Cass Sunstein’s recent blatherings about FDR’s “Second Bill of Rights” at The Volokh Conspiracy made me want to find out more about his understanding of the proper role of government in our society. I Googled the eminent professor and hit upon “The Future of Free Speech”, which appears in The Little Magazine, a South Asian journal (thus the British English spellings in the quotations below). Hold your nose and follow Sunstein’s argument in these quotations from “The Future of Free Speech”:
My purpose here is to cast some light on the relationship between democracy and new communications technologies. I do so by emphasising the most striking power provided by emerging technologies: the growing power of consumers to “filter” what it is that they see. In the extreme case, people will be fully able to design their own communications universe. They will find it easy to exclude, in advance, topics and points of view that they wish to avoid. I will also provide some notes on the constitutional guarantee of freedom of speech.
An understanding of the dangers of filtering permits us to obtain a better sense of what makes for a well-functioning system of free expression. Above all, I urge that in a heterogeneous society, such a system requires something other than free, or publicly unrestricted, individual choices. On the contrary, it imposes two distinctive requirements. First, people should be exposed to materials that they would not have chosen in advance….Second, many or most citizens should have a range of common experiences. Without shared experiences, a heterogeneous society will have a much more difficult time addressing social problems; people may even find it hard to understand one another….
Imagine…a system of communications in which each person has unlimited power of individual design….Our communications market is moving rapidly toward this apparently utopian picture….[A]s of this writing, a number of newspapers allow readers to create filtered versions, containing exactly what they want, and excluding what they do not want….
I seek to defend a particular conception of democracy — a deliberative conception — and to evaluate, in its terms, the outcome of a system with perfect power of filtering. I also mean to defend a conception of freedom, associated with the deliberative conception of democracy, and oppose it to a conception that sees consumption choices by individuals as the very embodiment of freedom….
The US Supreme Court has…held that streets and parks must be kept open to the public for expressive activity. Hence governments are obliged to allow speech to occur freely on public streets and in public parks — even if many citizens would prefer to have peace and quiet, and even if it seems irritating to come across protesters and dissidents whom one would like to avoid….
A distinctive feature of this idea is that it creates a right of speakers’ access, both to places and to people. Another distinctive feature is that the public forum doctrine creates a right, not to avoid governmentally imposed penalties on speech, but to ensure government subsidies of speech….Thus the public forum represents one place in which the right to free speech creates a right of speakers’ access to certain areas and also demands public subsidy of speakers….
[T]he public forum doctrine increases the likelihood that people generally will be exposed to a wide variety of people and views. When you go to work, or visit a park, it is possible that you will have a range of unexpected encounters, however fleeting or seemingly inconsequential. You cannot easily wall yourself off from contentions or conditions that you would not have sought out in advance, or that you would have chosen to avoid if you could. Here too the public forum doctrine tends to ensure a range of experiences that are widely shared — streets and parks are public property — and also a set of exposures to diverse circumstances. A central idea here must be that these exposures help promote understanding and perhaps in that sense freedom. And all of these points can be closely connected to democratic ideals, as we soon see….
The public forum doctrine is an odd and unusual one, especially insofar as to create a kind of speakers’ access right to people and places, subsidised by taxpayers. But the doctrine is closely associated with a longstanding constitutional ideal, one that is far from odd: that of republican self-government. From the beginning, the American constitutional order was designed to be a republic, as distinguished from a monarchy or a direct democracy. We cannot understand the system of freedom of expression, and the effects of new communications technologies and filtering, without reference to this ideal….
The specifically American form of republicanism…involved an effort to create a “deliberative democracy.” In this system, representatives would be accountable to the public at large, but there was also supposed to be a large degree of reflection and debate, both within the citizenry and within government itself. The system of checks and balances — evident in the bicameral system, the Senate, the Electoral College and so forth — had, as its central purpose, a mechanism for promoting deliberation within the government as a whole….
We are now in a position to distinguish between two conceptions of sovereignty. The first involves consumer sovereignty; the second involves political sovereignty. The first ideal underlies enthusiasm for “the Daily Me.” The second ideal underlies the democratic challenge to this vision, on the ground that it is likely to undermine both self-government and freedom, properly conceived.
Of course, the two conceptions of sovereignty are in potential tension. A commitment to consumer sovereignty may well compromise political sovereignty — if, for example, free consumer choices result in insufficient understanding of public problems, or if they make it difficult to have anything like a shared culture….
Group polarisation is highly likely to occur on the Internet. Indeed, it is clear that the Internet is serving, for many, as a breeding ground for extremism, precisely because like-minded people are deliberating with one another, without hearing contrary views….
The most reasonable conclusion is that it is extremely important to ensure that people are exposed to views other than those with which they currently agree, in order to protect against the harmful effects of group polarisation on individual thinking and on social cohesion….
The adverse effects of group polarization…show that with respect to communications, consumer sovereignty is likely to produce serious problems for individuals and society at large — and these problems will occur by a kind of iron logic of social interactions….
The phenomenon of group polarisation is closely related to the widespread phenomenon of ‘social cascades’. No discussion of social fragmentation and emerging communications technologies would be complete without a discussion of that phenomenon….
