This is the last of this series of posts about Cass Sunstein, unless he deigns to reply to me. I have many positive things to say about many subjects, and I have been neglecting other targets of opportunity.

Liberty Corner: Apropos the preceding post, I wish you, Cass Sunstein, would quit beating around the bush. If you want something, you have to spell it out. Don’t be coy, Cass, tell us how you would amend the Constitution to ensure that all internet users are exposed to points of view that they would otherwise eschew.

Cass Sunstein: Let’s start with the First Amendment, which deals with freedom of speech and of the press, among other things. I’m suggesting that we simply recognize that not all speech is protected and use that fact to force the purveyors of extreme points of view to acknowledge opposing points of view.

LC: Tell us how you would restate the First Amendment so that it does the right thing.

CS: I would add the following codicil: Congress, in order to promote a more efficacious deliberative democracy, may require persons to acknowledge opposing points of view when they communicate on a subject. Further, Congress may require communications media to assist in that endeavor and to transmit points of view other than those which they might willingly transmit.

LC: So, in the name of political freedom you would curtail freedom?

CS: I don’t think of it that way. We’re all more free, in an intellectual way, when we’re exposed to a diversity of experiences and points of view. Besides, freedom is something we receive from government; government may therefore withdraw some freedom from us when it’s for our good.

LC: Let’s assume, for the sake of this discussion, that people desire political freedom, and the other types of freedom that flow from it. Would we really be more free if government forced us to hear or at least take part in the transmission of views with which we disagree, or would we simply be encumbered with more rules about how to live our lives?

CS: That’s a negative way of looking at it.

LC: Let me draw an analogy from fiction. Have you read Portnoy’s Complaint?

CS: You aren’t about to slur my ethnicity, are you?

LC: No, not at all. It’s just that the novel’s protagonist, Alex Portnoy, has an experience that reminds me of your proposed codicil to the First Amendment. His mother stood over him with a knife in an effort to make him eat his dinner. Do you think government should act like Alex Portnoy’s mother?

CS: Well, she didn’t need to pull a knife on Alex, but she obviously needed to exert her maternal authority.

LC: You don’t think Alex would have voluntarily eaten his dinner, in a day or two, rather than starve?

CS: Why take chances?

LC: So not doing what’s good for one’s self is the moral equivalent of doing harm to another?

CS: Yes. Alex’s mother obviously suffered from anxiety caused by Alex’s refusal to eat his dinner.

LC: But Alex’s mother — being older and larger than Alex, though evidently not wiser — might have reflected on the ramifications of her threat. She didn’t really save Alex from starvation, but she did cause him to disrespect and hate her.

CS: What does that have to do with my version of the First Amendment?

LC: It has a lot to do with what happens to the cohesiveness of society, which you seem to value, when government forces people to behave in certain, non-neutral ways. You can figure it out if you think about it. But let’s move on. What about the rules that would require the acknowledgement of opposing points of view? Who would make those rules? In particular, with respect to web sites, who would select those “sites that deal with substantive issues in a serious way”? And who would identify “highly partisan” web sites that “must carry” icons pointing to those “sites that deal with substantive issues in a serious way”?

CS: An agency authorized by Congress to do such things.

LC: The FCC, for instance?

CS: The FCC might be the appropriate agency, but Congress would have to take its oversight role more seriously.

LC: Pressuring the FCC to pressure a broadcaster to stifle a certain radio personality isn’t enough for you?

CS: What?

LC: Never mind. Let’s assume it’s the FCC, whose members are appointed by the president, subject to confirmation by the Senate. The FCC is essentially a political body, composed of some mix of Democrats and Republicans.

CS: That’s inevitably the case with any regulatory agency.

LC: Right you are. So the FCC, or any agency newly created for the purpose, wouldn’t be neutral about such issues as what constitutes an opposing point of view, which sites deal with substantive issues in a serious way, and which sites are highly partisan.

CS: You have to rely on the judgment of those appointed to perform the task of making such evaluations.

LC: But not the judgment — or preferences — of purveyors of news and views?

CS: No, because they’re likely to be wedded to their positions and not open to opposing ideas.

LC: Unlike the political appointees on the FCC?

CS: Well, those political appointees would be scrutinized by Congress.

LC: Which, of course, is always balanced and neutral in its views, and which never tries to inflict particular points of view on regulatory agencies.

CS: You’re trying to get me to say that my version of the First Amendment would impose the judgment of politicians and their minions on the news and views of corporate and individual communicators.

LC: Isn’t that exactly what would happen?

CS: But we’re better off when our duly elected representatives and their agents make such decisions. That’s how deliberative democracy is supposed to work.

LC: Oh, we elect them to tell us how to live our lives?

CS: If that’s what it takes to make us better citizens, yes.

LC: You think coercion of that sort would make us a more cohesive society and would make us more appreciative of points of view that differ from our own?

CS: It’s worth a try.

LC: And where do you stop?

CS: What do you mean?

