Daniel Barbiero

barbiero@enigma.com

 

Ronald K.L. Collins and David Skover. The Death of Discourse.Boulder, CO: Westview Press, 1995.

 

What, in an age of electronic mass communication, is the status of the First Amendment? Specifically, what is or should be the scope of First Amendment protection, given the seeming ubiquity electronic dissemination has afforded commercial speech and entertainment? Ronald Collins and David Skover raise and explore just such questions in their book, which examines the contemporary culture of free expression in the overlapping contexts of popular culture and commercial discourses.

 

(In the interests of full disclosure, I should mention here that I know Collins and Skover and have discussed some of these issues with them in connection with the articles — subsequently and substantially rewritten — on which this book is based. I am acknowledged in the book for my part in these informal dialogues.)

 

I

 

Collins and Skover contend that there are operating at present two cultures of expression. The first, roughly corresponding to the political and intellectual elites, is that of discourse, while the second, roughly corresponding to mass cultures, is t hat of “the new free speech.” By their definition, “discourse” is speech resounding “with reason, with method, with purpose” (ii), while the new free speech consists in the “vernacular of the popular culture . . . in the service of self-gratification” (i i). Although the deliberative discourse of the elites has traditionally been afforded full First Amendment protection, this same protection has been increasingly granted to other forms of expression, thus creating a “wide gulf” separating the kind of (ve rnacular) expression now meriting protection from the deliberative speech the First Amendment was designed to protect (iii). Given this situation, the authors ask, “can the high values of free expression be squared with the dominant character of mass com munication in our popular culture?” (vi).

 

Collins and Skover’s answer to this question is set out over the course of the book’s three main sections. In the first, they describe what they take to be the general problem created by contemporary First Amendment interpretation, while in the other two they look at the specific issues involved in determining the constitutional status of commercial speech and pornography.

 

In the first section, the authors describe the defining problem of First Amendment interpretation as a “paratrooper’s paradox.” The image of the paratrooper is meant to convey the notion of one parachuting “into a territory hostile to old notions of free speech” (2). And the “paratrooper’s paradox” consists in the difficulty of reconciling a provision created to protect discursive speech from government tyranny with a culture accustomed to invoking that protection for even the most trivial forms of expression.

 

The second section is devoted to an examination of the constitutional status of commercial speech. The argument is that modern, image-based advertisers demand constitutional protection by claiming association with the information-based advertising ch aracteristic of a previous era (84). And yet, the authors hold, it is just such image-based advertising that, far from furthering the original goals of the First Amendment, is threatening to turn “America’s marketplace of ideas . . . [into] a junkyard of commodity ideology” (64).

 

In the third section, the authors examine the debate over whether or not full constitutional protections should apply to expression with an exclusively, or almost exclusively, sexual content. Collins and Skover choose pornography not only as a First Amendment test case, but also as the symbolic epitome of a debased culture of expression. To this end, they construct a fantasy anti-utopia they call “Pornutopia,” which is presented as the logical culmination of the intersection of commercialism, the el ectronic mass media, and indiscriminate First Amendment protection. Although the authors point out that such a state “is not quite America as we now know it” (117, emphasis in the original), they wish to offer a hypothetical object lesson i n what happens when expressive freedoms create an atmosphere in which discourse is degraded, electronic technologies are put at the service of profit and pleasure (130), and “private passion overrides public reason as the key rationale for constitu tional protection of expression” (127, emphasis in the original).

 

What the authors wish to establish overall is that in a mass culture saturated with television and advertising, the effective exercise of First Amendment rights is threatened more by what they call the “Huxleyan” scenario than by an “Orwellian” scenar io. While the Orwellian scenario is the familiar one of State suppression of speech,the Huxleyan scenario involves the relatively novel danger of the trivialization of (serious) speech through a “tyranny of pleasure” (5). Though not discounting the pote ntial danger to free expression posed by State intervention, the authors assert that within the context of contemporary First Amendment culture, “the Orwellian evil is not likely to pose a clear and present danger to traditional First Amendment values” (2 1).

