news divisions, and criticizing the immense power wielded behind the scenes by such anchors and the effects of that power on news broadcasting); Cohen, Drifting Anchors, Wash. Post, Feb. 16, 1990, at A23, col. 1 (explaining that the anchor's geographic presence, not the news value, determines the content of news programming); Goodman, New Cohost on "Today"' Eases Her Way into the Job, N.Y. Times, Jan. 9, 1990, at C18, col. 5 ("Personality is the main commodity [for being a morning news show host]: a ready smile to welcome visitors to another day; a go­down­smooth manner, to help the digestion of breakfast; a talent for making prepared small talk seem off the cuff . . . ."').

Criticizing the USA Today program, television critic Tom Shales quips: ""Snippet' is actually too grand a term for what the syndicated program dishes out. There are sound­bites, light bites, [and] news bites."' Shales, 'USA Today,' Nibbles And Bits, Wash. Post, Sept. 13, 1988, at C1, col. 1. "All journalism is condensation, but 'USA Today' takes this goal to a dizzying extreme. In pounding its informational nuggets into mush, it challenges viewers to find some reason to watch­­other than to test their kinetic responsiveness."' Id. at C8, col. 2.

Video news releases are "promotional materials that often mimic the techniques and conventions of television news programs."' Rothenberg, Promotional News Videos Gain Support, N.Y. Times, Sept. 11, 1989, at D12, col. 3. As described by Professor Eugene Secunda of Baruch College, a video news release

is an approximately 90 second electronic version of the PR profession's basic print tool, the press release. It's designed to promote the interests of its sponsor more subtly than TV commercials, which are required to clearly identify the advertiser. Its targets are the 700 local television station news shows currently produced in the nearly 300 U.S. media centers.

E. Secunda, Video News Releases: The Hidden Persuaders Revisited? 1 (Oct. 8, 1989) (unpublished paper delivered at Annual Media Ecology Conference in Saugherties, New York) (copy on file with Texas Law Review); see also Lipman, "'News"' Videos That Pitch Drugs Provoke Outcry for Regulations, Wall St. J., Feb. 8, 1990, at B5, col. 1 (noting some 2000 to 2500 releases offered annually to TV stations nationwide).

Carter, ABC News Divided on Simulated Events, N.Y. Times, July 27, 1989, at C20, cols. 4, 6 (quoting Ed Turner, executive vice­president of Cable News Network).

See id. at C20, col. 4 (discussing ABC News's use of simulated scene depicting Felix S. Bloch, the subject of an espionage investigation, exchanging a briefcase with a Soviet diplomat); see also Goldman, CBS News Stands by Re­ Enactment as Used in Series, Wall St. J., Jan. 15, 1990, at B5, col. 3 (stating that CBS will continue to use simulations although some adjustments will be made).

See Goodman, The Basic Crookedness of Docu­dramas, N.Y. Times, Nov. 2, 1989, at C24, col. 4 (docu­dramas turn "real life into entertainment"'); Garment, "Final Days"' for the First Amendment, N.Y. Times, Oct. 30, 1989, at A19, cols. 1, 4 ("If the courts diminish First Amendment protection . . ., it will come in the area of the docudrama. Here, the preponderant product . . . is so far removed from any respectable definition of journalism that it will be difficult to invoke the First Amendment with a straight face."'); Goldman, TV Network News Is Making Re­Creation a Form of Recreation, Wall St. J., Oct. 30, 1989, at 1, col. 1 (discussing "marriage of news and theatre"'); O'Connor, supra note 65, at H27, cols. 3­4.

Shales, Chung's Glossy Magazine, Wash. Post, Sept. 25, 1989, at B1, col. 4. As Bill Moyers powerfully puts it: "'When you mix fiction and news, you diminish the distinction between truth and fiction, and you wear down the audience's own discriminating power to judge if that was so or not so.'" Hall, supra note 81, at 84, col. 3 (statement of Moyers).

