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  The Future of Free Speech — 9  

  Looking Back
  Vol II : issue 2

  Amit Chaudhuri
  Cass Sunstein
  Dibyendu Palit
  Gulzar
  Vinay Lal
  Only in Print

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Cass Sunstein

Freedom of Speech

The points thus far raise questions about whether a democratic order is helped or hurt by a system of unlimited individual choice with respect to communications. It is possible to fear that such a system will produce excessive fragmentation, with group polarisation as a frequent consequence. It is also possible to fear that such a system will produce too little by way of solidarity goods, or shared experiences. But does the free speech principle bar government from responding to the situation? If that principle is taken to forbid government from doing anything to improve the operation of the speech market, the answer must be a simple Yes.

I believe, however, that this is a crude and unhelpful understanding of the free speech principle, one that is especially ill-suited to the theoretical and practical challenges of the next decades and beyond. If we see the Free Speech Principle through a democratic lens, we will be able to make a great deal more progress.

Emerging Wisdom?

On an emerging view, the First Amendment to the Constitution requires government to respect consumer sovereignty. Indeed, the First Amendment is often treated as if it incorporates the economic ideal. Although it is foreign to the original conception of the First Amendment, this view can be found in many places in current law.

For one thing, it helps to explain the constitutional protection given to commercial advertising. This protection is exceedingly recent. Until 1976,11 the consensus within the US Supreme Court, and the legal culture in general, was that the First amendment did not protect commercial speech at all. Since that time, commercial speech has come to be treated more and more like ordinary speech, to the point where Justice Thomas has even doubted whether the law should distinguish at all between commercial and political speech.12 Justice Thomas has not prevailed on this count, but the court’s decisions are best seen as a way of connecting the idea of consumer sovereignty with the First Amendment itself.

Belonging in the same category is the continuing constitutional hostility to campaign finance regulation. The Supreme Court has held that financial expenditures on behalf of political candidates are protected by the free speech principle — and also that it is illegitimate for government to attempt to promote political equality by imposing ceilings on permissible expenditures.13 The inequality that comes from divergences in wealth is not, in the court’s view, a proper subject for political control. Here, too, an idea of consumer sovereignty seems to be at work. Indeed, the political process itself is being treated as a kind of market, in which citizens are being seen as consumers, expressing their will not only through votes and statements but also through expenditures.

Most relevant for present purposes is the widespread view, with some support in current constitutional law, that the free speech principle forbids government from interfering with the communications market — by, for example, attempting to draw people’s attention to serious issues or regulating the content of what appears on broadcast networks. To be sure, everyone agrees that the government is permitted to control monopolistic behaviour and thus to enforce antitrust law, designed to ensure genuinely free markets in communications. Structural regulation, not involving direct control of speech but intended to make sure that the market works well, is also unobjectionable. But if government attempts to require television broadcasters to cover public issues, or to provide free airtime for candidates, or to ensure a certain level of high-quality programming for children, many people will claim that the First Amendment is being violated. The same is true for government efforts to improve the operation of the Internet by, for example, enlisting the public forum doctrine so as to promote exposure to materials that people would not have chosen in advance (see below for proposals in this vein).

Free Speech is not an Absolute

We can identify some flaws in the emerging view of the First Amendment by investigating the idea that the free speech guarantee is ‘an absolute’, in the specific sense that government may not regulate speech at all. This view certainly plays a large role in public debate, and in some ways it is a salutary myth. Certainly, the idea that the First Amendment is ‘an absolute’ helps to discourage government from doing things that it ought not to do, and at the same time it gives greater rhetorical power to critics of illegitimate government censorship. But a myth, even if in some ways salutary, remains a myth; and any publicly influential myth is likely to create many problems.

There should be no ambiguity on the point: free speech is not an absolute. The government is allowed to regulate speech by imposing neutral rules of property law, telling would-be speakers that they may not have access to certain speech outlets. But this is only the beginning. Government is permitted to regulate unlicensed medical advice, attempted bribery, perjury, criminal conspiracies (“Let’s fix prices!”), threats to assassinate the President, criminal solicitation (“Might you help me rob this bank?”), child pornography, false advertising, purely verbal fraud (“This stock is worth $100,000”), and much more. Many of these forms of speech will not be especially harmful. A ridiculous and doomed attempt to solicit someone to commit a crime, for example, is still criminal solicitation; a pitifully executed attempt at fraud is still fraud. It is possible for reasonable people to disagree with the view, settled as a matter of current American law (and so settled in most other nations as well), that all of these forms of speech are not protected by the free speech principle. But it is not possible for reasonable people to believe that each of these forms of speech should be protected by that principle. And if one or more of these forms of speech can be regulated, free speech absolutism is a kind of fraud, masking the real issues that must be confronted in separating protected speech from unprotected.

This is not the place for a full account of the reach of the First Amendment of the American Constitution.14 But it is plain that some distinctions must be made between different kinds of speech. We might, for example, distinguish between speech that can be shown to be quite harmful, and speech that seems relatively harmless. As a general rule, the government should not be able to regulate the latter. We might also distinguish between speech that bears on democratic self-government and speech that does not; certainly, an especially severe burden should be placed on government efforts to regulate political speech. Less simply, we might want to distinguish among the kinds of lines that government is drawing in terms of the likelihood that government is acting on the basis of illegitimate reasons.

These ideas could be combined in various ways, and indeed the fabric of modern free speech law in America reflects one such combination. Despite the increasing prominence of the idea that the free speech principle requires unrestricted choices by individual consumers, the court continues to say that political speech receives the highest protection, and that government may regulate, for example, commercial advertising, obscenity and libel of ordinary people without meeting the especially stringent burden of justification required for political speech. But for present purposes, all that is necessary is to say that no one really believes that the free speech principle, or the First Amendment, is an absolute. We should be very thankful for that.

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