Under the Supreme Court's recent precedents, commercial speech is that which "does no more than propose a commercial transaction." In a society with so much fluidity of meaning, any hard definition seems somewhat arbitrary, or based on practicality or politics. How and when to decide if speech is economic or political or personal? How to decide when a fetus becomes a human being? What is a potential economic interest? What is a potential life? When should the state interfere on the basis of a potentiality?

"Mr. Hoeber agreed that they were not in an 'advertising format.' But he said it would be a mistake to limit the definition of commercial speech to advertising, because 'that line would leave out a lot of promotions and representations that consumers rely on.'
'It's not a perfect world,' Justice Antonin Scalia responded."

Oh, Really...

People are always trying to find or create what they consider a justifiable and at least explicable sense of things. 'Oh blessed rage for order...'
I sent off a copy of my post on law and language to Sam Heldman, and he responded with more than a little confusion, so I might as well use him, and his interests, as an explanation. And Zizka might even get the Warhol post he's been waitng for.

Sam is serious aficionado of hillbilly music, specifically in it's most rooted, unaffected and 'pure' form. 'Purity,' 'Integrity,' 'Truth,' are all buzzwords associated with such forms of folk culture. In another country it might be seen as all very volkisch, with sense of reactionary kitsch such words imply. But in America it doesn't work that way. Still, what does it mean to be an urban sophisticate with a taste for peasant culture? And what is it that tends to make people who are fans of such folkways be willing to speak of reservations about modern culture?
You can see where I'm going with this: cultural sophistication and an idea of simple truth are usually accused of being at odds, even by people with no historical connection to the work and whose educated sophistication is what allows them to grasp its value to begin with. 'A Mighty Wind' has a lot of fun with this. Sam linked approvingly to a piece in the Times by John Pareles, on the band White Stripes, which gives this description of an interest in such simplicity in popular music:

"The eternal promise of Back to Basics is that it will strip away the layers of self-consciousness and cleverness that get in the way of direct communication."
You have to pay for the article now but here it is. Pareles says the White Stripes fail, because they can't escape their ironic detachment. I guess I'll have to throw out my Sex Pistols tapes and Stones records. Once you've left the garden, you can't go back. This leaves us in an ambiguous situation that Americans live with without seeming to know that it exists. Europeans on the other hand take their alienation for granted.

I left off yesterday with a description of a work by Andy Warhol. I've mentioned him in the past partly because I know that his work in its 'insincerity' is something that people who are preoccupied with politics - again, in this country- tend to think of as cheaply ironic and cynical. I suppose at some point he, or his work, were all three, but not always and certainly his best work is not cheap (in any way.) I feel strange reminding people that not all art is made to make them feel happier. Sometimes it's meant to remind you that you've felt like shit for years, but give you the small comfort of feeling a little less alone. This is the knowledge every American teenager shares with every middle aged European, but strangely, not with American adults, except those who make a living thinking about such things. Until we learn to be aware of our own behavior, until we learn some measure of self reflection, This country will never be able to have a mature political debate. That Noam Chomsky's utopian positivism should be controversial within the left is something that still shocks me. He's the closest thing to a christian saint we have, and as such both a subject of worship and derision. What he's useless for and terrible at is politics. But that's still no excuse for Berman's anxious stupidity or Alterman's jealous rant.

People want to have their ideas rest on what they perceive as solid ground. The de facto basis of the modern world is economics. Where once wealth served a state or a church 'Economic man' is now the measure. Conservatives, using the old definition, -which still applies to the social conservative partners of the neocons- are opposed to economics being granted this designation. So am I, and I think so is Sam, and so is what I would consider the principled left. And this opposition is not by way of simple Marxist economic jargon, but also from a sense that there is something 'more' to life than greed or desire. What does 'MORE' mean?

What does it mean to say that something can be 'shallow' and that something else can have 'depth'? I'll make a small leap and say that depth and 'stability' go hand in glove. I go back again and again to Antonin Scalia. He values stability more than anything else. I imagine he might almost say with Hobbes that stability IS justice. This is why I have said that we should think beyond the law to his Catholicism to understand his interests. Plainsman at Sub Judice has called him a Catholic Formalist, which is perfect, except that from his position of authority Scalia allows himself to bend the rules. it's one of the benefits of defending a monarchist philosophy that the powerful have the authority to protect us from ourselves.

But my problem with liberals is that, like neocons, they defend the ideal of economic man. Popular culture, from Hollywood on down has a more nuanced view of the anxieties of modern life than your average liberal economist. I've come off as rude or dismissive to many who consider themselves intellectuals because I've made the mistake of assuming that they had some understanding of the awkwardness and anxiety that makes up the life of the modern bourgeoisie. I could have a better conversation with Madonna.

In this country mainstream intellectualism and Individualism are joined at the hip; yet the culture at large is chock full of images of lonliness and isolation. It seems sometimes as far as intellectual life is concerned that only those who flirt with academic nihilism are willing to agree with social conservatives and practically everyone else, including Madonna, in saying that something is very off. Conservatives fight against this in ways that are either politically reactionary or conflicted- by association with neocon free market philosophy, nihilists indulge themselves in formalist rhetoric, and everybody else just shrugs and goes on as best they can. The point of my last few posts has been to make a logical argument for the role of argument and debate -on their own- as a bearer of intellectual substance, and for the depth or profundity of such an esthetic, without any basis in ideal or absolute truth, and without relying on decostructivist gerrymandering. The notion of 'imperfect justice' is key to this. The choice to base an idea on imperfection, constructed from the principle of an imperfect justice, and NOT BY TACIT ASSUMPTION BUT BY AFFIRMATION, is a good definition of a democratic philosophy that is as solidly grounded as anything imagined by any idealistic fiction.

And about Warhol: think of him as a kinder gentler Antonin Scalia. The fact that the works weren't made by hand alone does not make them cynical. Think of the Double Elvis as a piece of fabric pretending to show the emotion on the face of a scared boy pretending to express the emotion on the face of a cowbow with a gun. You can't get farther away from integrity than that. But it's an image of an image of an image of a man alone, and nobody describes such lonliness better than Warhol. And that's depth isn't it?