Permission to Speak Freely?

Democracy and the Problem of Free Speech, by Cass Sunstein, New York: The Free Press, 300 pages, $22.95

There's No Such Thing As Free Speech…and It's a Good Thing, Too, by Stanley Fish, New York: Oxford University Press, 332 pages, $25.00

Sometimes you can tell a book by its cover. So it is with the latest efforts from Cass Sunstein, a professor of law and political science at the University of Chicago, and Stanley Fish, an English professor and Milton scholar at Duke University who also teaches at Duke's law school. The titles of their books tell you most of what you need to know: Both are enemies of free speech as it is currently understood.

Fish is an academic who drives a Jaguar, disdaining what he terms the "ugly" Volvos and Saabs of his fellow professors; expects to be recognized by waitresses as "Stanley Fish, the guy who believes words mean anything you want them to mean"; never revises his first drafts; and candidly admits that his "forward time span is generally two hours. By that, I mean I tend not to think or worry about anything more in the future than two hours hence." Much of what Fish writes is not worth remembering that long anyway. One doubts he will have much impact on the future of free speech, except through those unlucky Duke students who happen upon his (elective, I hope) courses at the law school.

There is an ugly undercurrent to Fish's book, akin to intellectual McCarthyism. At one point, he attacks Nat Hentoff of The Village Voice, who writes frequently on the First Amendment. One of the most prominent civil libertarians in the country, Hentoff supports free speech and a free press even when they offend his own left-wing sympathies. So Fish calls Hentoff a "mouthpiece" for a "neo-conservative political agenda which is backed by huge amounts of right-wing foundation money provided by William Simon and others." Can't you just picture Bill Simon avidly reading The Village Voice? Elsewhere, Fish accuses Hentoff and others of "bringing a message a bypassed generation of academics wanted to hear: we will help you reclaim your legacy…we will put an end to the politics of race and sex on campus; we will put those women and blacks and gays in their proper places, at your feet."

I believe the precise intellectual term for all this is bullshit. It is, in a sense, a pathetic spectacle: an aging English professor driving a Jaguar to compensate for who knows what deficiencies and making ad-hominem attacks on free-speech supporters because, in the end, he really has nothing to say on the subject. Fortunately for Fish, Hentoff doesn't believe in defamation suits. The truth is, on the subject of civil liberties, Stanley Fish doesn't belong in the same sentence as Nat Hentoff.

Cass Sunstein is another matter. A well-known and widely respected constitutional law scholar, he writes clearly, probably doesn't publish his first drafts, and refrains from ad-hominem attacks. But like Fish, he labels his First Amendment opponents "absolutists" and tries to discredit them by arguing that the First Amendment doesn't mean what it says. For Sunstein, a telling point is that the First Amendment doesn't protect such "speech" as "price-fixing, contract making, firing someone for racial reasons, [or] placing bets on horses." Because the First Amendment does not protect all "speech" (or what Sunstein tries to pass off as "speech"), the "absolutists" are only at different points on the same slippery slope as the "regulators." They simply disagree as to how far down the slope government should go in regulating the press and suppressing speech.

And make no mistake, greater government regulation of the press and more government suppression of speech are at the core of what Sunstein eloquently advocates in his book. Fish offers no similar solutions, content to attack the straw man of free-speech absolutism. Sunstein has been critical of Fish's halfway approach. In a recent review of There's No Such Thing As Free Speech…and It's a Good Thing, Too for The New Republic, Sunstein writes that "the failure of free speech absolutism does not mean that there is no such thing as free speech…instead we need to develop principles by which we run a good system of free expression. The whole question, a central one in contemporary democracies, is how to proceed when some distinctions are inevitable. About this question, Fish has little to say."

It's a good thing, too, because Sunstein has more than enough to say. Having the government rather than individuals "run a good system of free expression" is about as far away as you can get from the plain language of the First Amendment without repealing it altogether. If ever adopted by the legislative or executive branch and upheld by the courts, Sunstein's views would do considerable damage to individual liberty. But preserving individual liberty against the encroachment of government does not appear to be one of Sunstein's main concerns.

