The Failure of the First Amendment

By Robert Jensen, AlterNet. Posted March 1, 2006.

There is no shortage of books these days analyzing what contemporary U.S. society gets wrong, but one of the criteria on which the United States ranks high in the world is legal protection for freedom of expression. Our legal regime built on the First Amendment's protections of freedom of speech and press is not perfect, but over time the scope of real expressive liberty has expanded, as popular movements and progressive legal thinkers have demanded that liberty and crafted the rules for making it real in day-to-day life.

That's why Ronald K.L. Collins' and David M. Skover's The Death of Discourse is so chilling: The book details why our traditional approach to freedom of expression -- the ideas that led to this expansion of liberty, ideas that are admirable in so many ways -- is ill-equipped to cope with either the contemporary challenges we face or the future. In fact, this traditional approach to freedom of expression may well be hastening the collapse of the culture.

Could it really be that grim? Is this the nature of the modern crisis: Even what we have learned do well is going to contribute to our demise? When the first edition of the book was published in 1996, my answer was a painful, but tentative, yes. As the updated edition is published, I am ready to drop the tentativeness. Collins and Skover identify a few key questions that we can not ignore: "If today's First Amendment represents a way of life, what kind of life? If it represents freedom, what kind of freedom? And if it represents the triumph of democracy, what kind of democracy?"

Collins and Skover explain that we face both Orwellian and the Huxleyan threats in the First Amendment arena. The former are rooted in the nightmare vision of the novel 1984, in which thought and expression are constrained by the direct repression of the state and no meaningful freedom is permitted. The latter describe the equally nightmarish vision of Brave New World, in which people are flooded with a pacifying array of amusements so that freedom becomes irrelevant.

Our First Amendment jurisprudence is rooted in the fear of that direct state repression, and for good reason; human history is replete with examples of that repression, including dramatic and recurring examples from U.S. history. Collins and Skover point out repeatedly that concerns about the use of state power against individuals and groups who dissent can never be ignored, and they re-emphasize the importance of that in the second edition, keeping in mind the post-9/11 experience of the Patriot Act and the Bush administration's rejection of due process for thousands of prisoners in the United States and abroad.

So, without dismissing the threat of government suppression, they highlight the perhaps greater danger of a passive and placated public. While we have secured expansive rights against government repression: "Now our free speech system equates electronic self-amusement with enlightened civic education, the marketplace of items with the marketplace of ideas, and passionate self-gratification with political self-realization."

Collins and Skover identify these primary threats:

1. "the difference between the old principles of political speech (rational decisionmaking, civic participation, meaningful dissent) and the new practices of an electronic entertainment culture (trivialization, passivity, pleasure)."

Freedom of expression is crucial to self-government, but mass media have developed in ways that undermine people's capacity to participate meaningfully in the formation public policy. That comes both from the flood of entertainment -- the modern equivalent of the circus in "bread and circuses" -- that so easily diverts people from the public arena, and the steady degradation of the intellectual level of so-called television journalism, especially on the cable talk shows.

2. "the difference between the informational principles of commercial speech (marketplace of economic ideas) and the imagistic practices of a mass commercial advertising culture (marketing of items)."

Whatever one's evaluation of the morality or sustainability of capitalism, freedom of expression is crucial to a functioning market economy, but the manipulation industries (marketing, advertising, and public relations) undermine a real market system. The hundreds of billions of dollars spent on commercial propaganda make a mockery of any notion of markets based on information and rational actors; the whole system is designed to suppress honest information and promote irrational behavior.

3. "the difference between the lofty principles of artistic expression (self-realization) and the low practices of a pornographic culture (self-gratification)."

Freedom of expression is crucial to self-realization and the exploration of the psychological and sexual, but the emergence of a mass-marketed pornography has led not to deeper understanding of those aspects of our lives but a coarsening and cheapening of intimacy.

Collins and Skover recount these threats honestly and recognize that we face a paradox, dilemma, and conundrum, which track with the three threats:

1. The paradox: "In the modern mass entertainment world, the traditional First Amendment may have to destroy itself to save itself. With governmental regulation of the amusement culture, First Amendment protection is likely to collapse into First Amendment tyranny. Without such control, First Amendment liberty is likely to collapse into First Amendment triviality."

2. The dilemma: "In the commercial marketplace, communication in the service of sober economic reason is overwhelmed by communication in the service of compulsive pecuniary logic. To preserve reason in the marketplace, the First Amendment must steadfastly deny such protection for modern mass advertising. To preserve freedom in the marketplace, the First Amendment must zealously affirm laissez-faire values."

