|The Future of Free Speech 4|
The public forum doctrine is an odd and unusual one, especially insofar as to create a kind of speakers’ access right to people and places, subsidised by taxpayers. But the doctrine is closely associated with a longstanding constitutional ideal, one that is far from odd: that of republican self-government. From the beginning, the American constitutional order was designed to be a republic, as distinguished from a monarchy or a direct democracy. We cannot understand the system of freedom of expression, and the effects of new communications technologies and filtering, without reference to this ideal.
In a republic, government is not managed by any king or queen; there is no sovereign operating independently of the people. The American constitution represents a firm rejection of the monarchical heritage, and the framers self-consciously transferred sovereignty from any monarchy (with an explicit constitutional ban on “titles of nobility”) to “We the People.” At the same time, the founders were extremely fearful of popular passions and prejudices, and they did not want government to translate popular desires directly into law. They sought to create institutions that would “filter” those desires so as to ensure policies that would promote the public good. At the same time, the founders placed a high premium on the idea of “civic virtue,” which required participants in politics to act as citizens dedicated to something other than their self-interest, narrowly conceived.
The specifically American form of republicanism thus involved an effort to create a “deliberative democracy.” In this system, representatives would be accountable to the public at large, but there was also supposed to be a large degree of reflection and debate, both within the citizenry and within government itself. The system of checks and balances — evident in the bicameral system, the Senate, the Electoral College and so forth — had, as its central purpose, a mechanism for promoting deliberation within the government as a whole.
In short, the Constitution was not rooted in the assumption that direct democracy was the ideal, to be replaced by republican institutions only because direct democracy was not practical in light of what were, by our standards, extremely primitive technologies for communication. Many recent observers have suggested that for the first time in the history of the world, something like direct democracy has become feasible. It is now possible for citizens to tell their government, every week if not every day, what they would like it to do. Indeed, Websites have been designed to enable citizens to do precisely that, and we should expect more experiments in this direction. But from the standpoint of constitutional ideals, this is nothing to celebrate, indeed it is a grotesque distortion of founding aspirations. The problem is that direct public communication, if accompanied by direct governmental response, would compromise the deliberative goals of the original design.
Two Conceptions of Sovereignty
We are now in a position to distinguish between two conceptions of sovereignty. The first involves consumer sovereignty; the second involves political sovereignty. The first ideal underlies enthusiasm for “the Daily Me.” The second ideal underlies the democratic challenge to this vision, on the ground that it is likely to undermine both self-government and freedom, properly conceived.
Consumer sovereignty means that individual consumers are permitted to choose as they wish, subject to the constraints provided by the price system, and also by their current holdings and requirements. This is the idea that lies behind free markets, and it plays a significant role in thinking about both politics and communications. When we talk as if politicians are “selling” a message, and even themselves, we are treating the political domain as a kind of market, subject to the forces of supply and demand. And when we act as if the purpose of a system of communications is to ensure that people can see exactly what they “want,” the notion of consumer sovereignty is very much at work. The notion of political sovereignty stands on different foundations. It does not take individual tastes as fixed or given. It prizes democratic self-government, understood as a requirement of “government by discussion,” accompanied by reason-giving in the public domain. Political sovereignty comes with its own preconditions, and these are violated if government power is not backed by justifications, and represents instead the product of force or simple majority will.
Of course, the two conceptions of sovereignty are in potential tension. A commitment to consumer sovereignty may well compromise political sovereignty — if, for example, free consumer choices result in insufficient understanding of public problems, or if they make it difficult to have anything like a shared culture.
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