Questions for Analysis and Discussion
of Assignment #8:

Ronald Collins and David Skover,
The Death of Discourse
Part II

Query: A full one-half of "Commerce & Communication" is dedicated to the history of modern advertising which is described generally as "the story of the movement from product-information to image and lifestyle advertising." What is the significance of this story to the larger purposes of "Commerce & Communication"?

Query: In the chapter entitled "Communication & the Capitalist Culture," the authors explore free speech options in our advanced capitalist and consumerist system and argue that image is all, truth is irrelevant, there is no right to know, and we are as we consume. What do these slogans mean? How might these connections of commerce to communication radically alter views on commercial speech?

Query: What are the consequences for First Amendment jurisprudence of accepting that there is no place for the mind in the marketplace; that there is no test of truth in the marketplace; that the right to know has no currency in the marketplace; and that commerce cannot be disentangled from communication in America as we know it?

Query: In discussing the proposition -- "We are as we consume" -- the authors claim at Page 114: "From a First Amendment definitional standpoint, it is increasingly difficult to demarcate the realms of the commercial from those of the political and cultural, to distinguish commercial expression from the most preferred forms of democratic speech." What accounts for this difficulty? Are there likely to be workable definitional boundaries in contemporary First Amendment doctrine for commercial and non-commercial expression?

Query: Considering the critique of C. Edwin Baker and the progressives, the authors argue that ultimately the progressive attack on commercial speech is likely to fail because it is not radical enough. Do you agree?

Query: What is the significance of acknowledging the dissonance between the First Amendment's traditional values of rational decisionmaking and self-realization and the First Amendment's protection of commercial communication? Why should the constitutional defenders of commercial speech ever concede that the real reason for constitutional protection of modern mass advertising is that it is speech in the service of selling? What is the danger of allowing the ignoble lie to endure?

Query: Judge Alex Kozinski and his colleague Stuart Banner mount the attack that Commerce & Communication is "ahistorical" in the sense that it suffers from a romanticized vision of the past. In the dialogue at Page 127, they state: "We have no reason to believe (and [you two] provide none) that reasoned discourse represented any greater fraction of total communication 200 or 100 years ago than it does now. Our predecessors were up to more than attending town meetings and writing The Federalist: They were also singing bawdy drinking songs, reading racy French novels, publishing nasty false attacks on members of the opposing political party, and touting the virtues of all kinds of quack medical treatments." Have they struck a telling blow?

Query: In the dialogue at Page 133, Professor Rodney Smolla of William & Mary College of Law argues: "In classic First Amendment terms, . . . the one thing the government may not do is regulate speech because it ‘sells’ a lifestyle, fantasy, ethos, identity, or attitude that happens to be regarded by most as socially corrosive." He concludes: "The very ‘excesses’ of modern advertising that might at first make it seem a likely candidate for heavy legal regulation are actually the attributes that most qualify such speech for the heightened constitutional protection we routinely grant other categories of speech." Conceding Professor Smolla's characterization of First Amendment constraints, what flows from his conclusion?