opens with the Adagietto from Gustav Mahler's Fifth Symphony. Daybreak
at the ruins of the Acropolis. The music continues past its first delicate
measures to the key change at its passionate bridge. The focus slowly
zooms away from the ancient pillars and into the halls of the National
Archives in Washington, D.C. Collins & Skover enter, proceed directly
to the display of the 1791 Bill of Rights, and reflect silently. With
the diminuendo at the end of the musical score, the text below comes
boldly into view.
is dying in America,
yet everywhere free speech thrives.
is difficult to grasp, much less grant. After all, how can something
be dying and thriving at once? Grapple with this and you will be prepared
for what follows. Believe us, we "speak" to you in the tongue of our
times, even in the face of our more rationalist bents. Discourse. It's
a weighty word of classical origin, the sort of utterance that runs
to and fro in erudite circles. Something beyond mere talk is implied.
Unlike trivial talk, discourse resonates with reason, with method, with
purpose. Whether its loftier values were ever entirely realized is,
in one sense, of no moment. Discourse is an ancient aspiration. As idealized
in our vision of classical Greece, Western culture valued expression
as a means to some telos, some greater end. For Aristotle, expression
was not simply for its own sake but, rather, was discourse in the service
of the civic good, or agathon. Expression, properly understood, was
essential to paideia, the shaping of character. This, of course, is
all Greek to us as young Americans. Ours is a system of free speech
-- free from old notions of discourse. For us, expression is no more
or less than the speech of our daily experiences. The sight, the sound,
indeed the feel of robust expression is a thing of joy in the carnival
of life we call modern mass culture. To communicate with uninhibited
liberty, to talk in the vernacular of the popular culture, to express
that culture's tastes, is the way of free speech in America. It is often
speech for its own sake, speech in the service of self-gratification,
and speech that is essential to the raison d'etre of a commercial
These two cultures of expression -- the old discourse and the new free
speech -- turn to the First Amendment for constitutional recognition.
Ever since 1791, the judicial and scholarly keepers of the Amendment
invoked the high ideals of discourse to define the boundaries of protected
expression. They continue to do so even now as they summon the traditional
values of enlightened reason, self-government, and self-realization
to protect communication in contemporary popular culture. We wonder,
however, why they ignore the wide gulf between yesterday's reasons and
today's realities. And we question whether the First Amendment is actually
what judges and scholars say it is, or rather what we realize it is.
Know this: The First Amendment is more than law.
It is a way of life.
in a technical, although important, sense is the First Amendment solely
the province of law. Its symbolic and functional meanings extend well
beyond what pinstripe-suited lawyers proclaim in courtrooms, beyond
what black-robed judges pen in case reports, and certainly beyond what
cardigan-sweatered professors pronounce in scholarly journals. James
Madison's genius cannot be restricted to the cramped quarters of legal
doctrine or to the tidy categories of legal theory. To know the Amendment's
vital meaning, one need do no more than breathe its air. In short, the
high values of yesterday's First Amendment must be squared with the
realities of free speech in today's America. With law as with physics,
"a theory must first and foremost reflect the way the world is."
what the elite few say about the First Amendment does not mirror what
the many do with it. Hence, the truer referent point of the free speech
guarantee is the unremarkable talk of popular culture rather than the
remarkable discourse envisioned by constitutional doctrine and theory.
For this reason, the keepers of the First Amendment need to reflect
upon the culture of free expression in order to realize the Amendment's
law, understanding the First Amendment typically proceeds deductively,
from the top down. Jurists and legal commentators impose the world of
theory onto the world of practice. With this aim, they proudly drag
out the dead: the likes of Plato, Aristotle, Milton, Locke, Spinoza,
Mill, Hume, Jefferson, Madison, Emerson, Whitman, Holmes, and Alexander
Meiklejohn, among others. Similarly, they parade a variety of elevated
notions ranging from the attainment of truth to moral responsibility
in order to justify speech's special status in our democratic regime.
Who would not applaud this worthy tradition of aligning the noble purposes
of the First Amendment with their noble counterparts in public expression?
is said that for love of country Niccolò Machiavelli "'pissed in many
a snow.'" The great Florentine political philosopher expressed his love
of country by calling for a realpolitik. His point: It is "more fitting
to go directly to the effectual truth of the thing than to the imagination
of it." The First Amendment is in need of a similar love -- a willingness
to stain the white snow of pure principles in the name of our common
reality. To do this we need to develop a bottom-up approach to the First
Amendment, an approach going directly to our communicative experiences
rather than to imaginative theories. Such an approach might represent
a real awakening in First Amendment law, a new sort of Machiavellian
Commercial TV is the Rosetta Stone of our times.
If we look at America's free speech as it is, rather than as it should
be, what would we find? Having made such a discovery, what then would
our notions of the First Amendment be were they premised on that experience?
Tellingly, this culture-centered method - what we call a cultural approach
to the First Amendment - is still a strange concept to those content
with never looking too closely at unsullied snows.