Sunstein bases his approach to regulating speech and the press on what he terms a "Madisonian conception of free speech." Madison, he says, placed a "high premium…on political (not economic) equality and on the deliberative functions of politics. He understood the free speech principle of the American Constitution, for which he above all was responsible, in the light of these commitments. It, therefore, seems reasonable to describe the Madisonian conception as one that associates free speech with his distinctive understanding of politics." But as with absolutist, Sunstein uses Madisonian as a handy label, rather than an accurate historical reference. He writes, "I do not mean to say that all of the arguments in this book are directly connected with the views and aspirations of James Madison."

Fair warning, but it's the only one. Sunstein doesn't tell you that in a 1986 California Law Review article what he now calls the "Madisonian conception of free speech" was "the Jeffersonian model of free expression." In that piece, he specifically distinguished Jefferson's views ("the purpose of free expression is to insure to the extent possible that the citizenry will make informed decisions on public issues") from those of "Madison and other prominent writers at the time of the framing who argued for deliberation by representatives rather than by the citizenry as a whole."

It would have been interesting to see Sunstein's explanation for this change from Jefferson to Madison. That he didn't even disclose the shift lends support to the conclusion that he is using Madisonian as a label of convenience rather than principle. I suspect he ditched Jefferson because calling for greater government regulation of the press and more government suppression of speech was something few people would accept as a Jeffersonian principle. It would have been awkward to explain Jefferson's 1787 letter in which he declared: "This basis of our government being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter." (Sunstein might hesitate, but there's little doubt that he would choose government, and then rationalize the choice by arguing that a wise government could do a better job of publishing newspapers anyway.)

Madisonian has a nice ring to it, and Madison did draft the First Amendment. Moreover, his views are less well-known than Jefferson's, and Sunstein doesn't go out of his way to illuminate those beliefs of Madison which do not fit his thesis. For example, you find in Lucas Powe's book The Fourth Estate and the Constitution: Freedom of the Press in America (see "Fencing in the Fourth Estate," December 1991), but not in Sunstein's, that Madison's first draft of the First Amendment read: "The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable." Neither does Sunstein mention that, elsewhere, Madison had written that the press was "completely exempted from all authority whatever of the United States" by virtue of the First Amendment.

The press as a "bulwark of liberty" is not a concept Sunstein appears to be comfortable with. Instead, he ignores Madison's "complete exemption" of the press from regulation and harks back to the 1930s and proposes a "New Deal" that would do for a free press and the First Amendment what Roosevelt's New Deal did for free markets and the right of contract. Sunstein has a gauzy, romantic view of the New Deal and treats its ad-hoc experiments as if they were based on philosophical principles rather than short-term expediency. He relies on the now discredited view that the depression of the '30s was caused by a failure of laissez-faire economics; ignores the roles of protectionism, tax increases, and government restriction of the money supply in prolonging the depression; and fails to mention that it took a world war to rescue the economy from the New Deal.

Law professors like to use contrasting models in describing their preferred approach to the First Amendment. In The Fourth Estate and the Constitution, Powe contrasts the "Right to Know" model with the "Fourth Estate" model. The Fourth Estate model was articulated by the U.S. Supreme Court in its 1966 decision Mills v. Alabama: "The press serves and was designed to serve as a powerful antidote to any abuses of power by governmental officials and as a constitutionally chosen means of keeping officials elected by the people responsible to all the people whom they were selected to serve." Powe argues that the Fourth Estate model is more protective of individual liberty and a free press, while the Right to Know model can, in the wrong hands, be used to diminish freedom of the press–for example, by regulating and dictating what is published so the public can be "better informed."

Sunstein conspicuously avoids using the phrase free press in his book, despite the First Amendment's specific admonition that "Congress shall make no law abridging the freedom of speech, or of the press." Instead, he uses the phrase free speech to mean either the speech of individuals or the behavior of the press. Sunstein contrasts his New Deal/Madisonian model of "deliberative democracy" (which is similar to Powe's Right to Know model) with the "marketplace of ideas" model articulated by many people over the centuries, including John Milton, John Stuart Mill, and Oliver Wendell Holmes. Sunstein argues that the marketplace of ideas has failed because more people watch Inside Edition and Hard Copy than the MacNeil/Lehrer NewsHour. His solution is to "regulate the marketplace in the interest of promoting attention to issues and diversity of view." He concedes: "It would be tempting to think that my arguments amount to a broad and perhaps bizarre plea for 'more regulation' of speech."

