The Limits of Limits

by Jeffrey Rosen | February 7, 1994

Democracy and the Problem of Free Speech
by Cass R. Sunstein
(The Free Press, 300 pp., $22.95)

For nearly a decade Cass Sunstein has presented himself as the benign face of free speech revisionism. In his academic writings, he has supported some restrictions on pornography and hate speech, and at the same time has avoided the rhetorical excesses of Catharine A. MacKinnon and the critical race theorists. He has endorsed some restrictions on the autonomy of broadcasters and newspaper owners, while questioning what he calls the more heavy-handed " command and control" solutions of the 1960s. Now Sunstein has collected his scholarly articles about free speech into a sustained argument, toned down some of the most censorial conclusions and thinned out the footnotes for a popular audience. His new book aspires to be the most moderate version of a thesis that, in the hands of less gifted and less fair-minded scholars, has seemed far from moderate. As Sunstein puts it: "Currently American law protects much speech that ought not to be protected. It safeguards speech that has little or no connection with democratic aspirations and that produces serious social harm."

Sunstein's argument stands or falls on a familiar premise: that the overriding objective of the First Amendment is to promote a rich and valuable public debate, rather than other, more individualistic values, such as personal autonomy and self-expression. This collectivist vision of the First Amendment, as Sunstein emphasizes, is not original. Alexander Meiklejohn, its most influential exponent, exalted the interests of the group over the individual in a well-known aphorism in 1960: "What is essential is not that everyone shall speak, but that everything worth saying shall be said."

Meiklejohn's heirs have spanned the ideological spectrum, from Owen Fiss to Robert Bork; but his epistemological arrogance--his notion that government can distinguish, and should distinguish, speech that is worth hearing from speech that is not worth hearing--was questioned by scholars more than a generation ago. As Robert Post observes in a recent issue of the Colorado Law Review, the very standards necessary to distinguish "valuable" speech from " worthless" speech are themselves matters of profound dispute. The Supreme Court, for its part, has been similarly skeptical of Meiklejohnism. In Cohen v. California (1971), the " the Draft" case, Justice Harlan recognized that democratic dialogue "may often appear to be only verbal tumult, discord and even offensive utterance." But Harlan understood that this "verbal cacophony" is merely a "necessary side effect" of the fact that "in a society as diverse and populous as ours," public discourse is organized not to accomplish anything in particular, but to ensure that heterogeneous visions collide.

Sunstein's effort to revive Meiklejohn at a time when the First Amendment debates have progressed far beyond Meiklejohn strikes a rather tinny, anachronistic note, much like an appeal to the Beatles in the age of Snoop Doggy Dogg. And the reasons he offers for the revival are not finally satisfying. His most provocative claim is that the text and the history of the First Amendment, broadly understood, support an emphasis on collective self-determination rather than individual autonomy. In a few paragraphs Sunstein equates his own Meiklejohnian conception of free speech with Madison's conception of free speech. Madison, he says, placed a "high premium" on the "deliberative function of politics"; and his placement of sovereignty in the people, rather than the government, "carried important lessons for freedom of speech." Throughout his book Sunstein refers to "the Madisonian First Amendment," "Madisonian aspirations" and "Madisonian goals."

Sunstein's impulse to anchor his theory in the text and the history of the First Amendment is admirable; and some of that history, he rightly emphasizes, is inconvenient for those who consider themselves First Amendment absolutists. But the notion that James Madison understood the free speech clause as a license for government to encourage and to regulate political debate is implausible. In the most literal sense, Madison understood the First Amendment as a principle of federalism. "Liberty of conscience and freedom of the press were equally and completely exempted from all authority whatever of the United States," Madison wrote, because Congress had been granted no enumerated power to control speech. Nor could such power have been granted: for Madison and the other First Amendment framers understood freedom of speech and freedom of conscience not as collective, political rights, but as pre-political, natural rights, retained by individuals during the transition from the state of nature to civil society. (In the notes to his speech introducing the Bill of Rights, Madison distinguished between "natural rights retained such as speech" and positive rights such as trial by jury.)

The dominant conception of free speech became even more libertarian during the debates that culminated in the Civil War Amendments. In the years before the war, abolitionists explicitly linked the natural rights of speech and conscience to defend dissenting anti-slavery authors such as Harriet Beecher Stowe. After the war, radical writers such as Ezra Heywood proclaimed "the Natural Right and Necessity of Sexual Self-Government"--the right of individuals to determine for themselves " when, where and how' their sexual organs will be used"; and they explicitly linked free speech with free love, gender emancipation and contraceptive reform. Between the Civil War and World War I, as David Rabban has noted, libertarian radicals questioned the constitutionality of the anti-obscenity Comstock Act of 1873, which was responsible for seizing 130,000 pounds of books, 194,000 pictures and photographs and 60,300 "articles made of rubber for immoral purposes." Of course, the libertarian impulse did not become accepted dogma for another century; and there is plenty of room for debate about how broad a conception of personal autonomy and self-expression can be plausibly ascribed to the Madisonian and Reconstruction understanding of speech as a natural right. But Sunstein's suggestion that Madison's First Amendment was a collectivist, regulatory and Meiklejohnian First Amendment seems, at the very least, open to question.

