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  The Future of Free Speech — 11  

  Looking Back
  Vol II : issue 2

  Amit Chaudhuri
  Cass Sunstein
  Dibyendu Palit
  Vinay Lal
  Only in Print

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Cass Sunstein


My goal here has been to understand what makes for a well-functioning system of free expression, and to show how consumer sovereignty, in a world of limitless options, is likely to undermine that system. I have also attempted to show that the First Amendment should not be taken to ban reasonable efforts, on the part of government, to improve the situation. I do not intend to offer a set of policy reforms or any kind of blueprint for the future. But it will be useful to offer a few ideas, if only by way of introduction to questions that are likely to engage public attention in the first decades of the twenty-first century.

Identifying the Problem

In thinking about reforms, it is important to have some sense of the problems that we aim to address, and of some possible ways of addressing them. If the discussion thus far is correct, there are three fundamental concerns from the democratic point of view. These include:

  • the need to promote exposure to materials, topics, and positions that people would not have chosen in advance, or at least enough exposure to produce a degree of understanding and curiosity;
  • the value of a range of common experiences;
  • the need for exposure to substantive questions of policy and principle, combined with a range of positions on such questions.
Of course, it would be ideal if citizens were demanding, and private information providers were creating, a range of initiatives designed to alleviate the underlying concerns. Perhaps they will; there is some evidence to this effect. In fact, new technology creates growing opportunities for exposure to diverse points of view, and indeed growing opportunities for shared experiences. It is certainly possible that private choices will lead to far more, not less, in the way of exposure to new topics and points of view, and also to more, not less, in the way of shared experiences. But to the extent that they fail to do so, it is worthwhile to consider government initiatives designed to pick up the slack.

A Catalogue of Reforms

There are many reform possibilities. Each of them would require a lengthy discussion. But if we draw on recent developments in regulation generally, we can see the potential appeal of five simple alternatives. Of course different proposals would work better for some communications outlets than others.

1. Producers of communications might be subject, not to regulation, but to disclosure requirements. In the environmental area, this strategy has produced excellent results. The mere fact that polluters have been asked to disclose toxic releases has produced voluntary, low-cost reductions. Apparently fearful of public opprobrium, companies have been spurred to reduce toxic emissions on their own. The same strategy has been used in the context of both movies and television, with ratings systems designed partly to increase parental control over what children see. On the Internet, many sites disclose that their site is inappropriate for children. The same idea could be used far more broadly. Television broadcasters might, for example, be asked to disclose their public interest activities. On a quarterly basis, they might be asked to say whether and to what extent they have provided educational programming for children, free airtime for candidates, and closed captioning for the hearing impaired. They might also be asked whether they have covered issues of concern to the local community and allowed opposing views a chance to be heard. The Federal Communications Commission has already taken steps in this direction; it could do a lot more. Websites might be asked to say if they have allowed competing views a chance to be heard. Of course, disclosure is unlikely to be a full solution to the problems that I have discussed here. But modest steps in this direction are likely to do little harm and at least some good.

2. Producers of communications might be asked to engage in voluntary self-regulation. Some of the difficulties in the current speech market stem from relentless competition for viewers and listeners, competition that leads to a situation that many journalists abhor, and from which society does not benefit. The competition might be reduced via a ‘code’ of appropriate conduct, agreed upon by various companies, and encouraged but not imposed by government. In fact, the National Association of Broadcasters maintained such a code for several decades, and there is growing interest in voluntary self-regulation for both television and the Internet. The case for this approach is that it avoids government regulation while at the same time reducing some of the harmful effects of market pressures. Any such code could, for example, call for an opportunity for opposing views to speak, or for avoiding unnecessary sensationalism, or for offering arguments rather than quick ‘sound-bytes’ whenever feasible.

3. The government might subsidise speech, as, for example, through publicly subsidised programming or Websites. This is of course the idea that motivates the notion of a Public Broadcasting System. But it is reasonable to ask whether the PBS model is not outmoded in the current communications environment. Other approaches, similarly designed to promote educational, cultural, and democratic goals, might well be ventured. Perhaps government could subsidise a ‘public.net’ designed to promote debate on public issues among diverse citizens — and to create a right of access to speakers of various sorts.

4. If the problem consists in the failure to attend to public issues, the government might impose “must carry” rules on the most popular Websites, designed to ensure more exposure to substantive questions.18 Under such a program, viewers of especially popular sites would see an icon for sites that deal with substantive issues in a serious way. They would not be required to click on them. But it is reasonable to expect that many viewers would do so, if only to satisfy their curiosity. The result would be to create a kind of Internet sidewalk, promoting some of the purposes of the public forum doctrine. Ideally, those who create Websites might move in this direction on their own. If they do not, government should explore possibilities of imposing requirements of this kind, making sure that no program draws invidious lines in selecting the sites whose icons will be favoured. Perhaps a lottery system of some kind could be used to reduce this risk.

5. The government might impose “must carry” rules on highly partisan Websites, designed to ensure that viewers learn about sites containing opposing views. This policy would be designed to make it less likely for people to simply hear echoes of their own voices. Of course, many people would not click on the icons of sites whose views seem objectionable; but some people would, and in that sense the system would not operate so differently from general interest intermediaries and public forums. Here too the ideal situation would be voluntary action. But if this proves impossible, it is worth considering regulatory alternatives.
These are brief thoughts on some complex subjects. My goal has not been to evaluate any proposal in detail, but to give a flavour of some possibilities for those concerned to promote constitutional goals in a dramatically changed environment.19


My principal claim here has been that a well-functioning democracy depends on far more than restraints on official censorship of controversial ideas and opinions. It also depends on some kind of public domain, in which a wide range of speakers have access to a diverse public — and also to particular institutions, and practices, against which they seek to launch objections.

Emerging technologies are hardly an enemy here. They hold out at least as much promise as risk. But to the extent that they weaken the power of general interest intermediaries, and increase people’s ability to wall themselves off from topics and opinions that they would prefer to avoid, they create serious dangers. And if we believe that a system of free expression calls for unrestricted choices by individual consumers, we will not even understand the dangers as such. Whether such dangers materialise or not will ultimately depend on the aspirations, for freedom and democracy alike, by whose light we evaluate our practices. What I have sought to establish here is that in a free republic, citizens aspire to a system that provides a wide range of experiences — with people, topics and ideas — that would not have been selected in advance.

p. 1 p. 2 p. 3 p. 4 p. 5 p. 6 p. 7 p. 8 p. 9 p.10 p. 11   


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