- The First Amendment in an Age of Electronic Reproduction
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.)
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...