67d Public Discourse v.Gossip 1000

Public Discoursev.Gossip

Richard Weisberg
Walter Floersheimer Professor of Constitutional Law

Editor's note: Professor Weisberg won a Guggenheim Foundation fellowship last spring for a study of the privatization of public discourse. He first published this essay in somewhat different form in The Hamptons Shorts.

As with so many other cycles in our culture, gossip spins just under serious public conversation, waiting to infiltrate and overwhelm the urge Americans have to discuss important issues. Like censorship over freedom, zealotry over skepticism, prudishness over excess, so loose tongues and prurience periodically gain ascendance over sober analysis of global and domestic policy. Right now, we are tumbling through a cycle of gossip.

Test this out the next time you dine with friends: After they've been fully updated on the kids, the resumes, and the summer houses, what follows on the evening's agenda? Who among us has not wasted the precious little conversational time devoted to less personal matters by discussing Paula, Monica, and Bill; Hillary on Starr, instead of on health care; or the late Chairman of the Board and how he did it his way?

The current gossip cycle started with Gary Hart. He dared the media to follow him into the private corners of his life. They did so. Hart's arrogance buried both his presidential prospects and any discussion of what might have been a series of excellent social programs.

Before Hart, we rarely dabbled in the private lives of our public officials. We extended our leaders the courtesy of a private space. We cared more about cold war than hot gossip. Today, the real threat that nuclear warheads in South Asia may be pointed towards, say, the Mideast bothers only "stuffed shirts" like Daniel Patrick Moynihan. The rest of us long ago O-D'd on nuclear threats; we need our daily dose of Monica. Scandal is fascinating, yet familiar. We may feel uncomfortable discussing the latest tax-and-spend issues or foreign crisis. When it comes to sex, we're all quick to claim expertise.

The photo of Gary Hart and a blonde on a yacht was like a roadside poster announcing Liz Taylor's next movie or a television ad pitching her perfume. It was part of a comfortable world where we felt at once involved and distanced, expert and innocent. The young women in the boat really explained the guy with all those political ideas that were (literally) far more difficult to grasp. He was just like us, at long last human, with the same desires and weaknesses.

From that moment on, we have required of our political leaders that they be human, all too human. Like our celebrity class, they inhabit a realm of our creation. They can be larger than life, like Ronald Reagan, but only if their celluloid skills reduce complexity to square-jawed inanity. FDR, had he served in the last decade of the 20th century, would have been sharply reduced and drastically less effective.

Social Security is a problem,
but I love getting gossip
from the Drudge report.

Gossip about non-plastic public leaders can be destructive of public decision-making, which requires from ordinary citizens some degree of trust and a high level of participation. And it also degrades gossip itself as a genre. Our political and our wider culture have been enriched by imaginative forms of gossip, from Aristophanes to the Goncourt Brothers and on to J 1000 oan Rivers and even Larry Flynt, whom the Supreme Court laudably protected when his ad parody of the pompous Jerry Falwell led to litigation. But the kind of gossip that serves as a check upon power seems debased in this recent cycle of prurience, as though we had committed ourselves to daily whisperings that we would not tolerate about our neighbors at the backyard fence.

In all of this, as with the Gary Hart incident, the media is effect, not cause. It is much too easy to blame them for pandering to our basic instincts, even if it is perfectly true to say that they dish out more about the President's women than we probably desire. Still, they would respond to us if we let them know forcefully that we wanted to know about how the Soviet Union fell, not the latest twist of the Lewinsky affair. Instead of protesting their excess, we display our frustrations by flicking off the TV or turning quickly to the inside pages of the newspaper, where world (and not private) affairs are reported.

Precisely opposed to what Jefferson and the other Framers had in mind for us, we have decided that we have no voice, no influence on the public world around us. Rendered passive by our fascination with an increasingly opinionated celebrity class, we have become consumers rather than producers of opinions. Only when it comes to sex do we feel equally expert-or equally ignorant. Only about the private lives of others do we muster the energy to inquire and to judge.

However little we have actually progressed in this most intimate of realms, sex does seem to define the diurnal project of our planet. If the explosion of gossip we get at night fails to sate us, the endless "confessionals" of the daytime shows will titillate us on the morrow. With the help of Sally Jessy Raphael and Jerry Springer, private people by the hundreds will blazon forth their own weird stories of excess and eccentricity. Then, Larry King live will lead the more sophisticated creatures of the night right back to the rocks under which lurk the sexual sins of those we have elected to high office.

Strangely, the law must take some responsibility for the current cycle of sexual curiosity. The dull and sober deliberations of judges may seem to have little in common with sex. But think about it. On the most obvious level, Judge Kenneth Starr drives our incessant gossip about the President. Eager to expand and ennoble his mission, Starr recently has been linking his investigation to a wider crusade to bring truth and justice to the law more generally. He likes to cite Atticus Finch and other positive literary models of idealistic lawyers. But the more storied precursor for Starr's investigation is John Danforth, the Salem judge who let ego exceed reason during the witchhunts, and whom Arthur Miller, evoking Senator McCarthy, so brilliantly represents in The Crucible.

