Democracy and the Problem of Free Speech, page 1
DEMOCRACY AND THE PROBLEM OF FREE SPEECH
CASS R. SUNSTEIN
The Free Press
New York London Toronto Sydney Tokyo Singapore
Copyright © 1993, 1995 by Cass R, Sunstein
All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without permission in writing from the Publisher.
The Free Press
A Division of Simon & Schuster Inc.
866 Third Avenue, New York, N.Y. 10022
www.SimonandSchuster.com
First Free Press Paperback Edition 1995
Printed in the United States of America
printing number
2 3 4 5 6 7 8 9 10
Library of Congress Cataloging-in-Publication Data
Sunstein, Cass R.
Democracy and the problem of free speech/Cass R. Sunstein
p. cm.
Includes index.
ISBN 0-02-874000-9
eISBN 13: 978-1-4391-0535-1
ISBN 13: 978-0-0287-4000-3
1. Freedom of speech. 2. Freedom of speech—United States. I. Title.
JCS91.S86 1993 93-5462
323.44′3—dc20 CIP
Contents
Preface and Acknowledgments
Introduction
1. The Contemporary First Amendment
2. A New Deal for Speech
3. Broadcasting, Politics, Liberty
4. Does the First Amendment Undermine Democracy?
5. Political Speech and the Two-Tier First Amendment
6. Discrimination and Selectivity: Hard Cases, Especially Cross-burning and Hate Speech
7. More Hard Cases: Pornography, Government Arts Funding and Corporate Speech
8. Deliberative Democracy
Afterword: The Future of the First Amendment
Notes
Index
Preface and Acknowledgments
HERE ARE SOME RECENT free speech events:
1. A television network plans to show a movie on the topic of abortion. Many advertisers refuse to sponsor the movie. The network decides to run the movie anyway, but it loses a lot of money.
2. A government agency funds artistic projects. In response to a public outcry, it withdraws money from projects that appear to endorse causes associated with feminism and with homosexuals.
3. A male employer makes various suggestive comments to a female employee. He tells her that if she rejects him, she will be fired. She files a complaint with a government agency, contending that her civil rights have been violated. In response, he claims that his right to freedom of speech allows him to say whatever he likes.
4. American companies propose to sell technology to other nations. Some of the technology consists solely of project descriptions, amounting to “words”; but these words could be used to enhance the military capacities of unfriendly countries. The American government tries to stop the exchange. The companies complain that any restriction would violate the First Amendment.
5. The federal government contemplates various methods for improving democracy in America: imposing legal restrictions on private contributions to candidates and to political action committees; allowing free air time for candidates; and prohibiting broadcasters from disclosing polling results during voting. Critics say that any such reforms would abridge free speech.
6. A well-known tobacco company runs a series of advertisements in which black civil rights leaders from the 1960s say that free speech is important to liberty in America. The advertisements are clearly an effort to lay the groundwork for a constitutional attack on legislative efforts to stop advertising for tobacco products.
7. For many years, the Federal Communications Commission required broadcasters to cover public issues and to foster diverse views. The Commission now concludes that these requirements flatly violate the First Amendment, since they tell broadcasters what they may say.
8. In the aftermath of deregulation of the airwaves, there is an explosion of advertising on television for children. Congress proposes the imposition of a ceiling of about twelve minutes of advertising per hour. The President says that the proposal would violate the First Amendment.
9. At the Kitty Kat Lounge in Indiana, much of the entertainment consists of nude dancing. A prosecutor brings suit against the owner of the lounge, contending that nude dancing violates Indiana’s ban on nudity in public places. The owner claims that his First Amendment rights would be violated by applying the ban, and he brings this objection to the Supreme Court.
10. There is an increase in incidents of verbal attacks on women, blacks, and homosexuals on the campus of a large university in the Midwest. The university enacts a rule prohibiting hate speech on campus.
11. Various companies create “900” numbers, in which people pay $2 per minute to receive astrological or romantic advice, or to hear prerecorded statements from celebrities. The Federal Communications Commission tries to regulate “900” services to prevent fraud and abuse of children. The relevant companies complain that any regulation would violate the First Amendment.
We are in the midst of a dramatic period of new thought about the meaning of free speech in America. In this book, I deal with these and many other First Amendment problems. My goal is to set out a general understanding of the purposes of a system of free expression, an understanding that will enable us to address the novel challenges to our most precious constitutional right.