Ultimately, though, Sunstein does not pretend to rely very heavily on history. His reason for exalting "high value" political speech over "low value" non-political speech is, he says, pragmatic. An autonomy-based account of the First Amendment, he argues, would make it difficult to distinguish between different categories of speech, and would require more stringent protection for bribes, threats, perjuries, commercial speech and sexually explicit speech, categories that the Supreme Court currently recognizes as " low value." With scrupulous evenhandedness (and the weighing of counterarguments is the book's most impressive feature), Sunstein acknowledges the obvious response: Why not say that individual autonomy is genuinely expressed through art, literature, politics and sexually expressive speech, and far less so through commercial speech, perjury, bribes and the like? But Sunstein has no good answer to his own question, except to conclude vaguely that "a general catalogue of free speech interests might well produce a body of legal doctrine that is too complex, ad hoc and unruly."

 

Sunstein's inability to come up with a good reason for refusing to reconcile the First Amendment values of self-expression and democratic deliberation undermines his thesis that the government should have " reasonably broad power to regulate (among other things) ... disclosure of the name of rape victims and certain forms of pornography and hate speech." In the end, his neo-Meiklejohnism seems strategically tailored to allow some (but not too much) regulation of the kind of speech that Sunstein considers " low value."

But even the distinction between low and high value speech is hard for Sunstein to maintain. Uncomfortable with the radical implications of protecting only political speech, Sunstein adds two dramatic qualifications. First, he defines political speech so broadly that it need not have anything to do with politics at all: speech should be treated as political, he says, " when it is both intended and received as a contribution to public deliberation about some issue." This concession ultimately calls into question Sunstein's argument for a "two-tier" First Amendment, since virtually all speech can be considered "high value" under the expanded definition. Second, Sunstein embraces something that looks very much like a harm requirement: government cannot regulate speech of any sort, he says, simply because it disagrees with the ideas that have been expressed, or because it fears that people will be influenced by the ideas, or offended by them. But in that case, why not look only at the question of whether the speech causes harm and avoid the treacherous inquiry into value altogether? Again Sunstein acknowledges the question but fails squarely to answer it.

When it comes to applying his principles, moreover, Sunstein can be surprisingly inconsistent. In his discussion of hate speech, for example, he wants to distinguish between "racist and sexist speech that appeals to the deliberative capacities," which he says should be protected, and "mere epithets," which he says should be banned. But surely racial epithets can be " intended and received as a contribution to public discourse about some issue," in the same way that more eloquent racist appeals can be. Even more distressingly, Sunstein does not begin to identify any tangible harms that racial epithets inflict. After a windup about how racist speech cannot be banned merely because it is offensive, he subverts the principle by announcing blithely: "The injury to dignity and self-respect is a sufficient harm to allow regulation."

Sunstein's discussion of pornography is even less convincing. He argues that pornography should be regulated "only to the extent that it is associated with violence or coercion either in its production or its use." But when it comes to defining "violent pornography," or specifying its "real world harms," Sunstein is elusive. Without citing any empirical evidence, he argues that "many women, usually very young, are coerced into pornography." Then why not forbid coercion or mistreatment, as current state laws do, rather than carving out a gaping new exception to the First Amendment? "In this peculiar setting," responds Sunstein, "with low value speech and special enforcement problems, such an alternative would probably be a recipe for disaster," since "the victims will be reluctant to put themselves through the experience, and possible humiliation and expense, of initiating a proceeding." Therefore, Sunstein tentatively concludes, "if we really want to stop the abuse and coercion, we must accept regulation that is overly broad," banning voluntary as well as involuntary participation in pornography.

Second, Sunstein argues that "there is a causal connection between pornography and violence against women." In the single footnote that he devotes to this proposition, Sunstein cites the Meese Report on Pornography and two studies by Edward Donnerstein on which the Meese Commission purported to rely. But, as Nadine Strossen of the aclu recently pointed out, Donnerstein himself has sharply criticized the Meese Commission for misusing his work. At most, Donnerstein stresses, his data show that exposure to violent images, rather than sexually explicit ones, can lead to short-term attitudinal changes about rape. Donnerstein's data provide no support, he emphasizes, for the proposition that exposure to violent, sexually explicit images increases the probability that the viewer will actually commit harmful acts. Sunstein's casualness about evidence on the question that has been central to obscenity law since the 1950s is disappointing. As Sunstein says of Alexander Bickel's argument in the Pentagon Papers case: "In the end, his claims are based on empirical judgments that lack evidence."