The law has brought us to this pass in two less obvious ways as well. First, "real-time" gavel-to-gavel coverage of celebrity trials has made law into a form of entertainment. Coupled with Judge Judy and sometime movie critic Ed Koch, trials compete with Geraldo and Jenny Jones for the afternoon TV audience. People now see law less as a system of aspirations structuring our civic behavior than as a celebrity-filled entertainment medium.

Second, several renowned Supreme Court libel decisions have contributed to the elevation of a celebrity class and the protection of trivial speech about them and our public officials. Most in the liberal legal community, including me, applauded these decisions when they first appeared, but time has taught us their weaknesses. Perhaps the Justices will reconsider them and seek again the inspiration of the brilliant decision from which they ironically arose, New York Times v. Sullivan. In that 1964 case, the Court liberated speech about our leaders but closely linked that freedom to our responsibility to discuss important political or cultural issues. The idea was already at the core of the First Amendment: Eliminate governmental checks on zealous and participatory c 1000 itizens discussing the central matters of the day.

I hear that Chelsea
hasn't spoken to him in

Unfortunately, the Court digressed rapidly when, in cases involving public figures (but not public officials), the justices saw an equal need to expand speech. These decisions helped lower the First Amendment to the baleful level of supporting speech about celebrities and diminishing it about the central issues of American governance. In Gertz v. Robert Welch (1974), the Court drifted from the central lesson of Times v. Sullivan by dividing us into two groups: "public" and "private" people.  Instead of adhering to the time-honored notion that all speech about public issues matters, Gertz reduced the importance of even such utterances if they happen to conflict with the reputational interests of so-called private figures. The holding actually created an incentive for us to remain private, to desist from activities that might make it harder for us to sue if we felt our good names had been defamed. Thus, while ostensibly adhering to the holding in The New York Times, the case disastrously overturned the earlier decision's model for public discussion and debate by making the issue the status of the person libeled instead of the importance of the subject matter discussed.

The lead opinion in Gertz was authored by the recently deceased Justice Louis Powell. This "courtly gentleman" deserves some of the fault for bringing us to the point of discussing lipstick and stained dresses instead of the public issues he surely preferred. By dividing us into classes of "important" people and merely "private" individuals, Justice Powell unwittingly encouraged the passivity felt by many ordinary Americans today in the face of the complex issues that need our attention.

"Public" people get to opine about everything and presumably are themselves fitting subjects for conversation. Their ranks are filled by career types not necessarily revered in earlier generations: journalists, pundits, pollsters, cue-card readers. They also consist of people we've always adored but upon whom we now bestow the additional titles of shaman and opinion-maker, as though being a singer or sports hero naturally brings with it a larger public wisdom.

Meanwhile, the private person is supposed to be quiet and listen, shorn of the duty to be vigilant and active and permitted a voice only in the arenas of brutal, personal "honesty." These days private individuals seem to feel comfortable discussing only private matters. Diverted now by the sex life of their leaders, or to their own endless confessions on daytime television, or to useless obsessions with "celebrities," ordinary folks have lost the way to self-government.

Although our birthright of full participation in the political debates of the day has been trivialized, private individuals are at least (on this model) presumed to be totally, almost grotesquely truthful. Such is not the expectation we have of our public officials. They are presumed to be dishonest, venal, and quite possibly corrupt. The Supreme Court has recognized that the higher the volume of speech produced about such figures, the greater the chance that truth will emerge. This is excellent doctrine, of course, but the irony of the Court's decisions is that private people now run risks if they are too vocal about our leaders and the leading issues of our time. Under the reasoning of the Gertz decision, you can be transformed into a public figure and hence surrender some of your right to protect your good name just by inserting yourself actively into the public discourse. All this augurs poorly for the broad-based democratic discussions envisioned by the Framers.

The sole link b 792 etween the two groups occurs at the moment of confession. If a public person self-flagellates, all is forgiven. The veil of presumed falsehood is lifted. Much of our political discourse is devoted to the achievement of this moment. No matter how inspiring the rhetoric of our leaders, it is only then that it becomes credible. Our main aim, assisted by the media or by Judge Starr, has been to uncover the flaw that humanizes the leader, or far better-to hear him simply "fess up."

Uncovering the tragic flaws of the high and mighty used to be the special skill of playwrights. Displacing that task onto the public and its servants in the media or the courts takes a terrible toll on public discourse, which should be devoted to important matters of civic policy. (It also strips the theater of a key function, leaving our culture as well as our politics all the poorer.)

But hey, you may be thinking, maybe things are not all that bad. Perhaps this critique has conveniently forgotten that most of us are happy right now. Polls tell us Americans do indeed have strong views about key issues. They may not run deep, but they are strong. However, it seems we are less flexible than we used to be, less open to the perspective of others (unless they're celebrities).

Of course, not everybody in the country is doing that well. Not everyone has the latitude and the leisure to indulge in political gossip. Our lack of attention for their plight, our distaste for serious and probing discussion, our passivity in permitting others to lead the public conversation for us-these are all outgrowths of our current predicament. But would we want it any other way? Let's leave to the pundits or the special interest groups any talk of affirmative action, or global nuclear strategy, or creeping censorship, or national health care. Much more delicious would be a personal confession about Viagra, or the latest on Monica. 0