Our popular culture is defined by mass communication
- communication that permeates almost all exchanges in the American
culture, including one-on-one and small group conversations. Even the
character of private talk cannot be entirely sequestered from the merging
forces of mass talk. These forces, which are necessarily related, are
identified by wide (even global) dissemination, broad (typically entertaining)
appeal, dynamic (and disconnected) images, ever-changing (yet often
repetitive) themes, commercial (more precisely, capitalistic) marketability,
and by the appropriation (and redefinition) of our most cherished symbols
and values. All of this is made possible by electronic technology. In
fact, the forces of mass communication are so great as to influence
the very logic of much thought and expression. (Indeed, in our culture
this paragraph is turgid to the point of virtual unintelligibility.
But do not worry, for we'll bring things down a bit and be more reader-friendly.)
We cannot honestly think about the First Amendment as a way of life
without considering the impact of entertainment and commerce on communication.
TV talk, for example, is the talk of our times. There is no escaping
the fact: TELEVISION is an essential part of our modern culture of communication.
"[I]t has oozed everywhere." So much of who we are, what we think, how
we express ourselves, and how we perceive and react to our world are
tied to television. Above all, television frames this world with a surfeit
of entertainment. It is communication in the service of pleasure. Perhaps
more than any other medium, it is our cable to consciousness.
Furthermore, virtually every type of expression is dwarfed by another
form of popular communication - ADVERTISING. It represents a multi-billion
dollar investment that links commerce with communication. Various types
of mass advertising (e.g., product-image and lifestyle advertising,
among others) reveal the character and direction of much contemporary
expression. In the service of selling, mass advertising frequently seizes
on our politics, values, and even identities, and translates them into
commercial talk. This is the marriage of the marketplace of items to
the marketplace of ideas.
Where entertainment and commerce are the paradigms of communication,
"discourse" inevitably combines with intercourse. Clearly, sex appeals
and sex sells. PORNOGRAPHY (whether the soft porn of television or the
hard porn of explicit videos) represents the commodification of sex.
Like advertising generally, it trades the essence of the person for
a money-making image. It is a form of communication that promises to
make the unattainable attainable. The popularity of pornography is an
index of the free speech valued in today's culture.
Of course, mass communication in modern America exists in still other
arenas. And, as we discuss later, it is precisely the object of our
cultural approach to the First Amendment to identify and evaluate all
other such major environments. In the three main arenas we have identified
thus far, the operative logic abounds in contradictions. For example,
a proposition can be at one with its opposite; something can assume
the attributes of something else merely by visual association; a point
can simultaneously be understood yet misunderstood; and, a fact can
be real and unreal at the same time. Incredible, yet true. In what follows,
we wrestle with this logic of contradictions as we develop our cultural
approach to the First Amendment.
WARNING! Reader beware!
We are not entirely what some will paint us to be. Before leaving this
Prologue, we think it prudent to sketch our own portrait in bold strokes.
Without the benefit of elaboration, we thus declare the following:
The obvious import of our enterprise is more descriptive than
normative. Thus understood, our work is more concerned with depicting
and discussing certain forms of expression in contemporary America
than it is with promoting any conventional view of the First Amendment.
(Bear this in mind as you think about our cultural approach to the
our analysis often focuses on the values of the traditional First
Amendment, our enterprise does not depend on affirming or denying
those values. (Many will forget this admonition.)
the degree that we dwell on the values of the traditional First
Amendment, we do so in order to examine the apparent tension between
theory and practice. Again, we ask: Can the high values of free
expression be squared with the dominant character of mass communication
in our popular culture? (Beware of false prophets!)
say that traditional free speech values cannot always be squared
with popular mass expression is not to say that such expression
automatically should be denied First Amendment protection. It is
only to say that the reason(s) for protecting such expression must
be other than the traditional norms. (Assuredly, this point will
elude many ideological diehards.)
ask, and we invite you to ask: What notion of the First Amendment
would be most compatible with popular mass expression as we have
come to know it? What candid and honest view of the First Amendment
might countenance a generous measure of protection for such speech?
(Once again, our cultural approach has a role to play here.)
asked the question, we suggest a possible "answer": Constitutional
protection of speech linked to pleasure and to commerce is entirely
consistent with the values of a highly consumerist and capitalistic
culture. Here too, our endeavor does not depend on approving or
disapproving this "answer." (Consider the importance of the quotation
"answer" raises yet another question: What would be the social and
legal consequences of signing on to such a view of the First Amendment?
(In answering this, think about the relationship between discourse
I beg one favor of my readers, which I fear will not
be granted me; this is, that they will not judge by a few hours reading,
of the labor of [several] years.... If they would search into the design
of the author, they can do it no other way so completely as by searching
into the design of the work.
to The Spirit of the Laws,
trans. Thomas Nugent (1750),
ed. David W. Carrithers (Berkeley:
University of California Press, 1977), p.