We've heard good arguments about gun control and its suppression. We've also heard good ones about mental illness and its under-funded treatment. And we've heard good arguments about the armed alt-right. But almost every time over the past 20 years after a gruesome massacre of civilians — at Columbine, Virginia Tech, Sandy Hook, Charleston, Orlando, and now Las Vegas — I find myself recalling a TV movie I happened to catch one evening in 1994 — four years before Columbine — when I turned on my set to find the actor Richard Thomas stalking a corporate office building, an arsenal of assault weapons on his back.
Every time I recall that movie, I wonder why we can't see that the interpretations of the Second Amendment that enable such mayhem have something to do with bad interpretations of the First Amendment that treat gratuitously violent entertainment and advertising as "speech" we need to protect.
Like most Americans, I watch violence on TV willingly in documentaries, newscasts and dramas that draw us into unflinching moral engagement with human history and behavior. But I do tend to click the remote whenever the music and body language tell me I’m about to see bloodshed just for Nielsen ratings. That night in 1994, though, I lingered on “I Can Make You Love Me: The Stalking of Laura Black” with a clammy revulsion for 15 minutes as Thomas coolly blew away a dozen people, at the water cooler, on the phone. Bloody, writhing bodies everywhere.
The psychopathic eruption and bloodshed — based on a true story, of course — are the film’s only reason for being. Variety’s reviewer wrote that it combines “woman in jeopardy and mass-killer genres into a predictable and often gruesome concoction that has little to offer other than gratuitous violence.”
In other words, this isn’t drama. It doesn’t bring us artists’ art or activists’ political messages, however transgressive and threatening, all of which would and should be protected by the First Amendment. Instead, it’s proactively destroying the very preconditions of freedoms of inquiry and expression, not out of malevolence but out of a civically mindless, market-driven lust to boost profits by stimulating whatever is perverse and vulnerable in our body politic.
Why do we keep on pretending that we really can't tell the difference between up-front nihilism and free speech? What the Constitution rightly protects in free speech, a healthy civil society rightly modulates — but not if we license powerful, brilliantly effective engines to sicken civil society itself. If we really want to tackle destructive interpretations of the Second Amendment, we need to acknowledge that by treating corporations as “persons” whose speech rights the First Amendment was meant to protect, the Supreme Court, most conservatives and even ACLU liberals have wrongly demoted the kind of “speaker” the First was really meant to protect and empower — the flesh and blood citizen — in favor of "speech" as an abstraction that includes algorithmically driven signals purchased by the fiduciaries of shareholders.
These buyers are themselves money-making abstractions because they pay no attention to the content of the “speech” that’s making them money. I argue that it's not mainly malevolence, but mindlessness, that is fueling the slaughter. Contrary to what Mitt Romney claimed in his 2012 campaign, these media corporations are not “people, too,” and they’re certainly not democracy’s friends.
Like the real-life massacres, movies such as “I Can Make You Love Me” and mindlessly violent videos prove that, even after 9/11 and other terroristic acts from abroad, the greatest threat to our democratic freedoms of expression and inquiry isn't coming from Al Qaeda, ISIS, immigrants, or the alt-right. Nor is it (yet) coming from an overbearing federal government that some Americans always blame for everything.
Government does intrude upon and track us more than ever before, partly in response to terrorism. But the deepest danger to our freedoms isn't official censors. It’s corporate marketing sensors that determine which come-ons like “I Can Make You Love Me” will profit their investors most by stimulating gut instincts, not deliberative inclinations. All this groping, goosing, tracking, and indebting of us not as citizens but as impulse-driven consumers is trapping tens of millions of Americans like flies in a spider’s web of click-baited pick-pocketing machines.
At the same time, it’s “re-educating” us against democracy itself by deluging us with "violence without context and sex without attachment," as Senator Bill Bradley put it in 1995. Violent, semi-interactive video games prompt young viewers to join in clicking that contributes to the virtual mayhem on their screens. Then the games link the players to gun-sale ads.
For every occasional gamer like Adam Lanza (of Sandy Hook), who acts this out in real life, many are simply benumbed by the demoralizing depictions of society. Today, more Americans probably watch depictions of torture and mayhem impassively now than did so when I watched that TV movie 23 years ago.