The origins of this book lie in “Free Speech Now,” 59 University of Chicago Law Review 255 (1992), an essay that found a somewhat different incarnation as chapters 7 and 8 of The Partial Constitution (Harvard University Press, 1993). I am grateful to the University of Chicago Law Review and to Harvard University Press for permission to reprint some of that material here. But this book represents a new departure. Although I have retained a number of the original discussions, the basic argument has been much changed. Most sections have been greatly expanded. I have also added new discussions of many topics, including hate speech, corporate speech, and problems of discrimination in free speech law. There is much more detail here about existing fare on the broadcasting media and about possible reform strategies. In addition, my understanding of several areas has changed a great deal, and the discussion has had to be revised accordingly. I have also tried to make the present volume less technical and more broadly accessible. (Readers interested in how the present volume relates to many other issues in constitutional law and theory might consult The Partial Constitution.)
Many friends and colleagues have helped with this book. I cannot thank them all here. But I would like to express a special debt to my editor, Bruce Nichols, for his encouragement and for excellent editorial suggestions; to Gabriel Gore and Richard Madris for research assistance; to Marlene Vellinga for secretarial help; and to the following friends and colleagues for invaluable conversation and comments: Joshua Cohen, Jon Elster, Robert Entman, David Estlund, Stephen Holmes, Elena Kagan, Larry Lessig, Catharine MacKinnon, Martha Nussbaum, Richard Posner, Frederick Schauer, Geoffrey Stone, and David Strauss. For financial support, I am grateful to the Russell Baker Scholars Fund and the James H. Douglas, Jr. Fund for the Study of Law and Government. My final debt is to my students at the University of Chicago, especially the law students in the winter term of 1993, whose comments prompted me to revise the book substantially.
Introduction
“CONGRESS SHALL MAKE NO LAW ABRIDGING the freedom of speech, or of the press.” More than anything else in the Constitution, the First Amendment’s protection of free speech and free press symbolizes the American commitment to liberty under law. These fourteen words have inspired and provoked not only Americans, but also reformers and constitution-makers all over the world. By prohibiting any law “abridging the freedom of speech,” the American Constitution is understood to impose a formidable barrier to official censorship—perhaps the most serious danger to democratic government. The First Amendment, it is often said, forbids government from ordaining any official orthodoxy. It prevents majorities from entrenching their own preferred positions. It even guarantees a large number of outlets for free expression.
All this is conventional wisdom. It contains a good deal of truth. But in light of astonishing economic and technological changes, we must now doubt whether, as interpreted, the constitutional guarantee of free speech is adequately serving democratic goals. It is past time for a large-scale reassessment of the appropriate role of the First Amendment in the democratic process. In this book I propose such a reassessment—one that adapts an old amendment to new controversies and technologies for which the past is an uncertain and perhaps even treacherous guide.
On Text and History
The Constitution does appear to offer broad protection to speech; but standing by itself, it is much more ambiguous than it first appears. The current state of free speech law in America cannot really be attributed to the Constitution’s words, or even to the aspirations of the people who wrote them and made them a part of America’s founding document. To some readers, the words seem quite rigid, absolute, demanding, clear. On reflection, however, they are anything but that. What does it mean for Congress to “abridge” the freedom of speech? Does regulation of libelous, obscene, or defamatory speech necessarily count as an “abridgement”? How about a ban on attempted bribery , or threats, or perjury, or nude dancing, or false commercial advertising? Or what about speech that most people think entirely unconnected with the First Amendment—price-fixing, contract-making, firing someone for racial reasons, placing bets on horses? Free speech absolutists claim the authority of the supposedly plain meaning of the First Amendment, but they cannot fairly rely on the text alone. By themselves, the words “abridge” and “freedom of speech” do not tell us how to handle disputed free speech cases.
If the text is ambiguous, perhaps the history can help. But if we are especially concerned about the specific views of those who wrote the First Amendment, we will find many puzzles, and we will probably end up with what everyone would consider an unacceptably narrow understanding of the free speech principle. We will find, for example, that some framers thought that many government restrictions on free speech were not really “abridgments.” As a matter of history, the notion of an “abridgment” was a limited one; it was not coextensive with the notion of a restriction.1 The word “abridgment,” read in light of history, therefore introduces a large degree of ambiguity at the outset.
And—a separate question for interpretation—what does the history say about “the freedom of speech”? If we turn to history, we will find some evidence that in the founding period, the phrase “the freedom of speech” was a term of art, one with a highly specialized meaning. The term may well have referred primarily or even exclusively to protection against what are described as “prior restraints.” Prior restraints consist mainly of two things: (1) licensing systems before speech can reach the public (for example, a requirement that you submit your sexually explicit book to a licensor before you can publish); and (2) courtordered injunctions against expression, banning speech in advance (for example, a court order stopping you from printing a dissident political tract).
