Monroe Price

AIDS, The ‘Marketplace of Ideas’ … And Human Survival

VTR Date: January 13, 1990

Legal scholar Monroe Price discusses the search for identity in the AIDS era.


GUEST: Monroe Price
VTR: 1/13/1990


HEFFNER: I’m Richard Heffner, your host on The Open Mind. And I’m so darn pleased that the very presence of my guest today literally forces us at last to focus on what – beyond, of course, the first question of sheer physical survival – must be the crucial issue posed to us here at the very end of the 20th Century by the AIDS epidemic: The fate of traditional American concerns for individual freedom and essentially unfettered personal behavior in the face of an enormously threatening deadly disease that spreads largely as a consequence of individual choices, those relating to drug use and sexual practices.

Monroe Price, a leading legal scholar, is Dean of the Cardozo School of Law at Yeshiva University. Harvard University Press has just published his intriguing “Shattered Mirrors…Our Search for Identity in the AIDS Era”. And I want to ask Dean Price to expand upon his statement in this intriguing book that “What is at stake is the cherished, if perhaps outmoded, notion that the constitution protects the individual’s right to evaluate the pros and cons of behavior in an atmosphere that is free of government interference. If the AIDS crisis worsens”, he writes, “we may discover that we have lost faith in the ability of an unregulated marketplace to produce responsible attitudes and behavior; and, having no place else to turn, we may find ourselves relying more and more on the voice of government to articulate community values.” Will you choose that increasing reliance, Dean Price?

PRICE: Well, certainly I hope that we don’t have to turn to government, that we don’t have, increasingly, to rely on government, but what I think we’re finding in the AIDS crisis, and also outside the AIDS crisis, is that the traditional value givers in the society are slowly diffusing, disappearing, vanishing, really in some ways, in such a way that undermines our traditional view of what the role of government is in society.

HEFFNER: What do you mean?

PRICE: Well, I think about this in the 18th century, and say when we placed our faith in a system in which government, the federal government, would be precluded from interfering as much as possible in our lives we lived in a society rich in values; the family, the religious organizations, the church, a great puritan tradition in some ways, and some of these value givers, the family being probably the one that is most obvious to all of us, deteriorates. And what happens when that occurs? Where do we turn? Where does the society turn for the framework in which decisions should be made? And the question is will government step in, or will we require government to step in?

HEFFNER: This is almost an Achaean trans-valuation of values it seems to me. Is that a fair view?

PRICE: Well, I think that it’s problematic. That is to say, we really…one of the questions is what’s government? Government in some ways is a kind of escalation of our own values, so that to put a kind of gulf and say “here’s the government imposing values as opposed to our family, and our church, and our neighborhoods”, etc. is an odd thing because government is obviously something placed into power, somehow not some odd abstract factor. However, to some extent it is also true that government will sit there, in an institutional sense, and think about the security of the way we live, about…in this particular case, let me be more specific, government has to worry…or we are coming to government and saying, “please educate us in the way in which we should conduct ourselves so as to impede the spread of AIDS.” This is a very fundamental question about the way we conduct ourselves and in a previous time it’s not the government necessarily that would have been the first place to look to for this kind of advice.

HEFFNER: Well, you keep, as a good constitutional scholar, as a good First Amendment person, you keep saying you’re uneasy about this growing combination of ideas and the government…of changing ideas, of changing patterns of behavior, and governmental action. And yet you seem to l eave little doubt but that the traditional marketplace of ideas is not sufficiently attuned to the needs of the AIDS epidemic and as a consequence government will be there to do what the private sector doesn’t do.

PRICE: Well, let me focus on the marketplace of ideas for a second because I’ve just been thinking about how different in another way it is and this is another way it turns to government. Because of a peculiarity of the consumer economy, because of the way in which voices are heard, because of the intensity with which some voices speak as opposed to others, we have again a very different marketplace from the one that is traditionally perceived of when you think about the first Amendment, the Constitution, etc. We have a kind of nostalgia for a time when there were equal speakers, when the world was more like The Open Mind, where individuals state their views, they’re rebutted. There may be a stronger group and a weaker group but there are no overwhelming pushing voices in the society. In some ways this may itself be a kind of golden mythic age. Right now, in a certain sense, the forces that are compelling, that have intensity behind them, that have the most dollars behind them, let’s say are the marketplace products, not the marketplace of ideas, that shape our behavior in strange ways. I think of this in terms of patriotism, in terms of odd things like the flag, central images in the society. What are the central images that we think about that are forced upon our identities at given times? There are images that come to us, not from our education in our formal sense, our schools, but probably from our education in an advertising sense. They’re the automobile, they’re the other emblems of the society that we live in, not necessarily the patriotic emblems.

