Vol. 4, No. 2 (February, 1994), pp. 19-22.
DEMOCRACY AND THE PROBLEM OF FREE SPEECH by Cass R. Sunstein. New
York: The Free Press, 1993. 300 + xx pp. Cloth $22.95.
Reviewed by William S. Mandel, Department of Political Science,
Miami University.
In a recent review in THE NEW REPUBLIC of Stanley Fish's new book
on free speech, Cass Sunstein criticizes Fish for (among other
things) not moving beyond his skepticism (of ostensibly absolute
and neutral principles of free speech) to offer alternative
principles by which a system of free expression could exist.
Sunstein then suggests that the goal of a system of free speech
should be "a kind of deliberative democracy, in which
political accountability and majority rule are combined with an
obligation to allow judgments to emerge through public
discussion" (p. 46). This is also the core argument in
Sunstein's DEMOCRACY AND THE PROBLEM OF FREE SPEECH. This
provocative and tightly reasoned book is Sunstein's latest
contribution to the ongoing colloquy among constitutional
scholars searching for elusive standards by which to interpret
the First Amendment speech and press clauses. It is best
considered alongside recent books by Rodney Smolla (FREE SPEECH
IN AN OPEN SOCIETY), Steven Shiffrin (THE FIRST AMENDMENT,
DEMOCRACY, AND ROMANCE), Nat Hentoff (FREE SPEECH FOR ME -- BUT
NOT FOR THEE), Catharine MacKinnon (ONLY WORDS), Jonathan Rauch
(KINDLY INQUISITORS), and William Van Alstyne (INTERPRETATIONS OF
THE FIRST AMENDMENT), among others, in order to appreciate the
significance and difficulty of this task, and the thoughtful yet
diverse approaches to it.
Sunstein, a professor at the University of Chicago Law School and
former clerk to the late Justice Thurgood Marshall, is impatient
with the current, leading theories concerning free speech. He is
especially dissatisfied with so-called "absolutist"
interpretations of the First Amendment. Sunstein laments that
ideas central to this absolutist approach have become entrenched
in the Supreme Court's First Amendment jurisprudence. They
include the idea that "the government is the enemy of free
speech," that "all speech stands on the same
footing" (p. 5), and that "balancing" of interests
should be minimized ("judges should not uphold restrictions
on speech simply because government seems to have good reasons
for the restriction in the particular case" (p. 6).
Of course, as Sunstein acknowledges, free speech law has
necessarily avoided strict absolutism. The law recognizes that
some forms of speech cannot be freely allowed (e.g., plagiarism,
bribery, libel, false advertising, obscenity, harassment,
threats, perjury), and has evolved into a two-tier system in
order to accommodate these distinctions. Still, in just the past
few decades, "we have acquired a new First Amendment."
"But," he adds, "the law now faces new
constitutional problems raised by campaign finance laws, hate
speech, pornography, rights of access to the media and to public
places, and government funds accompanied by conditions on speech.
These problems have shattered old alliances, and they promise to
generate new understandings of the theory and practice of freedom
of expression" (p. 16). Sunstein proposes a new
understanding in his book. He promises at the outset a
"large-scale reassessment of the appropriate role of the
First Amendment in the democratic process" (p. xi) and an
"ambitious reinterpretation of the principle of free
expression" (p. 16). The book is certainly thorough and
intellectually vigorous, but the product of his exhaustive
analysis (suggestions for a new system of free speech) is less
than spectacular. As might be expected with intractable problems
like hate speech, pornography, government subsidies and the like,
Sunstein's solutions raise more questions than they answer.