 

For Collins and Skover, the Orwellian-Huxleyan dichotomy is the key to understanding the current debate over First Amendment protections (29), and, they note, this dichotomy does not admit neat solutions along traditional ideological lines (22). In o rder to show this, the authors outline three potential scenarios in which the First Amendment and contemporary reality might be made to square (22-28). These are the Classical, the Modern, and the Reformist. In the Classical scenario, various forms of e xpression may be regulated in the interests of protecting deliberative discourse. In the Modernist scenario, fears of State repression of expression — the Orwellian problem — lead to a laissez-faire approach in which all forms of expression are protect ed. The Reformist scenario is a sort of compromise attempt to provide the greatest latitude for expression while still promoting deliberative values. Which do they prefer?

 

Given the logic of their argument, and their evident distaste for consumer culture and commercial speech, one would expect them to declare that discursive expression alone is deserving of protection, and that either the Classical or Reformist position would set things right. But they do not. Instead, they assert that if we wish to preserve a culture of expression in which Orwellian dangers are minimized, then neither of these two positions will work. Attempting to put either into force would result in a situation they describe as destroying the First Amendment in order to save it (168) — that is, imposing potentially tyrannical restrictions on expression in order to promote only the “high-value” deliberative discourse appropriate to the serious di scussion of weighty issues. At the same time, though, they appear ambivalent toward the Modern position which, while significantly expanding the scope of First Amendment protection, has brought about the “death of discourse.”

 

Rather than choosing from among these three alternatives, Collins and Skover call for a “bottom-up,” “cultural approach” (iv) that would recognize that First Amendment principles are as much a function of what people actually do with expression as the y are a function of what elites say those principles should be (177). Adopting the cultural approach means rejecting what they call the “deliberate lie”: that protecting trivial expression will foster deliberation and rational discourse (169). They conc lude that “once we confront the reality of First Amendment hypocrisy, we will no longer wish to perpetuate it” (177).

 

II

 

Although Collins and Skover call for a bottom-up analysis that would by necessity be rooted in the actual expressive habits and inclinations of mass culture, they clearly display a distrust of certain aspects of that culture. In this respect their bo ok continues a well-established tradition, as an overview of postwar critiques of mass culture readily reveals (e.g. Bulik; Jay, chapter 6). In their alarm over mass culture’s threat to critical thinking one hears echoes of Fromm (Fromm 277); in their ac cusation that advertising debases language and stunts thought, one hears echoes of Marcuse (Marcuse 95). And like that of some of these earlier critics of mass culture, Collins and Skover’s perspective is informed, though by no means wholly determined, b y a mandarin outlook. Such an outlook is made explicit when they state that “if the Philistines have invaded America’s culture, it is not because television forced open the gates of the popular mind. Rather . . . it has everything to do with the nature of popular democracy” (18).

 

But although they take the mandarin position in regard to the content of contemporary media culture, their cultural approach allows them to take a more sympathetic position on the forms associated with that culture, some of which they wish to incorpor ate into their work. In an attempt to recreate in a print medium some of the features of a computer environment, the authors punctuate their text with icons, table windows, and dialogue boxes; citations are to popular songs as well as to the more traditi onal books and articles. In an afterword about the book, the authors even claim that the book is “interactive and multi-media” — but by interactive they simply mean that they intend the reader to attempt to develop his or her own answers to the problems they pose. (It would not be too far off the mark, in fact, to see the entire book as a full-length exercise in devil’s advocacy.) The multi-media aspect is a bit more complicated. Though it mostly consists in the citations to non-print sources, it inc ludes the construction of “virtual dialogues” at the end of each of the book’s three sections. What the authors have done is to quote letters they solicited from or conference discussions they held with their colleagues, and assemble them to appear as if they have been transcribed from a real-time discussion involving all the participants. The effect is reminiscent of the digitally manipulated images one frequently runs across in cyberspace — convincing records of events that never actually took place.