3. The conundrum: "In pornutopia, deliberative discourse dies and is reincarnated as image-driven eroticism. On the one hand, governmental regulation to keep pornutopia at bay is likely to become increasingly futile. On the other hand, governmental indifference to the lure of pornutopia is likely to recast the First Amendment in wanton ways."

The authors also do us the favor of admitting defeat in the face of these challenges. Rather than pretending there are easy resolutions, they leave readers to ponder the complexity of the questions and face the painful reality that there is no quick fix. This is not a set of problems that can be remedied by tweaking existing public policies. Instead, a conceptual revolution of sorts is needed, and to date no viable candidate for a new framework for the First Amendment is on the horizon. That may seem depressing, but better to understand the nature of the problem and acknowledge the limits of our current intellectual tools than to pretend that illusory solutions are real.

I would offer two friendly amendments to the analysis. First, a much clearer discussion of the nature of capitalism is necessary to launch that new conceptual framework. Here, the intellectual tools are in place from centuries of left critique. Simply put: Capitalism is inconsistent with democracy, sustainable economic activity, and the preservation of the best elements of human nature.

Capitalism is a wealth-concentrating system that inevitably concentrates power. Minor modifications in the system are possible to check the most grotesques abuses of that power, but in the end there can be no meaningful democracy in a corporate-capitalist society.

Capitalism is based on a notion of unlimited growth on a finite planet. Capitalist economic systems are not the only ones that have drastically drawn down the ecological capital of the planet, and again, minor modifications can be made to slow the assault on the biosphere. But in the end, capitalism is the end.

Capitalism draws out and rewards the worst aspects of human nature. We all are capable of a range of behaviors, and systems push people in specific directions. Capitalism pushes people toward greed, an obsession with a narrow concept of self-interest, and treatment of other people as objects.

In short, any serious discussion of what a system of freedom of expression might look like in a healthy, sustainable, fulfilling society must come to terms with the depravity of capitalism. The fact that we live in a society that has adopted precisely the opposite evaluation -- every day extolling the alleged virtues of capitalism -- simply means there is a lot of intellectual and political work to be done.

On the issue of pornography, Collins and Skover pay inadequate attention to the feminist critique of pornography that emerged in the 1980s. This perspective demonstrates that the threat of pornography (and of all the sexual exploitation industries, including stripping, prostitution, and sex trafficking) comes from the marriage of capitalism and patriarchy. That is, pornography does not exploit everyone equally; it is a reflection of a society that is rooted in the dynamic of male domination and female submission, and one of many practices that helps keep that dynamic in place. This is more readily evident today than when the first edition was published, as the products of the pornography industry have become steadily more degrading toward women in the presentation of a vision of male sexuality that is saturated in cruelty.

But these concerns are relatively small in the face of the service Collins and Skover have provided in The Death of Discourse. They not only face difficult realities but resist the temptation to imply there was a golden age in which all was well with the state of U.S. democracy and culture. But one need not pine for a non-existent golden age to see the contemporary threats. Yes, the use of bread and circuses to divert people is not new, nor is the domination of those who concentrate wealth, nor are the patriarchal gender relations at the heart of pornography. But the contemporary manifestations of these forces are troubling, not just because of the consequences in the world but also because of the culture's unwillingness to confront the fundamental issues.

What is scary is not just that we face problems, but that so many people see the system that produces the problems as a grand and glorious success. Before a society can figure out solutions to problems, it has to recognize the nature of the systems that produce the problems.

The history of the First Amendment is a story of people bravely struggling against concentrated power to secure the blessings of liberty. The future of the First Amendment will depend on people being brave enough to confront the destructive forces inherent in the system.

Our First Amendment heroes of the past have been the radicals willing to stand up to the police officer's clubs and risk jail. Their courage was admirable, and our debt to them is clear. Our First Amendment heroes of the future will no doubt someday be called upon to take radical actions, but it is difficult to anticipate those actions until we are further along in the conceptual revolution needed. Our first act of courage is to face honestly the state of the society.

These First Amendment struggles are not only crucial because of the centrality of expression in human life, but also because similar paradoxes, dilemmas, and conundrums are all around in political, economic, and social life. When we face them honestly, the triumphalism of the culture gives way quickly to a sinking feeling in our guts: We're heading in the wrong direction, at increasingly rapid speed, with less and less time to change course. We face crises that demand a sense of urgency, yet also require a fundamental shift in the culture that can't happen overnight. We need to act, now, but with an understanding that the necessary change is down a road that we have not yet built.

Those who continue to mouth the platitudes of the past will be quickly forgotten. Our future First Amendment heroes will be the people who help us find way through the challenges and onto that road.

Robert Jensen is a journalism professor at the University of Texas at Austin, and the author of, most recently, The Heart of Whiteness: Confronting Race, Racism and White Privilege (City Lights Books).

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