To examine the current state of public relations art, Harper's hired public relations consultants to develop a media strategy for winning over American opinion at the Second Coming of Jesus Christ. The resulting strategies included a staged appearance on "Saturday Night Live,"' a media "sound­bite,"' a national tour, and a battery of one­minute television commercials announcing the Second Coming. See He's Back!!!, HARPER'S, Apr. 19, 1989, at 47, 47.

This Week with David Brinkley (ABC television broadcast, Nov. 6, 1988) (emphasis added); see also F. GRAHAM, supra note 60, at 219­20 (noting the transition from 1975s sixteen­second news sound­bite to today's three­second news sound­bite, "too quick to be boring, or, frequently, intelligible"').

Incredibly, CBS news correspondent Lesley Stahl admits with a mixture of embarrassment and pride:

"As a reporter, I like to be able to wallpaper, as we say in television . . . . [That is, put] pretty pictures up while I'm talking behind it. Pretty, interesting pictures, pictures with movement. Pictures that will capture the audience eye. I shouldn't want that, because I know that it's deceptive and the audience won't really hear what I'm saying. But I still like it. I like my pieces to have energy."

The Public Mind: Illusions of News (PBS television broadcast, Nov. 22, 1989) (transcript on file with Texas Law Review) (statement of Lesley Stahl).

Having examined and synthesized over two hundred social science studies, University of Massachusetts at Amherst psychology professors Daniel Anderson and Patricia Collins contend: "There is, in fact, only a small relevant research literature [concerning the effects of television on cognition and behavior] and that literature yields only a few firm conclusions."' D. ANDERSON & P. COLLINS, THE IMPACT ON CHILDREN'S EDUCATION: TELEVISION'S INFLUENCE ON COGNITIVE DEVELOPMENT 8 (U.S. Dep't of Education, Office of Educational Research and Improvement Working Paper No. 2, 1988). One such firm conclusion that the researchers did reach was that even the lowest scientific estimate on viewing "represents large amounts of discretionary time spent with TV such that the opportunity clearly exists for television to exert an influence on a large number of children."' Id. at 13. Among their final observations, Professors Anderson and Collins concluded: "A true lack of influence is itself difficult to demonstrate, and there is not nearly enough research done to safely conclude that there are no important cognitive effects of television viewing."' Id. at 65. For a more positive assertion of the causal relationship of television viewing to cognitive and behavioral effects, see generally S. IYENGAR & D. KINDER, NEWS THAT MATTERS 112­33 (1987) (arguing that television news influences the priority viewers place on issues and the criteria by which viewers judge events).

Two points merit emphasis: First, a real possibility always exists that studies in this area will be biased, particularly when the economic influence of special interest funding is substantial. See D. ANDERSON & P. COLLINS, supra, at 72. Second, if tested by empirical evidence, the enhancement of rationality by commercial mass communications may be equally difficult to establish. See id at 76.

With the growth of multinational media corporations and the potential for the commercial media's invasion of a newly liberated Eastern Europe, among other places, world­wide programming is likely to be patterned after the American entertainment model. See, e.g., Harmetz, Hollywood Starts an Invasion of Europe's Booming Market, N.Y. Times, Jan. 11, 1990, at C19, col. 4 (quoting Gary Lucchesi, president of production at Paramount Pictures, on the opening of Eastern Europe: "The European market is expanding in leaps and bounds. When you combine the people in Eastern Europe with the Common Market countries, you have close to a billion people who will be longing for good [American] entertainment."'); Ostry, The Risks in Going Global, N.Y. Times, Dec. 31, 1989, at H29, col. 1 (arguing that international broadcasters will destroy the values and cultures of individual nations).

Yet, Professor Postman interestingly maintains that "television is at its most trivial . . . when its aspirations are high, when it presents itself as a carrier of important cultural conversations. The irony here is that this is what intellectuals and critics are constantly urging television to do."' N. POSTMAN, AMUSING, supra note 25, at 16. Postman argues that, when high­minded programming is situated in an entertainment medium, "the seriousness, clarity and, above all, value of public discourse dangerously decline."' Id. at 29; see also Anastaplo, Self­Government and the Mass Media, in THE MASS MEDIA AND MODERN DEMOCRACY, 161, 198­218 (H. Clor ed. 1974) (arguing for the removal of serious programming from television).