[O]ne group may end up believing something and another the exact opposite, because of rapid transmission of information within one group but not the other. In a balkanised speech market, this danger takes on a particular form: different groups may be led to dramatically different perspectives, depending on varying local cascades.
I hope this is enough to demonstrate that for citizens of a heterogeneous democracy, a fragmented communications market creates considerable dangers. There are dangers for each of us as individuals; constant exposure to one set of views is likely to lead to errors and confusions. And to the extent that the process makes people less able to work cooperatively on shared problems, there are dangers for society as a whole.
In a heterogeneous society, it is extremely important for diverse people to have a set of common experiences….
This is hardly a suggestion that everyone should be required to participate in the same thing. We are not speaking of requirements at all. In any case a degree of plurality, with respect to both topics and points of view, is also highly desirable. My only claim is that a common set of frameworks and experiences is valuable for a heterogeneous society, and that a system with limitless options, making for diverse choices, will compromise the underlying values.
The points thus far raise questions about whether a democratic order is helped or hurt by a system of unlimited individual choice with respect to communications. It is possible to fear that such a system will produce excessive fragmentation, with group polarisation as a frequent consequence. It is also possible to fear that such a system will produce too little by way of solidarity goods, or shared experiences. But does the free speech principle bar government from responding to the situation? If that principle is taken to forbid government from doing anything to improve the operation of the speech market, the answer must be a simple Yes.
I believe, however, that this is a crude and unhelpful understanding of the free speech principle, one that is especially ill-suited to the theoretical and practical challenges of the next decades and beyond. If we see the Free Speech Principle through a democratic lens, we will be able to make a great deal more progress.
There should be no ambiguity on the point: free speech is not an absolute. The government is allowed to regulate speech by imposing neutral rules of property law, telling would-be speakers that they may not have access to certain speech outlets….Government is permitted to regulate unlicensed medical advice, attempted bribery, perjury, criminal conspiracies (“Let’s fix prices!”), threats to assassinate the President, criminal solicitation (“Might you help me rob this bank?”), child pornography, false advertising, purely verbal fraud (“This stock is worth $100,000”), and much more….And if one or more of these forms of speech can be regulated, free speech absolutism is a kind of fraud, masking the real issues that must be confronted in separating protected speech from unprotected speech….
If the discussion thus far is correct, there are three fundamental concerns from the democratic point of view. These include:
• the need to promote exposure to materials, topics, and positions that people would not have chosen in advance, or at least enough exposure to produce a degree of understanding and curiosity;
• the value of a range of common experiences;
• the need for exposure to substantive questions of policy and principle, combined with a range of positions on such questions.
Of course, it would be ideal if citizens were demanding, and private information providers were creating, a range of initiatives designed to alleviate the underlying concerns….But to the extent that they fail to do so, it is worthwhile to consider government initiatives designed to pick up the slack….
1. Producers of communications might be subject…to disclosure requirements….On a quarterly basis, they might be asked to say whether and to what extent they have provided educational programming for children, free airtime for candidates, and closed captioning for the hearing impaired. They might also be asked whether they have covered issues of concern to the local community and allowed opposing views a chance to be heard….Websites might be asked to say if they have allowed competing views a chance to be heard….
2. Producers of communications might be asked to engage in voluntary self-regulation….[T]here is growing interest in voluntary self-regulation for both television and the Internet….Any such code could, for example, call for an opportunity for opposing views to speak, or for avoiding unnecessary sensationalism, or for offering arguments rather than quick ‘sound-bytes’ whenever feasible.
3. The government might subsidise speech, as, for example, through publicly subsidised programming or Websites….Perhaps government could subsidise a ‘public.net’ designed to promote debate on public issues among diverse citizens — and to create a right of access to speakers of various sorts.
4. If the problem consists in the failure to attend to public issues, the government might impose “must carry” rules on the most popular Websites, designed to ensure more exposure to substantive questions. Under such a program, viewers of especially popular sites would see an icon for sites that deal with substantive issues in a serious way….Ideally, those who create Websites might move in this direction on their own. If they do not, government should explore possibilities of imposing requirements of this kind, making sure that no program draws invidious lines in selecting the sites whose icons will be favoured….
5. The government might impose “must carry” rules on highly partisan Websites, designed to ensure that viewers learn about sites containing opposing views….Here too the ideal situation would be voluntary action. But if this proves impossible, it is worth considering regulatory alternatives….
Emerging technologies are hardly an enemy here….But to the extent that they weaken the power of general interest intermediaries, and increase people’s ability to wall themselves off from topics and opinions that they would prefer to avoid, they create serious dangers….
So let’s all put on our brown shirts and march to a public rally at which we will be “allowed” to shout: “Dark is light; black is white; Sunstein is right.”
In an earlier post I said that Cass Sunstein is to the integrity of constitutional law as Pete Rose is to the integrity of baseball. It’s worse than that: Sunstein’s willingness to abuse constitutional law in the advancement of a statist agenda reminds me of Hitler’s abuse of German law to advance his repugnant agenda.
Oops, I should link to an opposing view. Sunstein doesn’t have a blog, so how about this?
Politics and Prosperity 