CULTURE CRITICS, MONGERS, AND JAMMERS: THE NEW­AGE FIRST AMENDMENT

Vulgarity is an inadequate conception of the art of living.
­Mandell Creighton ⁹³

It is not enough to cater to the nation's whims ­- you must also serve the nation's needs.
­Newton Minnow ⁹⁴

Western culture, as idealized in our vision of ancient Greece, valued free speech as a means to some telos, some greater end. ⁹⁵ For Aristotle, speech was not simply expression for its own sake, but rather, was discourse in the service of the civic good, or agathon. ⁹⁶ Expression, properly understood, was essential to paideia, the shaping of character. ⁹⁷ This, of course, is all Greek to the Carnival culture. From an idealized perspective, the First Amendment's negative command of "no law ..." keeps government at bay to realize some noble objective, whether political or aesthetic. Although jurists and commentators are understandably reluctant to admit it, the Carnival values the negative command to further its own conception of the First Amendment as a way of life. This is a conception of a "nation committed to an open culture," ⁹⁸ where the high may crumble into the low, fact may commingle with fantasy, commerce may govern communication, and self­realization may succumb to self­gratification. It is a conception cherished by the culture mongers, who throw Twitchell's "veritable catalogue of vulgarity" ⁹⁹ in the faces of culture critics such as Mandell Creighton or Newton Minnow. It is a conception for which popular television is the touchstone and "'the test of the modern world."' ¹⁰⁰

James Twitchell's thoroughly researched, powerfully written, and utterly provocative book is a delightful text for a cultural approach to the First Amendment. Its depiction of popular culture informs our sketch of the "new­ age" First Amendment. ¹⁰¹ What follows is not some normative or instrumental theory, but rather an approach to the 1791 guarantee. Like a corrective lens, this approach sharpens our vision of the traditional First Amendment and radically transforms our sense of the real­world context in which it operates. Essentially, all that is familiar in free speech jurisprudence­concepts such as reasoned discourse, the democratic function of expression, the character of the public interest, and the notion of dissent­ takes on a new reality, a virtual reality. ¹⁰²