Democracy and the Problem of Free Speech

Cass R. Sunstein
New York: The Free Press, 1993
300 pp., $22.95 hc

Paul Trout
English
MSU-Bozeman

Cass Sunstein's Democracy and the Problem of Free Speech promises far more than it delivers. Sunstein, a prolific legal scholar touted by the New York Times to be "the most coveted young academic in the country," wants to fashion a coherent system of free expression that takes into account modern communication technologies and that provides principles for measuring the amount of freedom that should be accorded pornography, ethnic/racial insults, offensive public art, and several other forms of expression that now call into question the status and meaning of "free speech."

Unfortunately, neither goal of this strangely bifurcated book is fully achieved. Sunstein's critique of the media marketplace is unconvincing and his case for restricting certain forms of speech reflect not so much the "Madisonian" principles he evokes as an earnest commitment to social justice, "liberally" defined.

Sunstein's focus is on the relationship between the media--newspapers, television, radio--and political culture. For him, the media, increasingly owned and controlled by a dwindling number of privately owned conglomerates, are in the propaganda and bread-and-circuses business. They make sure that the American public is not exposed to radically new viewpoints and that it is distracted from serious issues by an endless array of tabloid topics, from Nancy Kerrigan's knee to John Bobbitt's penis. According to Sunstein, these corporations are not concerned with producing a "deliberative democracy among free and equal citizens" (251), but with protecting the political ideology of private property and "free speech" that gives them their power in the "free marketplace" of ideas. This perverts, according to Sunstein, James Madison's view that the First Amendment is to promote access to the information citizens need to deliberate crucial public issues.

To remedy this situation, Sunstein argues that the government should be allowed greater powers to regulate the marketplace to promote attention to public issues and provide a diversity of views. In what he calls a "New Deal" for free speech, he proposes a number of measures designed to increase a more open and broad discussion of public issues. For example, he suggests that television stations be required to air one hour of public-affairs programming a night; that broadcasters and newspapers be required to offer a "right of reply" to those who disagree with editorial stances; that advertising income be taxed to reduce the power advertisers now have over the content of newspapers; and that government subsidize higher quality television programs and "more serious and substantive" newspapers, on a "viewpoint-neutral" basis (107). He also suggests free-speech easements that allow groups to use government property--such as public parks--as public forums. Furthermore, he urges courts to make some areas now deemed "private property"--such as mailboxes, railroad stations, airports, and shopping malls--into open arenas for the exercise of free speech.

While some of these suggestions have a certain appeal--why can't mailboxes be repositories for more than properly stamped and canceled mail?--they are open to a number of practical, as well as theoretical and legal, objections. Since these have been made by Daniel E. Troy in his review in Commentary (January 1994, 64), I will content myself with pointing out that Sunstein provides no support for his main contention that the current "unregulated" marketplace is not serving the country's deliberative needs. Yes, there is a lot of nauseating tripe on TV, but as I occasionally channel-surf in search of the mindless wave, I am amazed at how many "talking heads" (of all kinds) I encounter between 2 and 36 on my basic cable package. Perhaps there could be more of them, as well as public-access channels for every ethnic, religious, political, and subversive group in the country, but with 22,000 newspapers and magazines, 11,000 commercial radio and TV stations (not counting cable), over 50,000 new books a year, and countless newsletters, salons, and private discussions groups, it is hardly obvious that "we do not have enough substantive discussion of public issues" and that "we are not exposed to sufficient diversity of view" (22, 25). And how has Sunstein determined what is "enough" and "sufficient" anyhow?

Furthermore, if the current system is inadequate as a means of debating crucial public issues, then why does Sunstein think--as he clearly does (73)--that his proposed "New Deal" of "regulatory requirements" can be given adequate and "considered debate"? If the system is as ineffective as he says it is, then his program can never be adequately debated; if it can be, then why does he believe that the system needs to be "restructured"?

And one would think that a book that presumes to fashion a system of free expression for the "increasing range of expressive outlets" provided by the new information technologies would have something to say about computer networks, interactive TV, radio talk and call-in programs, 900 lines, virtual reality technology, CD Roms, video arcades, and burgeoning cable options such as National Empowerment Television. But Sunstein theorizes on as if this were still the Age of the Quill. He does not even mention Turner Broadcasting System v. Federal Communications Commission, a case which will decide whether the cable industry's free-speech rights are being violated by a 1992 federal law that requires cable systems to set aside up to one-third of their channels for local commercial broadcast, and additional slots to nonprofit, educational programs. In sum, what Sunstein has to say about the deficiencies of the marketplace is unsubstantiated, contradictory, and uninformed.

In the second part of the book Sunstein attempts to demonstrate--with limited success--how Madisonian principles would resolve some of our most troubling free-speech controversies. The Madisonian view, he explains, holds that political speech should be entitled to the utmost protection, while "lower-value" speech can be more easily restricted. Sunstein lumps a great deal under the term "political" speech, including almost all literature and music. Any communication that is "political" or deliberative in the widest sense should be accorded considerable, but never absolute, protection. Misogynistic tracts yes, violent pornography no. In a lower tier are all communications that do not advance deliberation on civic issues, and which thus can be restricted using more lenient standards of harm. Not surprisingly, Sunstein relegates to this lower tier not only libel and the disclosure of military secrets (not much argument here), but violent pornography and racial/ethnic epithets--precisely those forms of speech that many liberal lawyers and intellectuals now want to control. What Sunstein attempts to provide is a respectable rationale for doing it.