Anastaplo, supra note 94, at 204. But see Fantel, The Living Room Is Now the Stage, N.Y. Times, Dec. 31, 1989, at H20, col. 5 (sociologists noting anticommunal effects of VCRs); Collins, TV Subverts the First Amendment, N.Y. Times, Sept. 19, 1987, at 31, col. 1 (noting how television interferes with associational values).

See, e.g., Burns, "Moyers: A Second Look"'­­More Than Meets the Eye, N.Y. Times, May 14, 1989, at H33, col. 1 (asserting that Moyers is "one of the most celebrated and at times controversial providers of documentary films"'); see also B. MOYERS, supra note 43, at ix (a collection of 41 interviews by Bill Moyers regarding "changing American values and how these values affect our lives in an increasingly global culture"'). Ironically, Moyers is acutely critical of his medium:

"The truth of the matter is, the networks are finished as enlightened forces in public opinion. The mass media in this country are like the band on the Titanic. They're playing for the passengers to dance while the ship hits the iceberg. A lot of people are going to get rich before the collision, but they're finished as players . . . ."

Hall, supra note 81, at 84, col. 5 (statement of Moyers).

ABC's noted interviewer, when interviewed himself, commented on television's entertainment function:

"Vanna [(Vanna White of the Wheel of Fortune show)] leaves an intellectual vacuum, which can be filled by whatever the predisposition of the viewer happens to be,"' Koppel told me. "The viewer can make her whatever he wants."' . . .

Vannification is a fundamental principle in the understanding of political and media success­­and failure. Koppel believes the Vanna Factor now exists in all aspects of American life. "Mike Dukakis is using it, George Bush is using it,"' Koppel said. "And the more successful you are in leaving a certain uncertainty in the mind of the voter . . . . You would think that the voter would be frustrated by that, but on the contrary he has become acclimated to the notion that you just fill in the blank . . . ."

Blonsky, Ted Koppel's Edge, N.Y. Times, Aug. 14, 1988, § 6 (Magazine), at 35.

For a worthwhile discussion among celebrated figures in electronic and print media about a number of the issues discussed in this article, see The Other Side of the News: Entertainment News or Entertainment? (New York's WNET broadcast, Apr. 12, 1989) (transcript on file with Texas Law Review). Professor Fred Friendly moderated this public broadcasting event.

See generally W. BUCKLEY, ON THE FIRING LINE: THE PUBLIC LIFE OF OUR PUBLIC FIGURES passim (1989) (presenting a collection of transcripts for two decades of Firing Line representing Buckley's interviews with various public figures).

Reportedly, the instantaneous televised transmission of political developments in Eastern Europe played a significant role in spawning revolutionary fervor. Of course, these salutary effects occurred in a commercial­free medium and in a social culture radically different than that of contemporary America. See, e.g., Tempest, Romania Had Its Rebirth in a Television Studio, L.A. Times, Dec. 30, 1989, at A18, col. 1 (describing the influence of television on the Romanian Revolution); Rosenblum, Free Romania Television Fueled Nation's Revolution, L.A. Times, Dec. 27, 1989, at F3, col. 1 (describing the National Salvation Committee's use of television to lead the Romanian Revolution).

See N. POSTMAN, AMUSING, supra note 25, at 27­29; see also N. POSTMAN, CONSCIENTIOUS, supra note 25, at 172­73 (remarking that the entertaining visual image has replaced the spoken or written word as the primary medium of public discourse).

Hall, supra note 81, at 4, col. 1 (quoting Professor Stewart Ewen).

M. MCLUHAN & Q. FIORE, WAR AND PEACE IN THE GLOBAL VILLAGE 18 (1968). According to McLuhan's biographer, he frequently employed the

"metaphor he had devised to express what Wyndham Lewis had once taught him: 'The present cannot be revealed to people until it has become yesterday.' McLuhan termed this the 'rearview mirror phenomenon.' People went through life looking into the rear­view mirror­­seeing the present in terms of the past­­instead of paying attention to the reality confronting them."

