San Diego Law Review

Document Type



This article puts in a broader legal and cultural context and critically evaluates Justice Scalia's reluctance to distinguish politics from entertainment or, more precisely, political speech from entertainment speech. Some may think of Justice Scalia's reluctance as the embodiment of judicial modesty or realistic practical wisdom. Others may think of it as an unnecessary expression of relativism or subjectivism that is ominous in its implications. Either way, whether we can appropriately distinguish between entertainment speech and political speech, and then apply appropriately different free speech standards in each case, says much about our status and priorities as a culture. Placing pure nonpolitical entertainment or amusement at the very core of the Free Speech Clause should certainly be controversial. As it turns out, if we decide that most or all entertainment speech is indistinguishable from political speech, we must then realistically expect other categories of speech to be treated as practically indistinguishable from political speech as well. And all of this may well be inconsistent with our scheme of broadly liberal democratic values.

This article first briefly reviews some of the related entertainment speech case law. Once this judicial background is in place, the idea of a culture that is thought to be "late stage," in decline, or decadent is then taken up as usefully as possible. An account of the idea of the uncivilized or barbaric, as set off against the idea of civilization, is then briefly referred to, drawing upon the work of historians, philosophers, and cultural critics. The conclusion recognizes that even clear cultural tendencies, trends, biases, or patterns cannot reliably explain individual cases such as Brown. The conclusion instead seeks to bring all of the above strands together and provide a broad vantage point and perspective for critiquing the merits of Justice Scalia's crucial logic in Brown. The conclusion offers implications, however, that extend far beyond the context of merely the Brown decision itself.