 

The authors’ borrowings from the culture(s) at large are not limited to these cyber-conventions, however. For they adopt something of the hyperbolic tone of commercial culture as well. In fact it is in this atmosphere of hyperbole that the book’s ma in weakness lies. Partly this is the result of the authors’ predeliction for sweeping generalizations, which frequently are asserted rather than argued. In other instances, available evidence bearing on a claim may be treated selectively. In making cla ims for the cognitive and behavioral effects of television, for example, the authors admit that studies attempting to establish just such effects are “indeterminate” (19); their response is to dismiss these studies and appeal instead to a series of hypoth etical assertions that they claim are supported by “ample experiential evidence” (19), none of which is given.

 

In fact, the book’s hyperbole threatens to cross over into jeremiad. For although Collins and Skover explicitly disavow adherence to a “hell-in-a-handbasket” viewpoint, their rhetoric frequently creates the opposite impression. During a virtual dial ogue in which they deny precisely this charge, they remind their critic that “the commercial culture appears low only from the lofty place of traditional First Amendment values. In one important sense, low or lofty is of no moment to us” (106). Perhaps not, but they spend much of the book describing a crisis in which the low threatens to overwhelm the lofty. They speak of an “electronic commonwealth [that] belittles the American mind by degrading discourse” (15); they entitle one section of their analy sis “The Decline of Citizen Democracy and the Rise of Consumer Democracy” (77); they predict that, should entertainment culture continue in its current course, “deliberative discourse dies and is reincarnated as image-driven onanism” (117); and they warn of the “high ideals of Madisonian discourse” being “invoked to protect the low practices of mass communication” (176-7). The authors’ rhetoric of decline recalls the kind of critique Nicholas Zurbrugg has characterized as consisting in a reductive, “apoc alyptic fallacy” (Zurbrugg 5). Drawing on the work of John Cage, Zurbrugg shows that the postmodern situation need not be interpreted apocalyptically, that one can find in postmodern technologies of communication and reproduction the potential for new an d fruitful modes of representation and conceptualization (8-9). Though Zurbrugg perhaps carries his optimism too far, he is surely right to reject the posture of apocalyptic hand-wringing. And indeed, when pressed, Collins and Skover admit the justice o f such a critique (e.g., 19). The trouble is that, having made this concession, they immediately return to their rhetoric of catastrophic decline.

 

Indeed, the author’s reliance on the rhetoric of decline threatens to undermine their conclusion. For in the end it is difficult to reconcile their denunciation of contemporary culture as a “debauched dystopia” (177) with their hope that a cultural a pproach to First Amendment rights will have a salutary effect on the exercise of those rights. Confronting and refuting expressive hypocrisy calls for a particularly active intellectual engagement; but it is exactly this, they have been arguing, that has been all but washed away in flood of entertainment-induced passivity. Thus it would seem we can either accept at face value their description of the utter degradation of contemporary expression, or we can accept the prescriptive program of unmasking imp licit in their cultural approach — but not both, since the former would seem to preclude the latter.

 

III

 

It may be best to see this book as an elaborate thought experiment designed to illuminate a real problem but worked out through various hypothetical conditions and extreme or hyperbolic gambits (the first of which is the “paratrooper’s paradox” itself ).¹ Even if we reject the terms of Collins and Skover’s analysis, we may agree that they have identified a problem of real moment in American culture — the problem of effectively maintaining a First Amendment whose interpretation has long been intractably bifurcated.

 

The bifurcation in First Amendment interpretation consists in the distinction between high-value speech, which is deemed worthy of full protection, and low-value speech, which is not. Speech with political intent or content is uncontroversially consi dered high-value speech, even if the attribution of political intent and content may in particular cases be controversial. Other types of speech — commercial speech, for example — are considered low-value, and historically have not been accorded full F irst Amendment protections. This bifurcation of expression on the basis of political intent and content is a function of Madisonian standards. What happens, though, when Madisonian standards are superseded in a broadened interpretation of First Amendmen t protection?

 

The question is not idle, since it might be argued that the Madisonian standard has largely been replaced in actual practice by the standard of self-realization. The principle of self-realization, which holds that individuals should be allowed to cul tivate themselves in order to attain a state of total personhood (however defined), would expand First Amendment protections on the assumption that allowing the broadest possible scope of expression will promote the democratic goal of allowing the greates t number of people to realize themselves. And in fact this principle can be seen to be at least implicit in First Amendment interpretation since the 1950’s, particularly as embodied in the opinions of Supreme Court Justices William O. Douglas and Hugo Bl ack. As Cass Sunstein shows, Douglas and Black did much to push First Amendment intepretation toward an “absolutist” position (Sunstein 4-7) compatible with distributing protection on the grounds of self-realization.