P. MARCHAND, MARSHALL MCLUHAN: THE MEDIUM AND THE MESSENGER 209 (1989) (footnote omitted) (quoting, H. KENNER, THE POUND ERA 436 (1971) (quoting Wyndham Lewis)).

Here, we do not mean to refer to the narrow and historical conception of the dimensions of the 1791 guarantee. Rather, we refer to a more generative principle grounded solely in the concern to prevent an Orwellian type of government­­protection against censorial suppression of speech and press. However elastic or expansive this principle may be, it still does not contemplate the Huxleyan evil to which we have drawn attention.

On a related and important front, Professor M. Ethan Katsh has perceived that "the development of new communications technologies places pressure on the law to clarify the purposes of free expression."' Katsh, The First Amendment and Technological Change: The New Media Have a Message, 57 GEO. WASH. L. REV. 1459, 1479­80 (1989) (examining constitutional protections for electronic information systems, particularly the computer); see also infra note 159.

See, e.g., Emerson, The State of the First Amendment as We Enter "1984"', in FREEDOM AT RISK: SECRECY, CENSORSHIP, AND REPRESSION IN THE 1980s 31, 32 (R. Curry ed. 1988) [hereinafter FREEDOM AT RISK] (arguing that the most urgent problem facing the first amendment is the need for secrecy in national security); Koffler, The New Seditious Libel, in FREEDOM AT RISK, supra, at 140, 146 (arguing that the federal government currently invokes the need for secrecy to hide its authoritarian measures); Randall, When the Imagination of the Writer Is Confronted by the Imagination of the State, in FREEDOM AT RISK, supra, at 169, 170 (discussing a writer excluded from entry to the United States on the basis of views expressed); Schapiro, The Excludables, in FREEDOM AT RISK, supra, at 162, 164 (citing the United States policy of excluding foreign citizens on the basis of ideology as limiting free debate); Shattuck, Federal Restrictions on the Free Flow of Academic Information and Ideas, in FREEDOM AT RISK, supra, at 45, 51 (describing secrecy regulations promulgated to stop publication of scientific research under guise of national security); Stone, The Reagan Administration, The First Amendment, and FBI Domestic Security Investigations, in FREEDOM AT RISK, supra, at 272, 273 (arguing that domestic security investigations may become investigation of dissenters and not subversives); Pell, Kicking Out Palestinians, THE NATION, Feb. 5, 1990, at 167, 167 (1986 National Security Directive "aimed at chilling dissent by foreigners living in the United States"').

Interestingly, because of television's imagistic and commercial qualities, contemporary first­amendment doctrine must respond more frequently to claims of constitutionally protected symbolic and commercial speech. See, e.g., Texas v. Johnson, 109 S.Ct. 2533, 2536 (1989) (concerning the burning of an American flag as a form of political protest); Board of Trustees v. Fox, 109 S.Ct. 3028, 3030 (1989) (concerning the State University of New York's attempt to limit commercial speech­­"Tupperware parties"'­­within the dormitories of the school).

Consider in relation to the flag­burning case the spectacle of people fighting over images: a presidential candidate stands in front of a flag factory to assert patriotic leadership; a dissenter burns a flag to denounce administration policies of nuclear armament; a President responds by proposing an anti­flag­burning constitutional amendment so that his image will overshadow all dissent. Regarding the "Tupperware parties"' case, it seems inevitable that in a highly commercial culture, the marketing of china, crystal, and silverware will be equated with the marketplace of ideas.

The Orwellian danger is striking in today's China. See, e.g., Ignatius, Repeat After Me, Please: War Is Peace, Freedom Is Slavery, Wall St. J., July 20, 1989, at A1, col. 4 (reporting on the creation of required history classes in China's universities that present the official version of the democracy movement of 1989).

AMERICAN MEDIA & MASS CULTURE 407 (D. Lazere ed. 1987) [hereinafter AMERICAN MEDIA] (referring to statement by Alvin Gouldner).

A. MEIKLEJOHN, supra note 18, at 87 (the passage quoted was originally written in 1948).

Id.

