|The Future of Free Speech 10|
The First Amendment and Democratic Deliberation
There are profound differences between those who emphasise consumer sovereignty and those who stress the democratic roots of the free speech principle. For the latter, government efforts to regulate commercial advertising need not be objectionable; certainly, false and misleading commercial advertising is more readily subject to government control than false and misleading political speech. For those who believe that the free speech principle has democratic foundations, and is not about consumer sovereignty, government regulation of television, radio, and the Internet need not be objectionable, at least so long as it is reasonably taken as an effort to promote democratic goals.
Suppose, for example, that government proposes to require television broadcasters (as indeed it now does) to provide three hours per week of educational programming for children. Or suppose that government decides to require television broadcasters to provide a certain amount of free airtime for candidates for public office, or a certain amount of time on coverage of elections. For those who believe in consumer sovereignty, these requirements are quite troublesome, indeed they seem like a core violation of the free speech guarantee. For those who associate the free speech principle with democratic goals, these requirements are fully consistent with its highest aspirations.
There is nothing novel or iconoclastic in the democratic conception of free speech. On the contrary, this conception lay at the heart of the original understanding of freedom of speech in America. In attacking the Alien and Sedition Acts, for example, James Madison claimed in 1800 that they were inconsistent with the free speech principle, which he linked explicitly to the American transformation of the concept of political sovereignty. In England, Madison noted, sovereignty was vested in the King. But “in the United States, the case is altogether different. The People, not the Government, possess the absolute sovereignty.” It was on this foundation that any “Sedition Act” must be judged illegitimate. “[T]he right of electing the members of the Government constitutes . . . the essence of a free and responsible government,” and “the value and efficacy of this right depends on the knowledge of the comparative merits and demerits of the candidates for the public trust.”15 It was for this reason that the power represented by a Sedition Act ought, “more than any other, to produce universal alarm; because it is levelled against that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed the only effectual guardian of every other right.”
In this way Madison saw “free communication among the people” not as an exercise in consumer sovereignty, in which speech was treated as a kind of commodity, but instead as a central part of self-government, the “only effectual guardian of every other right.” A central part of the American constitutional tradition, then, places a high premium on speech that is critical to democratic processes, and is hardly hostile to government efforts to promote such speech. If history is our guide, it follows that government efforts to promote a well-functioning system of free expression, as through extensions of the public forum idea, are entirely acceptable.
history is not the only basis for seeing the First Amendment in light
of the commitment to democratic deliberation. The argument can be justified
by basic principle as well.
If we believed that the Constitution gives all owners of speech outlets an unabridgeable right to decide what appears on “their” outlets, the answer would be clear: government could require none of these things. But why should we believe that? Broadcasters owe their licenses to a government grant, and owners of Websites enjoy their rights of ownership largely because of the law, which creates and enforces property rights. None of this means that government can regulate television and the Internet as it chooses. But if government is not favouring any point of view, and if it is genuinely improving the operation of democratic processes, it is hard to find a legitimate basis for complaint. Indeed, the Supreme Court has expressly held that the owner of shopping centres — areas where a great deal of speech occurs — may be required to keep their property open for expressive activity.16 Shopping centres are not Websites; but if a democratic government is attempting to build on the idea of a public forum, so as to increase the likelihood of exposure to diverse views, is there really a reasonable objection, from the standpoint of free speech itself?
In a similar vein, it makes sense to say that speech that is political in character, in the sense that it relates to democratic self-government, cannot be regulated without a special showing of government justification — and that speech that is not political in that sense can be regulated on the basis of a somewhat weaker government justification. I will not attempt to offer a full defence of this idea here, which of course raises some hard line-drawing problems. But in light of the importance of the question to imaginable government regulation of new technologies, there are three points that deserve brief mention.
First, an insistence that government’s burden is greatest when it is regulating political speech emerges from a sensible understanding of government’s own incentives. It is here that government is most likely to be acting on the basis of illegitimate considerations such as self-protection, or protection of powerful private groups. Government is least trustworthy when it is attempting to control speech that might harm its own interests. When speech is political, its own interests are almost certainly at stake. This is not to deny that government is often untrustworthy when it is regulating commercial speech, art, or other speech that does not relate to democratic self-government. But we have the strongest reasons for distrust when political issues are involved.
Second, an emphasis on democratic deliberation protects speech not only when regulation is most likely to be biased, but also when regulation is most likely to be harmful. If government regulates sexually explicit speech on the Internet, or requires educational programming for children on television, it remains possible to invoke the normal democratic channels to protest these forms of regulation as ineffectual, intrusive, or worse. But when government forbids criticism of an ongoing war effort, the normal channels are foreclosed, in an important sense, by the very regulation at issue. Controls on public debate are distinctly damaging, because they impair the process of deliberation that is a precondition for political legitimacy.
Third, an emphasis on democratic deliberation is likely to fit, far better than any alternative, with our most reasonable views about particular free speech problems. However much people disagree about some speech problems, they are likely to believe that at a minimum, the free speech principle protects political expression unless government has exceedingly strong grounds for regulation. On the other hand, forms of speech such as perjury, attempted bribery, threats, unlicensed medical advice and criminal solicitation are not likely to seem to be at the heart of free speech protection.
An understanding of this kind does not answer all constitutional questions. It does not give a clear test for distinguishing between political and nonpolitical speech, a predictably vexing question. (To those who believe that the absence of a clear test is decisive against the distinction itself, the best response is that any alternative test will lead to line-drawing problems of its own.) It does not say whether and when government may regulate art or literature, sexually explicit speech or libellous speech. In all cases, government is required to have a strong justification for regulating speech, political or not. What I have suggested here, without fully defending the point, is that a conception of the First Amendment that is rooted in democratic deliberation is an exceedingly good place to start.
Cass Sunstein is Karl N. Llewellyn Distinguished Service Professor of Jurisprudence, University of Chicago. This article borrows from his forthcoming book Republic.com, to be published by Princeton University Press