But Sunstein's parsing of speech has more to do with "sensitivity" than with Madisonian principles. Take, for instance, his claim that the disclosure of the names of rape victims "has no real political content" but is merely a way for the media to exploit victims and titillate readers and viewers (163). If "political" still means here "deliberative," then this claim is absurd. The very issue of whether or not to disclose rape-claimants' names is highly political, or Sunstein would not be dealing with it. And whether or not the name is disclosed, the decision itself will communicate broadly "political" messages about the social construction of rape and about the legal rights of the victim and the accused. Moreover, Sunstein--a law professor--forgets that an accusation (or even indictment) of rape does not mean that there is indeed a "rape victim." Before that term can be used legitimately, a series of legal events must occur, including a fair and open trial in which the accuser proves that her (or his) accusation against the accused in true. In other words, both parties are subject to a deliberative process requiring disclosure of relevant information, which certainly should include the names of the accused and the accuser. Admittedly, publication and telecasting of accusers' names might deter some women (even more likely, men) from pressing rape charges, but it might also elicit information that discredits (or substantiates) the accuser's claim--thus assisting the operation of a fundamental democratic institution. The notion that Madisonian principles permit the media to disclose who has been accused but not who has done the accusing owes more to gender politics than to a principled and consistent interpretation of the First Amendment.

Even less convincing is Sunstein's argument for why we must restrict certain forms of hate speech. Although he opposes campus speech codes and laws that attempt to regulate "racist" statements that are part of the exchange of ideas, he supports outlawing racial epithets. He repeats the familiar arguments: such words injure the "dignity" and "self-respect" of minorities, and thus cause "sufficient harm to allow regulation" (198), and they intimidate minorities into silence. But even this moderate position--shared by former Solicitor General Charles Fried, Charles Kors, and D'Souza ("Students shall not yell racial epithets at each other")--seems destined, however well intentioned, to sink in semantic quicksand. Problem number one: which "epithets" shall be forbidden? Let's say we agree on "nigger," "faggot," and "kike." Should we add "wop," "mick," "spic," slant-eye," "bitch," "rag-head," "squaw," "wet-back," "jigaboo," "queer," "dyke," "ex-slave," and "water buffalo"? Given people's linguistic inventiveness and touchiness, the list of forbidden epithets would grow ad infinitum. Grievance consciousness would demand it. Even the word "Jew" might have to be added to the list, at least according to WordPerfect 6.0's Grammatik, which warns us to "avoid using this offensive term." Indeed, the "sensitivity check" program of Microsoft Word for Windows even flags "dame," as in "University of Notre Dame." And would Sunstein's regulations also outlaw those epithets that minorities use to brand and intimidate their own members, such as "Uncle Tom," "Oreo," "apple," and "banana"? Would they be outlawed only if whites used them?

Sunstein does not understand the difficulties posed by his good intentions. He ignores the problem of what to do with inflammatory epithets that are embedded within statements that do communicate ideas, as in racist flyers and in this review, or in utterances that mention epithets but do not assert or avow or declare. And he leaves unexplored such problematic utterances as "Death to all Arabs!"--a dangerous and intimidating statement that expresses an idea and yet avoids using an insulting epithet.

Sunstein is especially concerned about one specific epithet--"nigger--because of its historical association with slavery and lynching. This "fighting word," he feels, is particularly destructive and intimidating, being not just an offensive insult but a "threat" of physical violence. There are several problems with this view. How can the simple utterance of an epithet constitute a speech crime? The epithet, as any other word, gets its meaning from and has to be interpreted within, a complex social and emotional context that takes into account who is using it, on what grounds, with what tone of voice, with what accompanying gestures and facial expressions, with what intent, and with what effect. Even the most inflammatory epithet can be used inoffensively, humorously, affectionately, and defiantly (as in "Queer Nation" and "Dykes on Bikes"). One can imagine a myriad of contexts in which the word "nigger" does not convey a "threat" of imminent attack, or even exclusion or subordination. Yet Sunstein makes no effort to provide a reliable standard for identifying illegal "invective" from protected uses of racial "epithets." Such standards are sorely needed. At one school, an anti-racism poster that listed several dozen offensive slurs was itself declared to be, on this ground, blatantly offensive and racist. A professor who used the word "nigger" in a hypothetical example was chastised and some black students demanded that the n-word be forever banned from all classrooms. Of course, if this were done, hundreds of American plays and novels against racism would be excluded, including the works of Malcolm X.

Which brings up another objection to Sunstein's treatment of the word "nigger." If the term were as charged with as much humiliating history and menace as he says it is, how can blacks use it so freely and often good-naturedly? I grew up in Detroit's inner city and I know how frequently and easily this word was bandied about by my black friends, sometimes to pique but sometimes to compliment. And my understanding of what this word means was complicated this summer when an African-American child I was having a water-fight with laughingly called me "nigger"--and I am white. Sunstein, I suggest, exaggerates the power this word has to intimidate, traumatize, or silence contemporary blacks. It certainly has not silenced "Niggas with Attitude" or Khalid Abdul Muhammad. Again, everything depends on context. Which means that even the word "honky" can be a very intimidating epithet when shouted by an "oppressed group" in a subway.

Although Democracy and the Problem of Free Speech is severely flawed, it is not without value. Happily, the book drives another stake into whatever is left of free-speech absolutism by placing the wording of the First Amendment within historical context. It also explains the many subtle and pernicious ways in which economic considerations do fetter "free speech." Furthermore, it sensibly argues for restricting violent pornography (though, oddly, not violent homosexual pornography) because of the harms it does to women (and, I would add, to men). And, it makes a strong case that this country must develop a more nuanced, flexible, and rational system of free expression for determining what is and is not protected expression. It is to be hoped that this task can be accomplished--as the title of James Hunter's new book puts it--before the shooting begins, or gets any worse.


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