Popular Appetites vs. Public Interest

The democratization of discourse is, of course, connected in important ways with the notion of mass communication. But what if technological advances could "demassify" the predominant form of communication in our culture? For example, the invention of a "telecomputer" system, ¹²³ a digitally­switched fiber optic computer network, heralds a communications revolution. The potential of such technologies is so powerful that, in the view of George Gilder of the Discovery Institute, "[t]he age of television, for all intents and purposes, [is] over." ¹²⁴ Unlike today's broadcasting system, he adds, the new technology promises an untold number of personalized electronic possibilities, ranging from interactive audio­video communication to a plethora of program selections. ¹²⁵ With utopian expectations, Gilder believes that the telecomputer "may even reverse the effects of the television age .... Rather than exalting mass culture, the telecomputer will enhance individualism. Rather than cultivating passivity, the telecomputer will promote creativity." ¹²⁶

From Gilder's perspective, Twitchell's Carnival is closing down. The telecomputer, we are assured, will arrest television's "endless flow of minor titillations." ¹²⁷ Yet although Twitchell may be criticized for failing to take the new communications revolution seriously, the Carnival may not be leaving town any time soon. Just as Twitchell may have moved too hastily, so Gilder underestimates the economic and socio­psychological forces that interact with the new technology and mitigate its potential force. W. Russell Neuman, director of communications research at the Massachusetts Institute of Technology's Media Lab, conducted a 5­year study to determine whether technological advancements such as those trumpeted by Gilder will result in a fragmentation or "demassification" of television's audiences. ¹²⁸ "The upshot? While the technology of mass communication will change dramatically," Neuman maintains, "the mass psychology and commercial economics of public communication will not." ¹²⁹ More specifically, the viewers' "deeply ingrained habits of passive, half­attentive media use" ¹³⁰ and the industries' "[e]conomies of scale push[ing] in the direction of common­ denominator, one­way mass communications" ¹³¹ will determine the future shape and direction of the mass audience. Neuman concludes that "the most prominent result of an expanded communications capacity will be intensified competition for mass­audience tastes." ¹³² This ironic result practically assures that Gilder's utopia of tomorrow will yield to Twitchell's "utopia" of today.

As long as the mass audience survives in the Carnival, a cultural approach to the First Amendment may redefine the character of democratic regulation of expression. First Amendment doctrine traditionally equates the public interest with lawmaking by representative government. But as the notion of democracy assumes a new meaning in the popular culture, the way in which we identify the public interest should also change. To be consistent, the public interest may no longer be linked solely to representative majoritarianism, but may also be related to the majoritarianism of popular appetites as expressed in the Carnival. A jurist employing a cultural approach, for example, might reject the nonobscene­but­indecent speech doctrine and reverse rulings such as Barnes v. Glen Theatre, Inc. ¹³³ and City of Renton v. Playtime Theatres, Inc. ¹³⁴ When the Carnival's low floor can become the culture's high ceiling, who but the anti­democratic few would deny the people their Dworkinian rights to "moral responsibility" ¹³⁵ -­ rights to determine the boundary of their own pleasures?

Were a judge to invoke a cultural approach, she would enlist the First Amendment to intervene between the popular culture and majority rule. This seems puzzling. If laws mirrored such a culture, there would be no need for First Amendment intervention since no expression would be suppressed. Why, after all, wouldn't laws always reflect the values of the Carnival? The answer can be simply put: The "anarchistic" quality of the Carnival is fundamentally at war with the notion of a government of laws. The very character of the Carnival is to push all boundaries, including the fixed lines of the law. To the extent that law is oriented to the old ways, it will be out of sync with the new ways of the popular culture. The Carnival is forever young. Our judge should likewise be prepared to keep the new­age First Amendment forever young.