To the Editor:
I subscribe to Justice Black’s absolutist views of the First Amendment, and I am also an admirer of John O. McGinnis, but his tirade against leftist efforts to have government regulate speech is so shrill, and his historical errors so significant [“The Left vs. Free Speech,” October 1994], that I am not sure he has advanced the argument. . . .
Mr. McGinnis singles out for attack three leftists who argue that the government should regulate speech: Morton Horwitz, Stanley Fish, and Cass Sunstein. He recognizes that these three men are quite different, and he even acknowledges that the first two are well out of the political mainstream. He nonetheless attributes common motives to each of them. “Elements on the Left,” Mr. McGinnis argues, “have begun to oppose a free market in ideas for the same reason that inefficient, failing companies favor government regulation of their product market: they fear competition and hope to retard it.” All I can say to this is that Mr. McGinnis has apparently not read much of any of the men he criticizes, for whatever one might say about them, the idea that they fear debate is preposterous.
In fact, I am not sure what the point is of speculating as to why people have the views they have. Why not just debate the issues? Because I am not much of a mind reader, I cannot say with certainty that Mr. McGinnis is wrong in imputing to Horwitz, Fish, and Sun-stein the motives he does, but I can say with confidence that the historical record does not bear out his charges. Stanley Fish has had one philosophical idea, which he has been recycling for over twenty years; he had that idea by the early 70’s at the latest, well before the Communist collapse; and it is not even his idea. Fish simply does not believe in truth. He therefore rejects the idea that the First Amendment serves the instrumental value of aiding in the search for political or normative truth. Many legal scholars have argued that Fish is quite wrong, that we are surely capable of articulating truthful, normative, or legal propositions. One of Fish’s most vocal opponents is Owen Fiss who, of all things, shares Sunstein’s views.
Unlike Fishean skeptics, antipornography crusaders, whom Mr. McGinnis mentions but conspicuously does not include among those he lampoons (perhaps because he agrees with their political agenda? I won’t try to read his mind), also support restrictions on the First Amendment precisely because they do believe in truth. Their arguments depend upon the proposition not only that pornography is harmful, a claim which is empirically dubious, but also upon the idea that pornography is false. Similarly, the supporters of governmental restrictions on so-called hate speech, of which Horwitz is one, also necessarily adhere to a vision of the First Amendment which presupposes the existence of political truth. How this has anything at all to do with the collapse of Communism escapes me.
Cass Sunstein, the third leftist whom Mr. McGinnis identifies, also appears to believe in truth. I must confess that I found Sunstein’s book quite thoughtful, and I must also say that I have no quibble with Mr. McGinnis’s summary of Sunstein’s argument. Sunstein agrees that the First Amendment does indeed play a truth-serving function in our democracy. Accordingly, when the market is dominated by the loudest voices, the First Amendment is failing in its instrumental role. I cannot fathom how Mr. McGinnis constructs a connection between Sunstein’s thesis and the collapse of socialist societies. Sunstein’s point (unlike, say, the anti-pornographers’) is not that the government should make some people shut up; it is that the government must ensure that people who are at present silenced get to speak. Obviously, Sunstein’s prescription can be regarded as a form of wealth redistribution, but so are antitrust laws, and I have never heard anyone—maybe Mr. McGinnis will be the first—call Theodore Roosevelt a Communist.
David R. Dow
University of Houston
John O. McGinnis writes:
My “historical errors” are of David R. Dow’s own imagining. I did not argue that Stanley Fish had only recently become skeptical of the possibility of truth or that truth-skepticism is itself a new idea. Instead, I observed that Fish had recently—at a time when liberal-Left ideas seem to be collapsing politically—applied his truth-skepticism to free-speech doctrine with the avowed purpose of freeing the “liberal-Left” from its traditional absolutist view of the First Amendment. Nor did I argue that Cass Sunstein, Morton Horwitz, and Fish shared some underlying epistemology, but simply that they had, in different ways, all recently turned against traditional First Amendment principles. Indeed, legal theorists who have little in common but a position on the Left of the political spectrum have all recently expressed an interest in greater government regulation of speech. This strengthens rather than weakens my thesis that the new First Amendment revisionism is connected to the declining influence of left-wing thought in the marketplace of ideas.
As for Mr. Dow’s complaint about my focusing on motives, I made clear in my article that I had debated the merits of greater government regulation of speech elsewhere. In any event, it has generally been accepted, at least since Hume, that social ideas cannot be fully fathomed without putting them in the context of the passions that give rise to them, even if the advocates of the ideas themselves lack such self-understanding.
It is amusing to be characterized as “shrill” by one who, in his peroration, suggests that I may be obliged, for the sake of consistency, to label Theodore Roosevelt a Communist. (Incidentally, the antitrust laws have as their object the increase of consumer welfare, not redistribution.) I called no one a Communist. My single mention of Communism came in a long list of recent political developments that have been unfavorable to all social egalitarians—a group that includes not only Communists but Democratic and Fabian Socialists as well as many liberal Democrats. The purpose of the list was to show the full extent of the Left’s retreat and thus explain the wide front on which the new First Amendment revisionism is taking hold.
Mr. Dow is not a very tenacious First Amendment absolutist if he is so easily tempted by the prospect, proposed by Sunstein, of a “New Deal” regime in which the state may redistribute the speech opportunities as it redistributes wealth. This would inevitably require the state to make decisions about the content of what is to be disseminated. For example, to determine whether a view has been insufficiently represented, the state would have to make political distinctions. Does the view of a traditional conservative require the response of a libertarian as well as a liberal? What about a socialist? If Sunstein’s proposal were put into practice, assessments like these would dictate the shape of our political discourse. That is why the New Deal for speech is so much more destructive of the First Amendment than attempts to regulate pornography (although, contrary to Mr. Dow’s claim, I expressly drew attention to such attempts as part of the unfortunate new enthusiasm for the regulation of speech).
Finally, I hope I may continue to enjoy Mr. Dow’s admiration, which heretofore was a well-kept secret.