Id. at xv­xvi.

Meiklejohn argued that Congress is empowered to "enlarge and enrich"' that "freedom of mind which befits the members of a self­governing society."' Id. at 19. Among his preferred proposals, he suggested that Congress enact laws that would bring the citizenry "together in activities of communication and mutual understanding."' Id.

See Sharp, Crosskey, Anastaplo, and Meiklejohn on the United States Constitution, 20 U. CHI. L. SCH. REC. 3, 7 (1973). See generally G. ANASTAPLO, THE CONSTITUTIONALIST: NOTES ON THE FIRST AMENDMENT 275­77 (1971) (arguing that success of republican government depends on quality of leadership, which in turn depends on education, and criticizing the caliber of television's contribution to mass education).

See Anastaplo, supra note 94, at 161­232. Despite our differences with his views, we acknowledge a debt to Professor Anastaplo whose provocative essay initially spawned our interest in the topics addressed in this and future essays.

Id. at 222. For a similar suggestion, see generally J. MANDER, FOUR ARGUMENTS FOR THE ELIMINATION OF TELEVISION 46 (1977) (arguing that America cannot return to a "sane and democratic"' process unless television is banned).

Anastaplo, supra note 94, at 223­24 (footnotes omitted). Failing complete abolition of commercial television, Anastaplo offers an alternative program. He introduces seven almost equally provocative suggestions for reform of the electronic medium: curtailment of the amount of daily television, reduction of commercial advertising influence, encouragement of local programming, limitation of television to strictly entertainment programming, airing of extended civic proceedings (if politics are to appear), content screening of nonpolitical programs, and encouragement of familial and communal self­restraint. See id. at 226­28.

We do not employ the phrase "modern scenario"' to depict the status quo in government regulation of the electronic media. See T. CARTER, M. FRANKLIN & J. WRIGHT, THE FIRST AMENDMENT AND THE FIFTH ESTATE: REGULATION OF ELECTRONIC MASS MEDIA 1­478, 634­86, 704­48 (1989). The modernist response to the Orwellian­Huxleyan dilemma is largely representative of today's highly capitalistic and technologically advanced culture. The archetypal character of the modernist first­amendment response will become more evident in our critique of this scenario in Part IV. At this point, it is only necessary to appreciate the existing potential for a significant realization of the modern scenario. Consider, for example, the deregulatory governmental trends affecting the mass communications industry. See, e.g., Syracuse Peace Council v. FCC, 867 F.2d 654, 656 (D.C. Cir. 1989) (upholding FCC termination of the "fairness doctrine"'); I. DE SOLA POOL, supra note 66, at 3, 45, 159­60, 221­23, 242­43 (describing the FCC's failed attempts to regulate computer networks and cable television).

I. DE SOLA POOL, supra note 66, at 4.

Id. at 10.

Another advocate of nonregulation of the electronic media is Professor Lucas A. Powe, Jr., who offers an historical expose of the political machinations of broadcast regulators. See L. POWE, AMERICAN BROADCASTING AND THE FIRST AMENDMENT 6­7 (1987).

Professor de Sola Pool's discussion of electronic media, though directed to television, encompassed all modes of electronic communication facing the actuality or potentiality of governmental regulation. See I. DE SOLA POOL, supra note 66, at 1­10.

Id. at 23­42. Professor de Sola Pool summarizes this point as follows:

A single physical means­­be it wires, cables, or airwaves­­may carry services that in the past were provided in separate ways. Conversely, a service that was provided in the past by any one medium­­be it broadcasting, the press, or telephony­­can now be provided in several different physical ways. So the one­to­one relationship that used to exist between a medium and its use is eroding. That is what is meant by the convergence of modes.

Id. at 23. For an expression of a similar concern, see S. BRAND, THE MEDIA LAB 214­19 (1987). See also Gilder, Forget HDTV, It's Already Outmoded, N.Y. Times, May 28, 1989, § 3, at 3, col. 2 (discussing the development of the "'telecomputer, which couples digital and video technology and fiber optics"').