The final "harm" that Sunstein identifies is that pornography promotes attitudes and behavior that are "degrading and dehumanizing" to women. As evidence, he cites the title of Hendrik Hertzberg's description of The Meese Report in The New Republic, "Big Boobs," as "a journalistic attempt at humor that quite inadvertently ... confirmed some of the anti-pornography movement's argument about the relationships among sexuality, pornography and inequality." Never mind Sunstein's own sense of humor; he has once again relaxed his earlier principle that speech cannot be regulated merely because people's attitudes are likely to be changed by the ideas it contains.

Although Sunstein would ban pictures and nude dancing, but not words, his discussion of pornography is not easy to distinguish in other respects from undiluted MacKinnonism. And because he refuses to specify precisely what he means by "material that combines sex with violence against women," it is impossible to say how broad a ban he is advocating. His book concludes that " a state should probably be allowed to extend its restrictions modestly further" than current law allows; but in a recent letter to the editor of The Nation Sunstein suggested that "my approach would probably allow less regulation of sexually explicit speech than does current law." In a prim coda, Sunstein emphasizes that nothing he has said argues in favor of regulating " the work of the gay artist Robert Mapplethorpe, which (among many other things) attempts to draw into question current sexual norms and practices." Well by that standard, why aren't simulations of heterosexual s&m covered as well?

More successful than Sunstein's treatment of hate speech and pornography is his treatment of corporate speech (he would vigorously protect it) and campaign finance reform (he endorses public funding without coercive taxation) . At the heart of the book, however, are the arguments about broadcast regulation that Sunstein introduced in a law review article in 1992 and then reproduced in his book The Partial Constitution; and which have already been discussed in these pages by Sanford Levenson (tnr, "Unnatural Law," July 19 & 26, 1993). The general thesis is familiar Meiklejohnism: government controls on the broadcast media, designed to ensure "diversity of view and attention to public affairs," would promote (rather than violate) First Amendment values by encouraging "political deliberation and political equality." Some of Sunstein's proposals are modest and useful, such as his suggestion that, instead of giving points to minority applicants for broadcast licenses, the fcc might instead give points to applicants of all races who promise to provide programs to groups underserved by the market.

But Sunstein's willingness to sacrifice the autonomy of individual media producers and consumers to his own notion of worthwhile public debate leads him to proposals that are more radical: "content review of children's television" by nonpartisan government experts; requiring commercial networks to provide "one hour of public affairs programming a night"; and a tax on advertising proceeds that would be used to subsidize public television. All of these proposals depend on Sunstein's premise that the "MacNeil/Lehrer NewsHour" should count as "higher value" speech than standard network fare-- the sitcoms, soap operas, "scandals, sensationalized anecdotes and gossip, often about famous movie stars and athletes," that Sunstein assails for having debased the newsstands and airwaves. But then Sunstein expands the definition of political speech so drastically that it is hard to see how he can draw confident distinctions between "MacNeil/Lehrer," "Roseanne" and The National Inquirer.

For all its intelligent synthesis, Sunstein's effort to revive New Deal managerialism at a time when information is increasingly decentralized seems peculiarly timed and unlikely to succeed. And despite his complaints about " astonishing economic and technological changes" that have debased the quality of democratic discourse, Sunstein's real objection is to popular culture, not mass technology. In many ways, as he acknowledges, the rise of c-span and talk radio has led to more extensive--and more widely participatory--public affairs programming than ever. What bothers Sunstein is that most people are not watching the shows that he thinks they should be watching--that they prefer "Studs" to c-span--and this is a choice he refuses to respect: Autonomy should not be identified with respect for private choice... When private choice is a product of existing options, and in that sense a product of law, the inclusion of better options, through new law, does not displace a freely produced desire.

This "truth will set us free" notion of free speech seems inappropriate for the First Amendment debate today. Far more promising in the age of the Internet would be a radically individualist conception of the First Amendment that would protect self-expression for its own sake, without hastening to make centralized judgments about value. The challenge for scholars who take constitutional text and history seriously--and so much of Sunstein's work has been exemplary in this regard--is to comb the ratification debates of the eighteenth and nineteenth centuries to determine whether James Madison's and Ezra Heywood's conception of natural rights can be plausibly extended to protect bumps and grinds.

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