Book Review: DEMOCRACY AND THE PROBLEM OF FREE SPEECH

ScottLondon.Com ^ | sometime after 1993 | ScottLondon.Com

[bvw]

DEMOCRACY AND THE PROBLEM OF FREE SPEECH
By Cass Sunstein
The Free Press, 1993, 300 pages

According to Sunstein, the First Amendment protects many forms of speech that should not be protected -- commercial speech, libelous speech, speech that invades privacy, and certain forms of pornography and hate speech -- while it ignores genuine victims of defamation and in some cases gives the government too much power over speech. These inconsistencies are reflected in the great deal of attention given to free speech issues in recent years. Sunstein maintains that modern economic and technological changes, together with shifting popular attitudes about various forms of speech, such as campaign finance, hate speech, and government art funding, call for a "large-scale reassessment of the appropriate role of the First Amendment in the democratic process."

Contemporary interpreters of First Amendment law have lost sight of the primary rationale behind freedom of expression, in Sunstein's view, namely the principle of "government by discussion." The framers realized that the only way the people can be sovereign while at the same time subject to the law was to organize government around a system of deliberative discussion. As James Madison explained, freedom of expression is the cornerstone of the whole system of American government since it ensures discussion and debate among people of genuinely different perspectives and positions. The process of deliberation, he pointed out, encouraged the development of general political truths. "A distinctive feature of American republicanism is extraordinary hospitality toward disagreement and heterogeneity, rather than fear of it," Sunstein writes. "The framers believed that a diversity of opinion would be a creative and productive force."

The First Amendment, understood in this light, is not so much a matter of protecting rights as ensuring sound public judgment through the process of public deliberation. The true meaning of the law should therefore be determined, and limited, by matters having to do with the political process (broadly defined). Political speech should be encouraged since it is essential to the functioning of democracy, while non-political speech should be less fully protected when it conflicts with other interests and rights, such as privacy.

Sunstein proposes what he calls a "New Deal" for speech, a reformulation which abandons the prevailing "marketplace of ideas" model of free expression, in favor of a Madisonian conception based on deliberative democracy. In practice, this would mean, among other things, free media time for political candidates, federal guidelines for the coverage of public issues, and curtailment of the ability of the wealthy to buy access in the media. Taken together, he says, these proposals "would bring about significant changes in the legal treatment currently given to many free speech issues."

This is a carefully argued and very important book, in my view. It's high-time we had a contemporary reassessment of the First Amendment.

[bvw]

Currently being taught in colleges near you.

The quote thrown around is "Democracy means government by discussion, but it is only effective if you can stop people talking." -- Clement Atlee, British Lord.

Some of the "intellectual" underpinnings of Campaign Finance Reform.

[Search4Truth]

I heard recently, and it struck a cord of truth with me, that the solution to objectionable free speech, is more free speech.

[One More Time]

The First Amendment:
The Right to Write and to your Rites.

[IronJack]

I always get nervous when the feeble minds of this century betake themselves to improve on the genius of our forefathers. The First Amendment is just fine as it is, and as it has survived these 200 years, with its free speech provisions intact.

I'm much more concerned about the Establishment Clause, in whose name so many outrages have been committed against the church.

[A Vast RightWing Conspirator]

The First Amendment states: "Congress shall make no law [...]abridging the freedom of speech, or of the press;..."

Now, it would take a judicial Houdini to find some way of legally restricting the freedom of speech, or of the press.

[freeeee]

Despite the accelerating loss of freedoms occurring lately, I had thought that at least the most basic, the most inherently American of all of them, freedom of speech, might be spared.

I had once thought that Americans were strong and wise enough to not tolerate, for one moment, anyone who would take this most precious of liberties, paid for with the blood sweat and tears of so many.

But I was wrong. Americans possess no such spine. People get the government they deserve, and by electing and re-electing the tyrants we now have, the American people have shown they richly deserve to have some thug stick a gun in their face and tell them to "SHUT THE HELL UP OR ELSE".