HEFFNER: It’s so interesting to me, though…go ahead, I’m interrupting you.

PRICE: No, no I’m trying to link all of these themes. But the reason…if you then look at this marketplace and say we’ve gone from an ideal marketplace of individual autonomous persons who somehow grope to a decision, and grope to a sense of values, to one in which there is this extraordinary force that has a sort of capital behind it in a way. You then begin to see that the marketplace may not produce the mix of ideas that, in a kind of abstract sense, in a kind of abstract democratic sense, we would like. And then, the notion is where do you go to change the mix? Where do you go to say there is something wrong with the kind of collection of ideas that are evolving from the marketplace? Our fundamental view of our marketplace of ideas is “let it function, truth will come out. It is wrong to interfere with the marketplace of ideas.” But if, and this is a peculiar aspect of the AIDS crisis, we look at this marketplace of ideas, a particular kind, and say “perhaps there’s something askew in terms of behavioral attitudes that has a public health twist to it”. Then the question is how do you alter that? To some extent we are altering it ourselves, but the threat is if we do not, what will the role of government be? So that’s how I get from one of these points to another.

HEFFNER: But wait a minute, wait a minute. When you say “from one point to another” it seems to me that you’re really getting from the basic thing that you want to say, which is that the concept of the free marketplace of ideas is really different now. It’s writ and must be understood differently now, from when we founded this republic. Walter Lippmann quotes John Milton, “Whoever knew truth put to the worse in a free and open encounter”, but we don’t have, as you’ve suggested, free and open encounters. Certainly not balanced ones in which the truth can come out. And you know AIDS, yes, terribly important subject…but it still seems to me that you’ve put your finger here on a question that we have failed to deal with in our times, on many, many, many different levels, in many, many different areas. And with all of the emphasis upon original meaning, original interpretation of the Constitution, you’ve said, in a few pages here in Shattered Mirrors, and in a few words in what you’ve just said, what most people don’t want to deal with: it’s a different ball game.

PRICE: Of course it’s a very interesting question about what we mean by original meaning. The point that I’m making is that you can’t look at meaning without context, so that people who say, “What is the original meaning? What is the meaning of the founders?” have to ask “What was the context in which the founders discovered themselves? What was the environment in which they were so bold as to say what the First Amendment says?

HEFFNER: And you’re saying that it was an environment in which there were other value generators upon which we could depend. The government wasn’t needed, but that the family was strong, and the community was strong. Now that they are no longer strong, we may have to revise our ideas about that government which governs least, governs best.

PRICE: Well I don’t want to…I certainly am wary about jumping to that conclusion, but I’m leading in that direction.

HEFFNER: Why? Why? You’re doing more than leading in that direction.

PRICE: It may be that what we have to do is restore other value producers in the society, or think about the way in which values are produced or, to take a very First Amendment view about this, talk about it, increase consciousness that this is the case so that we see the risks that are involved and try in some ways to cope with it.

HEFFNER: In terms of the risks, your concern is that we will not sufficiently deal, in a non-governmental way, with the threat of AIDS, is that correct?

PRICE: Well, certainly that is…it is more than that. I think that here we have a public health need and in some ways we never asked the question really what the relationship is between public health needs and speech in the society. We’ve asked it in many other contexts: war, national security, the rearing of children, etc. But here the question is if you need to influence behavior, on a public health matter, what is the role of government first of all in being speaker? And this itself is a very important point. We are asking the government to be a powerful speaker in the society that’s different from, and somewhat independent from, restricting other people’s speech. Both are implicated. But let me start with the government as speaker. We rarely, but sometimes, ask the government itself to establish a framework of values, or a framework of influencing behavior. Here we are doing so much more explicitly than we do in other contexts.

HEFFNER: Are you satisfied with that?

PRICE: Well I think that that is an easier question. We do it with public schools for example, although we’re very nervous about it. The whole system of public education, and to some extent the whole system of public television, although, as you know, in a very schizophrenic sense, is founded on the idea that we ought to use the public somehow to fund or articulate values in the society. In a certain sense the whole, to jump a little bit, the whole National Endowment for the Arts question is about the role of government in shaping speech in the society. The whole Helms debate, all of that is about what role the government has as speaker, or as affecting those who speak on the government’s behalf or funded by the government.

