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
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.
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.
William W. Van Alstyne, INTERPRETATIONS OF THE FIRST AMENDMENT (Durham, NC: Duke University Press,
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
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,