Sunstein would like to lead our thinking about free speech away
from the "marketplace" metaphor, rooted in Holmes'
famous dissent in ABRAMS V. UNITED STATES. He regards as illusory
the idea that our system of free speech is based on laissez-faire
principles and that government is a neutral agent. In this sense,
Sunstein agrees with Stanley Fish. Even innocuous laws, such as
those forbidding trespass on private
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property, make government an active participant in the free
speech arena. Sunstein cites the example of privately owned
shopping centers, whose owners, backed by Supreme Court decisions
and government enforcement, decide what expression shall be
allowed within. "The owners of the shopping center are able
to exclude the protestors only because government has granted to
them a legal right to do so. . . . It is a real question whether
the grant of exclusionary power violates the First Amendment, at
least in circumstances in which it eliminates the only real way
of making a protest visible to members of the local
community" (p. 44).
The point Sunstein is making is that much like pre-New Deal
"laissez-faire" economics, government is less the agent
of neutrality and more so the agent of the status quo. Since
government will play a role in any case, he would prefer its
policies be judged, in First Amendment terms, by how they affect
our system of free speech, specifically our democratic
deliberative process. Government should promote broad
communication and diverse points of view on matters of public
concern. It should also promote political equality among those
engaged in these public deliberations.
Sunstein favors Brandeis' emphasis of political discussion and
debate in his famous concurrence in WHITNEY V. CALIFORNIA over
Holmes' pluralist "marketplace." The link between the
First Amendment and deliberative democracy is the core to what he
calls the Madisonian conception of free speech. Thus, the most
highly valued speech, deserving strong governmental protection
and encouragement, is political speech, defined as "when it
is both intended and received as a contribution to public
deliberations about some issue" (p. 130). Policies that
promote such expression are at the heart of Sunstein's "New
Deal" for speech. He offers NEW YORK TIMES V. SULLIVAN as a
model. There the Supreme Court recognized governmental power in
even a private libel suit, and limited that power to encourage
speech of public concern. Consistent with his approach, though,
Sunstein adds that the "libel of celebrities often does not
involve politics, and states could protect these people without
offense to the First Amendment" (pp. 160-61). RED LION V.
F.C.C., in which the Court upheld the Fairness Doctrine, is
offered as a similar case where law facilitates the public
exchange of ideas while also promoting political equality among
participants.
Sunstein's New Deal for speech, however, has two tiers of its
own. He concedes that "nonpolitical values are often at
stake in free speech cases" (p. 130), including that of
"autonomy," or what Rodney Smolla calls in his book,
"the human dignity rationale" for free speech (Smolla
quotes Sunstein's former employer, Justice Marshall: "The
First Amendment serves not only the needs of the polity but also
those of the human spirit -- a spirit that demands
self-expression") (p. 9). Expression that does not rise to
the level of political speech (some artistic, scientific, and
literary work, for example), Sunstein acknowledges, may also
require protection.
In a nutshell, Sunstein proposes protecting even this second tier
of expression from restrictions linked to "impermissible
government justifications":
In general, government cannot regulate speech of any sort on the
basis of (1) its own disagreement with the ideas that have been
expressed, (2) its perception of the government's (as opposed to
the public's) self- interest, (3) its fear that people will be
persuaded or influenced by ideas, and (4) its desire to ensure
that people are not offended by the ideas that speech contains
(p. 155).
One strength of the book is that the author does not shy away
from the tough issues. This strength, however, leads to a
weakness: that the tough issues seem no closer to solution under
his system than otherwise. He addresses campaign finance (BUCKLEY
V. VALEO was wrong in forbidding caps on expenditures [pp.
97-98]); public forums; newspapers (suggests a right of reply,
and
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government subsidies to newspapers "that agree to cover
substantive issues in a serious way" [p. 107]); hate crimes
(agrees with the ruling in WISCONSIN V. MITCHELL, but not R.A.V.
V. ST. PAUL [p. 197]); arts and literature; and other matters too
numerous to discuss here. Two issues, however, illustrate the
difficulties found in the details.
In the areas of pornography and hate speech, Sunstein emphasizes
the harm element. As to the former, he rejects the "all
sexually explicit speech is protected" argument as well as
current law's reliance on community standards, preferring instead
civil remedies for proven harm (harm to models and actresses, and
to victims of violence, harassment, and dehumanizing behavior
caused by pornography). It is unclear, though, how much guidance
this provides to the decision-makers in these cases. How
proximate must the harm be? How tangible? What if the offending
material is defended as art? And what of the argument that this
is viewpoint-discrimination favoring a particular view of women?
