The Failure of the First Amendment

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.