Prologue //

Scene 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.

Discourse is dying in America,
yet everywhere free speech thrives.

This 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 entertainment culture.

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.

Only 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."

Unfortunately, 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 practical meaning.

In 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? Who indeed?

It 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 moment.

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 First Amendment.)

  • Although 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.)

  • To 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!)

  • To 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.)

  • We 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.)

  • Having 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 marks.)

  • This "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 and democracy.)


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.

                               Preface to The Spirit of the Laws,
                                     trans. Thomas Nugent (1750),
                                ed. David W. Carrithers (Berkeley:
University of California Press, 1977), p. 91