See I. DE SOLA POOL, supra note 66, at 42­54. Professor de Sola Pool concludes:

More often than not . . . the bars on cross­ownership have proved ineffective. Despite government attempts to prevent it, cross­ownership reinforces a convergence among modes that is drastically changing the structure and legal status of communications industries. Neither competition among modes nor convergence between them is new; what is new is the scope of the convergence.

Id. at 53; see also Fabrikant, Time Inc. Takes Control of Warner Within Hours of Court Approval, N.Y. Times, July 25, 1989, at 1, col. 1 (describing a merger that created one of the largest communications and entertainment companies in the world).

Consistent with the current trend in deregulation of the communications media, de Sola Pool's modernist concerns are echoed in a special report of the Congressional Office of Technology Assessment. See OFFICE OF TECHNOLOGY ASSESSMENT, SCIENCE, TECHNOLOGY, AND THE FIRST AMENDMENT 65­68 (1988).

I. DE SOLA POOL, supra note 66, at 54.

Nader & Riley, supra note 8, at 6­7 (footnotes omitted).

Id. at 7 (footnote omitted).

Id. at 7­9.

See id. at 1­86.

Founder and director of the Center for Study of Responsive Law.

Washington, D.C., public­interest lawyer.

In fact, Nader and Riley append a detailed model statute for the creation of Audience Network. See Nader & Riley, supra note 8, at 87­125.

Id. at 4. For a discussion of an earlier and similar proposal, see Cirino, An Alternative American Communications System, in AMERICAN MEDIA, supra note 108, at 568, 568­76.

Nader & Riley, supra note 8, at 86.

To some extent, the first amendment already recognizes differences between modes of expression, as evidenced by the use of distinct terms for freedom of "speech"' and of the "press."' Some have argued that this difference should be determinative. See, e.g., Stewart, "Or of the Press"', 26 HASTINGS L.J. 631, 633­34 (1975) (excerpt of Address by Potter Stewart, Yale Law School Sesquicentennial Convocation (Nov. 2, 1974)).

We direct our less careful reader to Appendix B.

Again, crossing the Rubicon means understanding the differences between the Orwellian and Huxleyan forms of tyranny, and appreciating the difficulties of developing first­amendment principles to suit an electronic entertainment medium. Those who attempt this venture are the first­amendment paratroopers who cross the Rubicon­­and then jump?

Popularly known as America's "Cradle of Liberty,"' Faneuil Hall was constructed in 1742 and served as a meeting place for debates in opposition to the Sugar Tax of 1764 and the Stamp Act of 1765. In the next century, Faneuil Hall provided a forum for speakers such as Frederick Douglass and Susan B. Anthony. See R. BEARSE, MASSACHUSETTS: A GUIDE TO THE PILGRIM STATE 198 (2d ed. 1971). Today, Faneuil Hall is the centerpiece of an urban shopping mall.

In this regard, is not Allan Bloom's attack on higher education really an indictment of the American democratic regime per se? See A. BLOOM, THE CLOSING OF THE AMERICAN MIND 25­43, 243­382 (1987). Not surprisingly, the classicist must register a dissent to Bloom's larger thesis. See, e.g., Anastaplo, In re Allan Bloom: A Respectful Dissent, in ESSAYS ON The Closing of the American Mind 267, 267, 272, 275, 284 n.5 (R. Stone ed. 1989) [hereinafter American Mind] (criticizing Bloom for shoddy research and factual errors); Colmo, Allan Bloom and the American Premise, in American Mind, supra, at 154, 154­57 (arguing that Bloom attacks the modern notion of self without substituting another definition); Drury, Allan Bloom and the Charms of Culture, in American Mind, supra, at 158, 158­65 (arguing that Bloom presents a choice between the extremes of a closed society or cultural anarchy); Jaffa, Humanizing Certitudes and Impoverished Doubts: A Critique of The Closing of the American Mind, in American Mind, supra, at 129, 129­53 (arguing that Bloom misapplies the lessons of the classics to American society); Kesler, The Closing of Allan Bloom's Mind: An Instant Classic Reconsidered, in American Mind, supra, at 174, 174­80 (arguing that Bloom places too much emphasis on the role of American universities in the development of American culture); West, Allan Bloom and America, in American Mind, supra, at 166, 166­74 (noting that Bloom concentrates solely on the American colleges which have little influence on overall American culture).