If there is any consolation to me, it's that the weak willed sheep that inhabit this country are ultimately responsible, and they will certainly be the ones to reap what they have sown.

Sheep, I hope you enjoy what you have wrought, for you truly deserve it!

[thinktwice]

"It is difficult to free fools from the chains they revere." -- Voltaire

[wharfrat]

Get democracy out of it, A Constitutional Republic which is what we are is what eliminates the "mob rule" interferrence!
Then we can freely debate the issue of Free Speech. A Representative form of Government best serves our intrests. The principle of Free Speech is a guaranteed Right of the Republic for which it stands.

[Unam Sanctam]

Sunstein is simply a representative of the totalitarian academic left that wants to justify free speech restrictions on conservatives and traditional religious believers.

[steve50]

Well said. We were never designed to be ruled by the mob mentality, that's why we were given a Constitution and the warnings to guard it's protections. Maybe someday we will understand what allowing the document to be "living" has done to this nation.

[kcar]

"The First Amendment, understood in this light, is not so much a matter of protecting rights as ensuring sound public judgment through the process of public deliberation." Maybe free speech is just a collective right after all (but not the Republican collective, just the progressive one).

Here comes the "true meaning" of a set of very simple concepts, set forth by people who wanted to ensure that individual rights trumped the exigencies of temporary governors.

The very first freedom: Say-write-publish whatsoever you will.
The second: Carry effective weaponry to ensure continuation of the first.

[bvw]

You say that they would recast the Constitution so that "free speech is just a collective right after all", just as they have done with the right to bear arms. (Witness the 9th Circuit's recent decision.)

Wow, impressive observation. Frightening, but resonant.

[kcar]

Here's another thought: ALL your rights are belomg to us.

[bvw]

Well, actually if you track into the "intellectual" discussion going on in academia and NGO-ville, you will find a mighty effort to eliminate "rights" as pesky impedements to civil discussion, and to recast the whole founding philosophy of the Constitution and such in terms of "government by discussion", meaning that anything goes as long as somebody (a charmed and select group of somebodies) talks about it publicly. In other words some sort of meta-NPR telling the populace what they should be thinking about.

That early light of Liberty -- John Stuart Mills -- seems to have coined that phrase "government by discussion", to highlight the benefits of open deliberative bodies in making laws over more tribunals, monarchs and dictators more limited in number and access. The term has been co-opted by the tweed elites, per Lord Atlee's epigram I gave above.

[kcar]

These plots sicken. If sending your children to and through college is the American dream, we may be in need of stronger caffein. No way do I want to spend a fortune paying these clowns - and they're ALWAYS clowns, to hate the functional world they are supposedly being sent there to learn to manage.
Talk about a housing bubble? The post-secondary education-bubble is HUGE - meaning vastly overpriced and befitting an economic correction - pop go the weasels!

[Lizard_King]

Sunstein proposes what he calls a "New Deal" for speech,

Anyone who considers "New Deal" an apt analogy for the reforms they propose is no friend of liberty. This despicable leftist is just another brazen example of the idiots that populate academia; it's not free speech that has a "problem", but rather that too often those that most loudly exercise it are not qualified to opine on the weather, much less on serious issues. The absence of counter-speech to the likes of the NYT and their liberal cronies in universities and the media is alarming, and it is fortunate that the internet remains a free-for-all.

[nathanbedford]

Freedom of expression: Next to Man's God granted right to own and dispose of his property and to worship his God, a first (or perhaps now the) last remaining line of defense against statism.

Small wonder the Liberals now seek to "redefine" it. No doubt some redefinitions will prove more equal than others.

[bvw]

Well, save that the last remaining line would be Divine intervention of His own accord ... we agree.

[AshleyMontagu]

Definition of free speech according to Sunstein and his ilk:
Free Speech is that which I approve of.