The producers and the media corporations tell us piously that repetitive TV violence — 15 violent acts per prime-time hour on many networks, according to one study — has no measurable effect on behavior. But they tell their advertisers that the more often a message is repeated, the more it will influence behavior. That’s like tobacco company shills who used to claim there was no link between smoking and cancer.
Inspiring young citizens of a republic to think beyond immediate personal survival and to act on behalf of a greater good enhances self-interest itself. But it requires real work — in social movements and in civic and political institutions (churches, unions, public schools). Rampant market forces are devouring these, too, not least in higher education, which, drained of public support, hustles student “customers” into treating liberal education as a personal investment in a career, not as preparation for shared citizenship capable of facing challenges to politics and the human spirit.
What’s driving our entrapment in an “everyone for themself,” sauve qui peut society is this relentless, undeclared assault on reason and mutual respect, not only on our screens but in the casino-like financing, predatory lending and advertising and “entertainment,” that bypasses our brains and hearts on the way to our lower viscera and our wallets — and that has made a financer of casinos and predatory self-marketer our president.
This juggernaut has panicked and stampeded not just the campus “cry-bullies” whom "free market" shills like Greg Lukianoff of the Foundation for Individual Rights in Education and Jonathan Haidt, a founder of the Heterodox Academy, love to blame for responding to the mayhem censoriously. It’s also driving millions of others to arm themselves and to seek “safe spaces,” in gated communities and rigid codes of protection. It’s fine to criticize such responses, but not to orchestrate national campaigns to spotlight and condemn feckless 19-year-olds and not the producers, networks, and demagogues who feed on the damage.
We need more urgently than ever to cultivate public narratives that inspire democratic inclinations and habits by showing the young who they are as citizens with obligations to one another who can trust one another. We also do need to challenge interpretations of the First Amendment that protect the commercial strip-mining and perversion of civic narratives by these algorithmically driven engines.
We can't and shouldn't legislate great public narratives or censor bad ones. No one could have ordered J.K. Rowling to produce Harry Potter. But we can and should curb media violence that serves no social purpose other than to feed on public distress.
What about the “slippery slope” that leads from curbing one kind of speech to its curbing another? We’re already descending on another slippery slope from the cacophony of a free-for-all into an empty, violent free-for-none. We need to identify the “speakers” in violent video games, in degrading, misleading Big Pharma ads, and in other come-ons whose voices are only anonymous hirelings whose one-way messages aren't open to the persuasion and rebuttal that the First Amendment was meant to promote as well as protect.
Democracy dies when managers of anonymous, ever-shifting whorls of investors use their funds to buy huge megaphones while the rest of us get laryngitis from straining to be heard. (Recall that even Occupy Wall Street protestors were denied megaphones.)
Shortly after Sandy Hook, Hofstra University law professor Daniel J.H. Greenwood and I explained why we can curb such purchased, anonymous, unanswerable speech in an essay in The Atlantic. As the legal scholar Robert C. Post explained as early as 1990 in Dissent magazine and more recently in his book "Citizens Divided," although the Supreme Court has rightly interpreted the Constitution to protect the speech of citizens challenging and even offending communal norms, it has erred in protecting the “speakers” that equate money with speech to work overtime at destroying any possibility of an open democratic or republican playing field.
Post explains that the First Amendment was written to allow people of diverse backgrounds and convictions to join in productive deliberations by empowering them to challenge and contradict one another’s distinctive views. In other words, the legitimacy of what can be contested depends on the legitimacy of what is accepted: certain ground rules and standards of discourse that all agree to follow if they want to keep a republic.
Over-regulation would be destructive, stifling free markets as well as free speech. But markets that are no longer really free need to be saved from themselves, their “animal spirits” reined in by citizens who think and act politically, not just instrumentally and commercially. We can’t rein in perversely violent video games if their investors capture the regulators and degrade the popular sovereignty and virtues that markets themselves require.
We’re living through this destruction right now, at the hands of corporations that our bought-and-paid-for president and representatives and our addled Supreme Court have enabled to amass tremendous profits by any means they deem necessary. It’s time to reclaim our sovereignty over them and shed our subservience to them. Before there was even a Supreme Court, there was an American Revolution “in the hearts and minds of the people,” as John Adams put it. So now, too, again.
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