See Anastaplo, supra note 94, at 223­28; see also Programs Urge Viewers To Turn Off Their Sets, N.Y. Times, Aug. 25, 1989, at D18, col. 3 (noting that one San Francisco public broadcasting station airs a children's program during the summer which encourages them to turn off the television and read so that they do not lose important academic gains during the summer months).

N. POSTMAN, AMUSING, supra note 25, at 158.

See generally Schlag, An Appreciative Comment on Coase's The Problem of Social Cost: A View from the Left, 1986 WIS. L. REV. 919, 960 (asserting that "'idealized visions lead to the you­can't­get­there­from­here problem"').

From this perspective, the conservative classical agenda resembles that of its radical counterpart. Interestingly, both would empower government to contain the drives of corporate commercialism; of course, they would do so for distinct, perhaps contradictory, reasons. The combined force of the ideological right and left may well threaten the hegemony of conventional constitutional doctrine in this area.

What would the classicist do with commercial print ventures, like the newspaper USA Today or People magazine?

In antiquity, commercial oral speech was the province of sophists, whom the classicists likewise abhorred.

See, e.g., E. HAVELOCK, THE MUSE LEARNS TO WRITE 9 (1986) (noting that a wealth of detail and depth of psychological feeling of non­Greek culture was lost when orality was transformed into literacy); E. HAVELOCK, ORIGINS OF WESTERN LITERACY 6 (1976) (arguing that written language fails to fulfill the full potential of oral language); E. HAVELOCK, PROLOGUE TO GREEK LITERACY 4 (1971) (noting that the creative process of oral­historical embellishment by successive bards ended in Greece when the Greek alphabet was invented); M. MCLUHAN, supra note 44, at 48 (characterizing the alphabet as an aggressive absorber and transformer of cultures); W. ONG, ORALITY AND LITERACY 10­15 (1982) (noting that once writing took possession of the psyche of oral cultures, the production of highly artistic and beautiful verbal performance was no longer possible); W. ONG, THE PRESENCE OF THE WORD 18 (1967) (noting that it was impossible to understand the psychological and cultural significance of oral expression contrasted with writing and print, until we moved into the present age of telephonic and electronic communication); W. ONG, RAMUS, METHOD, AND THE DECAY OF DIALOGUE 307­14 (1958) (discussing the implications for modern cultures of letterpress printing and of Ramism, which views the elements of dialogue and all expression as letters rather than sounds).

We discuss these, and other points, in our forthcoming essays, Electronic Texts and Death of Discourse, and in Collins, Writing on Writing.

For the classicists to deny the proposition noted in the text, they would have to obscure the paradox latent in the union of the warring typographic and oral traditions. The advent of typography raised its own form of the paratroopers' paradox in its time: orality could not save itself without destroying itself, because the word, in order to be effective, had to "speak"' its case in print.

On a somewhat related score, we find it curious that the new critics of legal studies devote such great attention to the interpretation of texts. Although purporting to represent the cause of "new voices"' or "other voices,"' they seem deaf to the oral. Put differently, is not the real problem with the Langdellian method more one of its format than its content? Should not the new critics question the continued use of texts in classes? Would not the return to the oral be entirely consistent with the eradication of the traditional legal (typographical) mindset and the introduction of other voices?

See generally E. WOLGAST, THE GRAMMAR OF JUSTICE 1­76 (1987) (describing "social atomism"' as the view that society is composed of a collection of independent, self­motivated entities); Collins & Skover, The Future of Liberal Legal Scholarship, 87 MICH. L. REV. 189, 221 (1988) (attributing to classical liberal legalism the philosophy that "the individual [was] a free, rational, and autonomous agent who was both the source of political authority and the ultimate justification for its exercise"'); id. at 220­37 (discussing criticism of the contemporary liberal legal emphasis on individual­rights consciousness).

