The First Amendment is more than law. It is a way of life.

For two centuries, the First Amendment has served, at least in principle, as the bulwark of our system of free expression. Yet, only in a narrow, although important, sense is the First Amendment the province of law. Its symbolic and functional meaning extends well beyond what pinstripe­suited lawyers proclaim in courtrooms, beyond what black­robed judges pen in case reports, and certainly beyond what cardigan­sweatered professors pronounce in scholarly journals. ¹ James Madison's genius cannot be confined to the cramped quarters of legal doctrine or to the tidy categories of legal theory. To know the Amendment's vital meaning, one need do no more than breathe its air. We, the academy, have failed to sense this fact only because we are largely oblivious to today's popular culture and largely obsessed with yesterday's First Amendment doctrines.

Beyond its life in the law, the First Amendment is the discourse of our daily experience. To speak with uninhibited freedom, in the vernacular of the popular commercial culture, and in pursuit of that culture's raison d'etre, is to speak the language of the First Amendment. The truer referent point of the free speech guarantee is the unremarkable talk of popular culture rather than the remarkable discourse envisioned by constitutionalists. For this reason alone, we, the academy, need to reflect upon the culture of free expression and to reevaluate the jurisprudence of the First Amendment. Having done so, perhaps we may realize the Amendment's practical meaning and ask what, if any, relationship this meaning has to the conventional purposes assigned to the 1791 provision.

The lawyerly understanding of the First Amendment proceeds deductively, from the top down. In short, jurists and legal commentators impose the world of theory onto the world of practice. With this aim, they proudly drag out the dead: the likes of Socrates, Plato, Aristotle, Milton, Locke, Spinoza, Mill, Hume, Emerson, Whitman, Russell, and Meiklejohn, among others. ² Similarly, jurists and commentators parade a variety of elevated notions ranging from the attainment of truth ³ to moral responsibility ⁴ in order to justify the special status granted to speech in our democratic regime. ⁵ Who would not applaud this worthy tradition of aligning the noble purposes of the First Amendment with their noble counterparts in public expression? Who indeed?

It is said that for love of country, Niccolo Machiavelli "'pissed in many a snow."' ⁶ The great Florentine political philosopher expressed his love of country by calling for a realpolitik. His point: It is "more fitting to go directly to the effectual truth of the thing than to the imagination of it." ⁷ The First Amendment is in need of a similar love­a willingness to stain the white snow of pure principles in the name of our common experience. To do this we might develop a bottom­up approach to the First Amendment, an approach going directly to our mass communicative experiences rather than to imaginative theories. ⁸ Such an approach might represent a real awakening in First Amendment law, a new sort of Machiavellian Moment. ⁹