Commentary Magazine


Democracy and the Problem of Free Speech, by Cass R. Sunstein

Talking Points

Democracy and the Problem of free speech.
by Cass R. Sunstein.
Free Press. 300 pp. $22.95.

Cass Sunstein of the University of Chicago Law School, described by the New York Times as “the most coveted young academic in the country,” shares the widely held view that our media have become increasingly irrelevant and obnoxious, and are a disservice to American democracy. While lambasting the media is in itself hardly a new exercise, Democracy and the Problem of Free Speech is noteworthy because of where Sunstein locates the source of the problem: namely, in the current state of First Amendment law. The book is also significant because it endorses the Orwellian view that in order to safeguard freedom of speech, what is needed is more regulation.

Sunstein is concerned primarily with the discussion of political issues in the press and on radio and television. His charge is that these media “deal rarely with serious issues and then almost never in depth”; “turn much political discussion into the equivalent of advertisements”; and “treat most candidates and even political commitments as commodities to be ‘sold.’” In the process, the media fail to fulfill their constitutional responsibility, which is, according to Sunstein, the fostering of democratic deliberation.

Enter the First Amendment. Its primary purpose, in Sunstein’s view, is to promote access to the information American citizens need in order to make responsible political choices—an insight he ascribes to James Madison. But this “Madisonian conception” differs significantly from much of current constitutional doctrine, which Sunstein characterizes as being too much in thrall to the free-market approach of the Reagan administration. The Supreme Court’s misguided “hands-off” approach to speech has, he believes, permitted insufficiently substantive media to flourish.

Diversity is also lacking. In its place, Sunstein detects a lamentable tendency among newspapers and broadcasting stations alike to “allocate the right to speak in accordance with the goal of increasing financial returns.” This for-profit orientation, protected by law, unduly favors the views of the rich and powerful—including “large broadcasters”—who are themselves not above invoking the First Amendment in their attempts to resist “government efforts to promote quality public-affairs programming, and diversity in the media.”

The notion that the goal of the First Amendment is to promote edifying democratic discussion leads Sunstein to two conclusions. First, government must act affirmatively to ensure that all points of view about controversial issues of public importance are heard. Second, while political speech should be entitled to the utmost protection, courts should favor government attempts to restrict other, “lower-value” forms such as commercial advertisements and certain types of pornography and hate speech. (Sunstein’s distinctions among protected and unprotected speech are occasionally quite odd: for example, he places violent heterosexual pornography outside the scope of the First Amendment but would protect violent homosexual pornography.)

Sunstein’s reading of the First Amendment also leads him to propose a “New Deal for Speech”—i.e., measures designed to increase discussion of public affairs and, as it were, redistribute the power to communicate. Among his suggestions are a requirement that one hour of public-affairs programming be aired per night; government enforcement of a mandatory right-of-reply on broadcast stations and in newspapers; and government subsidies to promote “higher-quality” television shows, as well as more “serious” and “substantive” newspapers, ostensibly on a “viewpoint-neutral” basis.

Sunstein justifies these intrusive regulations on the grounds that the state, which enforces the laws of theft and trespass, is the source of all property rights—the “New Dealers’ central insight,” as he puts it. Our property, he repeatedly states, is, “simply as a matter of fact, governmentally conferred.” Accordingly, the government can regulate it to promote the greater good: in this case, a more informed polity.

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Democracy and the Problem of Free Speech reads as if it were written in haste—a consequence, perhaps, of Sunstein’s prolific tendencies. (He already articulated his legal philosophy last year in The Partial Constitution.) It is often repetitive, often vague, and often equivocal, at least rhetorically. Thus, Sunstein repeatedly bows in the direction of market incentives, and tempers almost all of his proposed changes by calling them “suggestions” worthy of “consideration.” In fact, however, his vagueness, equivocation, and centrist rhetoric hardly mask his statist agenda.

To begin with a few of Sunstein’s “suggestions”: the idea that one hour of public-affairs programming be required per night is simply laughable. Who would watch it? PBS, let alone the various public-affairs cable channels, are already ignored by millions. Oscar Wilde once quipped that “Socialism takes too many evenings”; Americans, fortunately, still enjoy the freedom to spend their evenings as they choose.

Other reforms favored by Sunstein are more dangerous, giving government the opportunity to determine the messages we hear. It is, for instance, absurd to think that government subsidies for serious newspapers or for broadcasters airing “high-quality programming” would be administered on a viewpoint-neutral basis; the Federal Communication Commission (FCC) already has a history of handing out government goodies in a rankly partisan manner, from the days of Franklin D. Roosevelt, who steered radio licenses toward his political supporters, to the days of Dwight D. Eisenhower, when television stations were overwhelmingly granted to Republicans.

Mandatory rights-of-reply are a similarly foolhardy idea. Prior to 1987, the FCC required stations to devote a significant amount of air time to controversial issues of public importance. The coverage was required to be “fair”; stations were expected to present contrasting viewpoints on the issues discussed. If the station itself was not “fair”—a determination made by the FCC—representatives of opposing viewpoints had a right to be heard later over the station’s airwaves.

Not only did this ill-named “fairness doctrine” cause stations simply to avoid controversial issues to the extent possible, but the doctrine was also used to persecute critics of the government. As Bill Ruder, a former Assistant Secretary of Commerce in the Kennedy administration, has written: “Our strategy was to use the fairness doctrine to challenge and harass right-wing broadcasters and hope that the challenges would be so costly to them that they would be inhibited, and decide it was too expensive to continue.” Ominously, Congress is currently considering reimposing the “fairness doctrine” to quiet the likes of Rush Limbaugh and G. Gordon Liddy.

Even in the absence of deliberate favoritism, government enforcement of diversity leads to intractable problems. Would The Limbaugh Letter qualify for Sunstein’s subsidies? It is substantive, but perhaps not sufficiently serious. What about USA Today? Serious—but maybe not substantive enough. The New York Times? Substantive and serious, but does the Times really need a subsidy? It is hard to avoid the conclusion that Sunstein simply wants the taxpayers to underwrite speech of the kind he favors.

Most problematic of all is Sunstein’s understanding of property in the political philosophy of the framers, as well as the link between property rights and free speech. In plain fact, the Constitution rejects the notion that property is “governmentally conferred.” Property rights, like the rights to speak or to worship, are pre-political and are protected in the Bill of Rights. As part of the constitutional compact, “We the People” cede to the government certain rights in order to protect our lives and our property collectively. Although this arrangement may necessitate some limits on the use of that property, it does not, pace Sunstein, justify confiscating the property of some so that others may speak.

Disrespect for property rights ultimately denigrates freedom of expression. The ability of a newspaper to convey a message depends on the right to publish whom it wishes to publish, by including some and excluding others. Sunstein’s view—that the government creates private-property rights and can therefore award access to a newspaper’s pages over the publishers’ objections—would impair, if not destroy, this ability. For that reason the influential Cato’s Letters (1720) said, in discussing the freedom of expression: “This sacred Privilege is so essential to free Government that the Security of Property, and the Freedom of Speech, always go together.”

Like some other prominent liberals, Sunstein has soured on the current state of First Amendment law because it sometimes protects the “wrong” speakers. But his suggested “New Deal” makes one yearn for Old Left civil libertarians. They may have been socialists, but at least they championed free speech.

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