See PLATO, supra note 63, at 235.

See supra note 117.

As Professor Steven Shiffrin aptly notes, when expression is justified for atomistic self­gratification, it is "likely to promote individualist alienation and to discourage civic virtue. More directly to the point, it is likely to promote a privatized nonengaged citizenry. So while American educators encourage persons to participate in the body politic as 'citizen­ critics,' American television teaches people to be hedonistic consumers."' S. SHIFFRIN, supra note 3. On a related matter, Professor Todd Gitlin observes:

[I]f we are serious about living in a democracy, the fundamental responsibility of the media should be to help people better pursue their rights and obligations as citizens, not to sell goods, . . . or sprinkle flakes of celebrity and blips of disconnected fact upon the daily life of a society otherwise dedicated to private gain. Democracy requires an active, engaged citizenry committed to determining and seeking the public good. As it is, the bulk of commercial television . . . reminds us to think of ourselves as consumers first and foremost.

T. GITLIN, supra note 2, at 334.

Schauer, Free Speech and the Demise of the Soapbox (Book Review), 84 COLUM. L. REV. 558, 565 (1984).

A. HUXLEY, supra note 23, at 41.

See Schauer, supra note 152, at 569.

This is not to deny, apart from the first­amendment context, the importance of the relationship between media and power. See, e.g., H. INNIS, THE BIAS OF COMMUNICATION 3­32 (1951) (assessing the refinement of printing as hastening the rise of nationalism, savagery, and revolution in the twentieth century); C. MILLS, POWER, POLITICS, AND PEOPLE 577­98 (1963) (arguing that sudden advances in communication technology destabilize society); C. MILLS, supra note 65 (arguing that centralization of the expression of opinion and the difficulty of the individual to answer, combine to grant power to those who control the instruments of communication).

In McLuhanesque terms, perhaps this is a case of imposing a "hot"' message on a "cool"' medium­­television. See M. MCLUHAN, UNDERSTANDING MEDIA 36­45 (1964); Marchand, supra note 102, at 140­42, 150, 168­69.

See N. POSTMAN, AMUSING, supra note 25, at 159 (arguing that television is most dangerous when it "co­opts serious modes of discourse­­news, politics, science, education, commerce, religion­­and turns them into entertainment packages"'). Postman calls for education in the schools regarding what information is and how it gives direction to our culture, presumably in a nonelectronic format. See id. at 160. Consistent with Postman's larger theme, there is the danger that electronic education will undermine the educational process. See Goodman, Are Commercials in the Classroom Cause for Alarm?, N.Y. Times, June 18, 1989, at H27, col. 1; Verhovek, supra note 7, at 1, col. 6; Innerst, Turner Bids for Young Minds with Free TV News, Wash. Times, Apr. 27, 1989, at A6, col. 1; cf. Rosen, Classroom TV Can Become a Lesson in Media Criticism, L.A. Times, Mar. 12, 1989, § 5, at 5, col. 1. For a descriptive account of the educational media efforts of Whittle Communications, see China, Debut of Commercials on School TV Renews Debate Over Shows' Value, N.Y. Times, Mar. 6, 1990, at A18, col. 1; Donohoe, Whittle Carves Out a Niche in Media, Wash. Times, July 19, 1989, at E1, col. 5.

A HUXLEY, supra note 23, at 90­91. In the comment quoted above, Huxley confronted a similar and larger paradox, involving the dissipated power of constitutions and protective legislation in the face of pressures of propaganda, overpopulation, and over­bureaucratization.

Insightfully, Professor M. Ethan Katsh predicts the probability of format­specific first­amendment doctrines in an electronic age. See Katsh, supra note 104, at 1483­85. See generally M. KATSH, THE ELECTRONIC MEDIA AND THE TRANSFORMATION OF LAW 113­67 (1989) (noting that the advent of new technology demands clarification of the purpose of free expression).

"'We're in unmapped territory,'" observed Bill Moyers, "'where the image is the dominant grammar of our public conversation, and we're not even sure how to think about it.'" Hall, supra note 81, at 4, col. 1 (statement of Moyers).