LC: How do you know when society is sufficiently cohesive and that an acceptable fraction of its members have become appreciative of differing points of view? What do you do if society simply refuses to cooperate with your program?

CS: Well, as to your first question, the FCC would simply monitor the content of broadcasts and web sites. As to your second question, the FCC might shut down uncooperative outlets or place them in the hands of an appointed operator, much as bankruptcy courts use court-appointed receivers to hand the affairs of bankrupt businesses. In the extreme, the FCC might have to resort to criminal sanctions — fines and imprisonment. But that probably wouldn’t happen more than a few times before communicators began to comply with the law.

LC: Or simply quit trying to communicate.

CS: Well, that’s always an option.

LC: I’m beginning to get the picture. Before we stop, however, I’d like to pose a hypothetical. Suppose the FCC were composed entirely of members who had a peculiar regard for the original meaning of the Constitution. Suppose, further, that we had, at the same time, a president who felt the same way about the Constitution, and that Congress was in the hands of a sympathetic majority. Now, in the course of monitoring web sites the FCC comes across your essay on “The Future of Free Speech” and deems it an extremist screed, subversive of the Constitution. What do you suppose would happen?

CS: The FCC should order The Little Magazine to post a link to Liberty Corner‘s commentary on my essay. Or it might order The Little Magazine to remove my essay from its site.

LC: Suppose the FCC did neither. Suppose the FCC gave the matter some thought and concluded that it would do nothing about your essay. Instead, it would hew to the original meaning of the Constituion and let you bloviate to your heart’s content.

CS: I would turn myself in to the FCC and demand to be sanctioned to the letter of the law.

LC: Oh, really? Can I count on that? I just want to be sure that you’re willing to live by the rules that you would impose on others.

CS: Most assuredly.

LC: Thank you very much for your (imaginary) time. That’s all for now. But don’t worry, I’ll be keeping an eye on you.

UPDATED BELOW

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?

UPDATE (04/05/05): Tom G. Palmer has an excellent take on Sunstein at NRO. (Thanks to Freespace for the tip.)

Cass Sunstein, a professor of constitutional law at the University of Chicago, is guest-blogging at The Volokh Conspiracy. His maiden effort, “The Greatest Generation, is about the New Deal. It’s not an auspicious start. Here’s the text of my e-mail to Sunstein:

In your first post at The Volokh Conspiracy, you wrote about FDR’s Second Bill of Rights: “The leader of the Greatest Generation had a distinctive project, running directly from the New Deal to the war on Fascism — a project that he believed to be radically incomplete. We don’t honor him, and we don’t honor those who elected him, if we forget what that project was all about.” I think that most readers of The Volokh Conspiracy know quite well what that project was all about. It was about turning Americans into wards of the welfare state — not intentionally, but in effect. And there were plenty of contemporary critics who knew what it was all about and tried in vain to warn their countrymen.

I know as much as anyone my age (63) can know about the Depression and the fears that it spawned in Americans. My parents and their many siblings were young adults during the Depression, and all of them had to go to work at an early age (when they could find work) because their families were poor. Knowing the members of my parents’ generation as I do, I reject the notion that “true individual freedom cannot exist without economic security and independence.” Economic security and independence are always relative matters. I had little economic security when I was 21, but I had plenty of freedom, as did my parents when they were 21. Freedom (in a society that has free political institutions) doesn’t depend on economic security, it depends on inner security (self-reliance) — a trait that many Americans of later generations lack because they have developed the habit of looking to government, instead of themselves, for the solutions to their problems. You are not free if you have sold your soul to the devil in exchange for a bit of gold.

It is fatuous to say that those who are hungry and jobless “are the stuff out of which dictatorships are made.” The United States didn’t become a dictatorship (despite what many Republicans said about FDR). Britain didn’t become a dictatorship, and on, and on. The notable exceptions (Germany, Russia, Italy, and Japan) arose from other, pre-Depression causes. Nevertheless, FDR finally got his way — posthumously — as Truman, Johnson, and others completed most of the work of the New Deal.

The New Deal was born of fear. FDR succumbed to that fear. Ironically, FDR said it best: “the only thing we have to fear is fear itself — nameless, unreasoning, unjustified terror which paralyzes needed efforts to convert retreat into advance.” It was fear that caused FDR to do exactly the wrong thing. Instead of letting the economy work its way out of the Depression, as it would have sooner than it did under FDR’s “stewardship,” he began the long descent into American socialism by turning the tinkerers loose on the economy. (Most of them were — and still are — lawyers and academics with no real idea about the business of business.) At the same time, he seduced most of the masses into dependence on government. The cycle of power and dependence begun by FDR has only gained strength over the years.

I have owned and managed businesses in the regulatory-welfare state of “economic freedom” that is FDR’s legacy. I’m here to tell you that Americans are worse off than they would be if the New Deal had died at birth. That’s FDR’s legacy, and I most decidedly do not want to honor it.