It is not only tempting, it is well-nigh inescapable, especially when you consider that Sunstein's pole star is the Supreme Court's 1969 decision in Red Lion Broadcasting. That ruling upheld the so-called Fairness Doctrine, which says government should compel broadcasters to air, free of charge, "opposing viewpoints." The Court declared: "It is the right of the public to receive suitable access to social, political, aesthetic, moral and other ideas and experiences which is crucial here."

Red Lion is widely criticized by constitutional scholars, few of whom believe it would be upheld today, even with the anti-media bias of the Rehnquist Court. Among other faults, it was explicitly based on the alleged technological scarcity of broadcast frequencies contained in the "radio spectrum," an argument that even Sunstein concedes is no longer valid (if it ever was). Nevertheless, Red Lion offers a vision of the First Amendment that Sunstein admires.

While Sunstein focuses more on television because it reaches so many people, he believes the print media are also fair game for overt government regulation along Red Lion lines: "This argument applies most conspicuously to broadcasters, since the government has such an obvious role in allocating their licenses. But the argument has force for newspapers too. The property rights of newspapers also come from a legally conferred power to exclude others. The New York Times is given the legal power to exclude people who want to write for it. Simply as a matter of fact, that power is a creation of the state. It is a function of the law of property. If I want to write for The New York Times, and if I am stopped from doing so, it is in significant part because the Times is able to invoke the law of trespass to back up its exclusionary decision. Without the law of trespass, we would be in the state of nature, and we cannot purport to know what would be published in that strange and obscure place….If all this is right, some of the core commitments of current First Amendment law come under severe strain."

They sure do. Taking Sunstein's views to their logical conclusion, if The New York Times doesn't print what the government or some favored group wants (all in the name of fostering a "deliberative democracy," of course), then the government may well stand aside and not enforce any of the newspaper's property rights when a group of thugs confiscates whole editions of the Times with which it disagrees. It can't happen here? It already has. The University of Pennsylvania–under the stewardship of Sheldon Hackney, Bill Clinton's friend and the new head of the National Endowment for the Humanities–stood aside when issues of The Daily Pennsylvanian were confiscated by irate black students and did nothing except reprimand the security guards who apprehended them. The City of New York took a similar position during the Daily News strike, when union members violently interfered with delivery trucks.

Sunstein's reasoning suggests a government protection racket aimed at inducing newspapers to accept such "mild forms of regulation" as "government imposition of a right of reply; a system designed to diminish the power of advertisers over the content of newspapers;…a tax on advertising proceeds; and government subsidies, on a viewpoint-neutral basis, to newspapers that agree to cover substantive issues in a serious way." Sunstein limply attempts to appease the press by allowing that the "print media are substantively better" than the broadcast media in covering public affairs, in that "many newspapers do provide a kind of detail, depth, and substance that are lacking in the broadcast media." But he goes on to add, in case print journalists think he is going to let them off the hook, that "there can be no doubt, too, that the work of the print media might be substantially improved."

There is a word that aptly describes Sunstein's approach to free speech and a free press. It isn't Madisonian. Try, instead, Nixonian. As Powe notes in The Fourth Estate and the Constitution, in 1974 Richard Nixon "warmly supported" a federal reply law applicable to broadcast and print media alike because "it would both 'enhance' debate and encourage 'good and decent people' to run for office without fear of scurrilous attacks."

Better yet, why not just ban those scurrilous attacks, since they do nothing to enhance the Nixonian model of deliberative democracy? Sunstein probably wouldn't go that far down the slippery slope, but, armed with his arguments, someone will. Count on it.

Contributing Editor Michael McMenamin is a lawyer in Cleveland who represents broadcast and print media.