HEFFNER: Which raises questions, but as you point out, not as difficult questions as when you move on from government to speaker. There are not many people who have objected to the government’s campaigning.

PRICE: No, but it is very problematic. We do not have Pravda in this country. We do not have a national newspaper, even thought the First Amendment, while it prohibits the establishment of religion, does not specifically prohibit the establishment of a press. And that in itself is an odd thing. And public television, in a certain sense, is kind of halfway bridging the question of this establishment.

HEFFNER: Yes, but we do have a Surgeon General’s office, and the Surgeon General issues statements, and the Surgeon General encourages others to say things.

PRICE: We have the bully pulpit principle of the government…


PRICE: And then, of course, as I say the public schools are themselves, and public libraries and all the debates about them, are about, in a certain sense, what limits there are on government as speaker, and what we want the government to say, or what collection of ideas do we want the government to distribute. The second question is a harder one, and that is: at what point do we want the government to say to someone else, “you cannot say that”? That’s the classic First Amendment difficulty and it seems to me that there’s a balance between the two. That is to say, when the society is in a situation where there’s difficulty about the marketplace and what it’s producing, it may be that we prefer the government to speak more if it reduces the likelihood that it will encourage others to speak less.

HEFFNER: Now, are you satisfied with what the government is doing, and it’s really minimal, in terms of discouraging others from speaking as they shouldn’t if they’re going to meet this problem?

PRICE: Well, there are two…there are a couple of kinds of…first of all I think that if we focus on what we think the speech is that is implicated here, and that is to what extent are people altering behavior…are people conscious of behavior that will increase the likelihood of the AIDS virus spreading in one sort or another? I would say two things. One, and certainly you’re probably more aware of this than I am, and maybe I’m wrong about it and I’d certainly like your views, the question is whether those who are responsible for the telling of stories in the society, television, motion pictures, etc., themselves have become sensitive to this question. I was just reading today that the Director’s Guild at some point put forth guidelines to directors saying, “There is an AIDS crisis. You should be conscious of it. We’re not saying there shouldn’t be casual sexuality in films, but you should think through the relevance of it for the purpose of the script.” Was it self-serving? Did it have an effect? Do we see differences in films? In the book I suggest that we do…

HEFFNER: That we see the relevance?

PRICE: That we see changes. You may see too many films and you may not see as many changes. I can’t say as I do. At least in the late 1980s it seemed to me there was a moment of some glimmer of responsibility by the tellers of tales, some glimmer of a notion, “Look, people are dying. This is a hazardous moment. Some of them are friends. This is something that can affect the society as a whole. We should be conscious of this. We should be careful, in some ways, about the stories we tell.”

HEFFNER: But doesn’t, given the fact that you’ve written this book about “a search for identity, and community in the AIDS era”, focusing on the catastrophic nature of this epidemic…the question I have to ask you is whether what you have seen is real or not. Is it sufficient in your estimation?

PRICE: Well, that’s…to the extent we’re talking about AIDS, as opposed to greater cultural concerns which we could talk about. A lot of that depends on something that I cannot gauge myself which is: what is the appropriate level of apocalyptic feeling to have about AIDS itself?

HEFFNER: Why can’t you gauge that for yourself?

PRICE: As a citizen you mean?

HEFFNER: Yes, of course, right.

PRICE: Because I’m not a public health specialist. I read the statistics, I read the…

HEFFNER: Do you have any questions?

PRICE: I don’t have a question about its extraordinary seriousness and its extraordinary effect on the society around us. I do think…let me slightly dodge the question in the following way: We are at the present time, in a peculiar way, internalizing the AIDS crisis. That is to say, it is becoming part of the fabric of life the way in which the prospect of nuclear war became internalized. We recall a time in which this was much more in the forefront of people’s psyche, the threat of nuclear war, in terms of something that might occur next month. Somehow or other it became internalized. The level of apprehension declined, at least on a kind of very conscious level, and so the way in which individuals responded to symbols, to messages, to fears that were telegraphed to them, changed. In a way, that’s happening now with respect to AIDS. That is to say, where it may well be a period at which there was a conscious relationship between the very explicit stories and peoples’ behavior. And we may have gone to a different psychological period in which our sense of AIDS has become internalized. Conduct changes to a certain extent and it’s not so dependent on explicit stories and what they’re like. I don’t think that’s the case, by the way, for the young, for the adolescents, and for some of the people who are at risk.