 

But such grounds are not always self-evident. Collins and Skover illustrate this in a virtual dialogue on the problem of determining the status of sexually-explicit expression (154-9). Determining high-value expression (in this case, art) from low-v alue expression (in this case, obscenity) is in and of itself difficult — internal or content-based standards, for instance, have a tendency to be murky and often seemingly arbitrary. But as the authors and their virtual debate partners show, it is also true that the application of the self-realization standard — i.e., that a given work is not obscene (that it is art and therefore has redeeming value) because it contributes to self-realization and thus furthers democratic principles — is itself highly elastic and perhaps ultimately no less arbitrary than the evaluation of the work’s internal features.

 

What strikes the authors as noteworthy is that, even when the self-realization standard is used, there may still be a discrepancy between the ideals invoked by defenders of freer free expression, and the value of the expression thus protected. The au thors explain this discrepancy by maintaining that despite the explicit invocation of the self-realization principle (when in fact it is explicitly invoked), the de facto principle behind much current extension of First Amendment protection is that of sel f-gratification. They conclude that defenders of the modern First Amendment have found themselves having to “cloak the self-gratification principle in the garb of something more ennobling” (43).

 

It is this that is behind the authors’ prescription that we become more honest in acknowledging the true motivations behind the current distribution of First Amendment protection. Such honesty would, presumably, go far toward ending what the authors see as the hypocrisy of those invoking the principle of self-realization in order to justify expression that is in fact geared toward self-gratification.

 

Truly taking the “cultural approach” seriously, it seems to me, would entail going further and recognizing that the distinction between self-realization and self-gratification is itself an unsteady one. Much like the distinction between “true” needs and those that are, to paraphrase Fred Dretske’s expression, cognitively derived desires (Dretske 128-9), the distinction between self-realization and self-gratification may simply be the distinction between two points at different locations on a spectrum .² If this is so, then it may be that the most honest approach would be to acknowledge that self-gratification may indeed be a contributing factor toward self-realization. Would this bring on the apocalypse? Some no doubt will think so. But it very well may be that encouraging the greatest range of deliberation means tolerating a corresponding diversity in the relative values of expression produced.

Notes

 

1. Two assumptions seem to be required to accept the “paratrooper’s paradox.” One must first assume an absolutist interpretation of the First Amendment in which “mass advertising’s pap . . . [is elevated] to the level of fundamental discourse” (113), and then assume that any situation in which this is not the case represents intolerably tyrannical regulation. The first assumption does not describe an actual situation — as evidenced by, e.g., the prohibition of televisio n advertising for hard liquor and cigarettes — and the second does not seem inevitable.

 

2. It is worth recalling the rationale behind the 1952 Supreme Court decision extending full protections to motion pictures. As Justice Tom Clark wrote, “The line between . . . informing and entertaining is . . . elusive ” (De Grazia 619).

 

Works Cited

 

• Bulik, LouAnne. Mass Culture Criticism and Dissent. Bern: Peter Lang, 1993.
• De Grazia, Edward. Girls Lean Back Everywhere: The Law of Obscenity and the Assault on Genius. New York: Random House, 1992.
• Dretske, Fred. Explaining Behavior: Reasons in a World of Causes. Cambridge: MIT, 1988.
• Fromm, Erich. Escape from Freedom. New York: Avon, 1969.
• Jay, Martin. The Dialectical Imagination: A History of the Frankfurt School and the Institute of Social Research, 1923-1950. Boston: Little Brown, 1973.
• Marcuse, Herbert. One Dimensional Man. Boston: Beacon, 1964.
• Sunstein, Cass. Democracy and the Problem of Free Speech. New York: The Free Press, 1995.
• Zurbrugg, Nicholas. The Parameters of Postmodernism. Carbondale: Southern Illinois UP, 1993.