The failure of our First Amendment success: Dealing with the death of discourse
By Robert Jensen
Published in Dissident Voice · February, 2006
a review of Ronald K.L. Collins and David M. Skover, The Death of Discourse, 2nd
ed. (Durham, NC: Carolina Academic Press, 2005).
There is no shortage of books these days analyzing what contemporary U.S.
society gets wrong: Illegal wars of aggression, a cavalier attitude toward
potential ecological collapse, narrow-minded religious fundamentalism, widening
economic inequality, and lingering racism, sexism, and homophobia. Look too
closely at this society, beyond the self-congratulatory triumphalism, and it’s
not such a pretty picture.
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
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 key question in mass media, law,
and philosophy that we can no longer afford to ignore: Has this system of
freedom of expression, when combined with a predatory capitalism, made it more
difficult to maintain a healthy and sustainable culture?
As they phrase the questions: “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?”
My answers: An obscenely affluent way of life rooted in narrow conceptions of
human flourishing; freedom defined in narrow terms by the pathological
individualism of contemporary capitalism; and a democracy that is broad in
theory but so narrow in practice that the majority of the population no longer
takes electoral politics seriously.
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
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
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
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.
Though my own research and political activism dovetails with Collins’ and
Skover’s thesis, 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
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
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
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.