A criminal penalty, even a large one, is not a prior restraint. If “the freedom of speech” is limited to protection against prior restraints, subsequent punishment for speech raises no constitutional issue at all. To say the least, this is a jarring conclusion. If the framers intended the free speech principle to apply only to prior restraints, the First Amendment, as originally understood, offered precious little protection against what amounts to official censorship. There is a major obstacle to free speech if someone who utters a criticism of the President is subject to a sentence of life imprisonment; but there is no prior restraint. Most censorship occurs through subsequent punishment, and perhaps the framers did not intend to ban subsequent punishment at all. If this is so, the history reveals an extraordinarily narrow free speech principle.
Thus William Blackstone, a large influence on the framers, wrote:
[W]here blasphemous, immoral, treasonable, schismatical, seditious, or scandalous libels are punished by the English law … the liberty of the press, properly understood, is by no means infringed or violated. The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraint upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public …; but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity.2
Thus Joseph Story, probably the leading early commentator on the Constitution, could write:
It is plain, then, that the language of this amendment imports no more, than that every man shall have a right to speak, write, and print his opinions upon any subject whatsoever, without any prior restraint, so always, that he does not injure any other person in his rights, person, property, or reputation; and so always, that he does not thereby disturb the public peace, or attempt to subvert the government. It is neither more nor less, than, an expansion of the great doctrine … that every man shall be at liberty to publish what is true, with good motives and for justifiable ends.3
The view that the First Amendment is limited to prior restraints has considerable historical support; nonetheless, it is probably too extreme as a simple matter of history. Many members of the founding generation believed that the First Amendment banned at least some forms of subsequent punishment. But even if this is so, it seems clear that during the founding period, much of what we now consider “free speech” was thought to be unprotected, and that government could regulate much speech if it was harmful or dangerous. Consider the infamous Sedition Act of 1798, which broadly prohibited “false, scandalous, and malicious writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States.” The Sedition Act operated as a formidable barrier to public criticism of government, including dissenting opinions published in popular newspapers. In contemporary textbooks, as well as in modern Supreme Court opinions, the Sedition Act is commonly described as an act of evil and unquestionably unconstitutional censorship. But it is highly revealing that soon after the founding period, many and perhaps most people thought that the Act was constitutionally acceptable.4 If many of the founders did not think that the Sedition Act offended the First Amendment, we cannot now claim that the constitutional protection of free speech, understood in its original context, is a self-applying, rigid protection of expression.
All this means that there is much ambiguity in the seemingly clear text. The text of the First Amendment is not rigid and it is not absolute. The history confirms the ambiguity of the text. It shows that the founders’ conception of free speech was a good deal narrower than ours, though it does not reveal a clear-cut understanding of what speech was protected and what speech was not. A simple lesson emerges from all this. However tempting it is to pretend otherwise, the hard First Amendment cases cannot plausibly be resolved simply by invoking the text or history of the First Amendment. As a guide to our current dilemmas, insistence on the text is basically unhelpful, even fraudulent. I will be insisting on this point throughout. When we consider the issues that now cause great controversy—like campaign finance laws, rights of access to the media, conditions on funding of the arts, scientific speech, pornography, hate speech, commercial speech—we cannot rely on the text alone.
How should we deal with the history? I suggest that the First Amendment should be taken to set out a general principle of free expression, and that the contours of that principle should not be limited to the particular understandings of those who wrote and ratified it.5 For one thing, those understandings are ambiguous. For another, it is unclear that the people who wrote the First Amendment wanted their particular views to control the future. For yet another, it is unclear that the framers’ interpretive views should be binding on us even if the framers wanted them to be. Without circularity, we cannot say that the framers’ views are binding simply because they intended them to be. Some sort of argument must be offered to support the view that the framers’ particular views control us; and at least in the context of freedom of speech, it is not easy to see how that argument could be made persuasive.6
The proposition that the Constitution sets out general principles rather than particular historical understandings is of course controversial, and I will not defend it in detail here. It is notable that in the First Amendment area, even those who usually emphasize history tend to see free speech as a broad and evolving concept.7 In any case, most Americans—including judges of otherwise different persuasions, legislators, presidents, indeed ordinary citizens—understand the free speech principle in this way. I will be relying on that understanding here. This does not mean that history is irrelevant; on the contrary, I will make historical arguments throughout. It means only that the concept of free speech should take the original constitutional vision at a certain level of generality and abstraction. The concept should not be tied to historically specific understandings if those understandings turn out to be indefensibly narrow as a matter of principle.
In this light, the arguments I will offer should be understood as an effort to give appropriate content to the ambiguous term “the freedom of speech,” not to ignore the First Amendment or to call for a new constitutional amendment. If the free speech principle is to extend beyond the framers’ narrow understanding—and everyone seems to think that it must—it is we who must decide on its content and structure.