Sunstein answers this last point by suggesting that it is no
worse than applying "community standards" in obscenity
cases.
As for hate speech, writes Sunstein, "A subject matter
restriction on unprotected speech should probably be upheld if
the legislature can plausibly argue that it is counteracting
harms rather than ideas" (p. 193). He argues that certain
categories of speech are so harmful that restrictions should be
allowed. In a university setting, the educational mission of the
institution provides additional reasons for regulating hate
speech.
First, a university might regulate hate speech, narrowly defined,
as simply a part of its general class of restrictions on speech
that is incompatible with the educational mission. . . . Second,
courts should allow narrowly defined hate speech restrictions
even if those restrictions are not part of general proscriptions
on indecent or uncivil behavior. For example, Stanford now
forbids speech that amounts to "harassment by personal
vilification" (p. 203).
With these two categories of speech, as with others, Sunstein
cautions that speech contributing to social deliberation should
not be curtailed. Who decides, though, what is mere epithet and
what is an "exchange of ideas"? How are lines to be
drawn between Hustler magazine, the Mapplethorpe exhibit, and
Michelangelo's David, and who is to draw them? Where does
"harm" end and politics begin?
He explains, "I certainly do not mean to argue that large
national bureaucracies should be overseeing our system of free
expression for 'political correctness' or for good content"
(p. 35). But by using tax and subsidy mechanisms to provide more
"serious," "quality" programming and
reporting in the media, or by making judgments over what art,
literature, or (even) hate speech contributes to public
discussion and what does not, government will ultimately be in
the oversight business. This is not to say that Sunstein's
two-tier approach is not a useful framework by which free speech
decisions may be judged, but the hard cases remain hard.
Sunstein's New Deal for free speech sometimes requires property
rights to bend to the needs of political equality. Branding this
a "Madisonian" point of view may be a stretch as it
ignores the Founders' reliance on natural rights, one of which
was to property, an adjunct to liberty. (Sunstein attributes the
"Madisonian" roots of his theory to quotes from
Madison's Virginia Report of 1800, a curious choice since Madison
there insisted that the Constitution provided absolute freedoms
of speech and press against the federal government.) One wonders,
too, how far Sunstein would go regarding property to enforce his
New Deal. He would force a shopping mall owner to tolerate
messages and pickets on his property whether or not he or she
agreed with them. Would this also apply to a private homeowner's
front (or back) yard if it too were uniquely located?
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Despite these concerns, this book makes an important contribution
to efforts to build a coherent theory of free expression in our
society. It is an intellectually honest and insightful journey
along the thoughts and reasoning of its author, and it deserves
the attention of all those concerned with the future direction of
free speech law.
References:
William W. Van Alstyne, INTERPRETATIONS OF THE FIRST AMENDMENT
(Durham, NC: Duke University Press, 1984)
Cass Sunstein, Review of Stanley Fish, THERE'S NO SUCH THING AS
FREE SPEECH AND IT'S A GOOD THING, TOO, in THE NEW REPUBLIC,
December 6, 1993, pp. 42-46.
Nat Hentoff, FREE SPEECH FOR ME -- BUT NOT FOR THEE (New York:
Harper Perennial, 1992)
Catharine A. MacKinnon, ONLY WORDS (Cambridge: Harvard University
Press, 1993)
Jonathan Rauch, KINDLY INQUISITORS: THE NEW ATTACKS ON FREE
THOUGHT (Chicago: University of Chicago Press, 1993)
Rondey Smolla, FREE SPEECH IN AN OPEN SOCIETY (New York: (New
York: Vintage Books, 1992).
Steven H. Shiffrin, THE FIRST AMENDMENT, DEMOCRACY, AND ROMANCE
(Princeton: Princeton University Press, 1990)
Copyright 1999