HEFFNER: But to the extent that it is true, don’t you have to add “and woe is us”, to the extent that that is true, that we have come to assume, to make assumptions about this crisis and feel less pressed? I can use the term “crisis”. You can use the term “crisis”, but now I’m asking for your judgment and what is the level of threat. Therefore, what is the level of change that you would advocate?

PRICE: Well, I think that, again, there are two levels. One is the actual research/medical level, which is the question of “are we doing enough to find a magic bullet?” And the other is the behavioral/social level which is “are we doing enough to give each individual a sense of consciousness that this is something”…particularly the young, again, I want to emphasize that, and I think there the answer is probably not. I think that the government for a long time has been very schizophrenic itself about how it can deliver an effective message. We are still at a stage in which there is not permitted advertising. It’s permitted but not engaged in advertising of condoms. There is not enough ability to be frank and candid with people about what conduct is and is not at risk, etc., but there is a lot more than there has been in the past.

HEFFNER: But it seemed to me as I read Shattered Mirrors, that you were also addressing yourself to a larger cultural question. What behavioral patterns are being pushed by media today that lend themselves, not to the diminution of the threat, but to an increase of the threat of AIDS?

PRICE: Well, I think that…I agree, and one of the things which I think…putting together this question of the government as speaker, and the government as sensor, what occurs in a society in which the government as speaker is totally drowned out by non-governmental speakers who are promulgating messages that are counter indicated, from the public health standpoint.

HEFFNER: Now that’s such an important thing to say, and to say again and again, and there are very few people who are saying that in our society. Why?

PRICE: Why, why is that? Why are there…

HEFFNER: So few people who are biting this bullet you seem willing to bite now?

PRICE: I don’t think I’ve quite bitten it. I know that you’ve tried to get me really to bite in, and I am ambivalent myself, and I think it’s because we have such a strong tradition of seeing government jawboning, government advisement to private speakers as being something which is hostile to our traditions. I write in the book about the family hour, the family viewing hour case, in which after a good deal of concern about whether there was too much violence on television the Chairman of the FCC sat down with the chairs of the three major networks and said, “look, is there something we can do?” As a consequence, I’ll say, the networks tried something that was, I thought, promising in terms of having a kind of family viewing hour. And this was bitterly attacked as something that was wrong on the part of the Chairman of the FCC.

HEFFNER: It was bitterly attacked because it bit into the income of the people who then protested, and won in the federal courts, and out went the family viewing hour.

PRICE: Right. That’s correct. So I think that what we’re dealing with here is that mode of discourse, that is to say, is there an appropriate relationship between government as keeper of values, in a curious way, or an entity that has a sense of what the society might be like in its discourse, with those who are engaged in the production of stories in our society?

HEFFNER: And I got you to concede that in part you’re saying that without the keepers of values that were present when our instrument of government was forged, it may well be that if we are going to support those values before they go down the drain all together, government is going to have to do something different from what it did two centuries ago.

PRICE: I think that was it. That’s true. I think that’s true. I think we also have to talk about other ways that other parts of the society can have a greater and richer debate about what those values are, and how they should be strengthened.

HEFFNER: A good enough First Amendment person that you come back to the notion of debate, and I appreciate that, Dean Price. I particularly appreciate Shattered Mirrors and the more than hints it gives that this is a time for re-examining what the traditional argument has been about the proper relationship between the individual and the state. You know, I say this frequently, and I really mean it. I probably loused us up by focusing first on the larger question and letting AIDS sort of hang by its hair, but think you for joining me today on The Open Mind.

PRICE: Thank you very much.

HEFFNER: And thanks, too, to you in the audience. I hope you’ll join us again next time. And if you care to share your thoughts about today’s program, today’s intriguing guest and the questions he’s raised, please write to THE OPEN MIND, P.O. Box 7977, FDR Station, New York, NY 10150. For transcripts send $2.00 in check or money order. Meanwhile, as an old friend used to say, “Good night and good luck”.

Continuing production of this series has generously been made possible by grants from: The Rosalind P. Walter Foundation; The M. Weiner Foundation of New Jersey; The Mediators and Richard and Gloria Manney; The Edythe and Dean Dowling Foundation; The New York Times Company Foundation; The Richard Lounsbery Foundation; and, from the corporate community, Mutual of America.