| Cass Sunstein's Democracy and the Problem of Free Speech and Stanley Fish's There's No Such Thing as Free Speech and it's a good thing too represent two well-articulated critiques of First Amendment jurisprudence. It is suggested that by comparing these legal scholars who come to similar conclusions regarding the issue of regulating speech, we will discern many nuances and flaws in their arguments that would largely be ignored if one were compared with someone who arrives at an antithetical conclusion, such as Justice Holmes. Although many may think of the two scholars' views as being highly similar insofar as they both support stricter interpretations of the First Amendment, this generalization is problematized after careful scrutiny. Sunstein explains his principle of "regulation" of speech through his heavy reliance on the works of James Madison. He advocates a "Madisonian First Amendment," which is meant to foster what he calls "government by discussion." This type of government exists only when political speech is heavily protected and non-political speech is subject to regulation whenever it inhibits democratic growth. It seems that contemporary First Amendment jurisprudence has ignored the value of this "two-tiered" approach (political/non-political) and has protected "expression" that we may believe to be "fraught with death." In short, speech with direct political implications is completely protected in Sunstein's model. However, non-political speech is subject to regulation. In contrast, one finds that Stanley Fish argues that any speech with political consequence should be subject to some regulatory considerations. Rather than searching for a way to determine a content-neutral, formal definition of the types of speech that could or should be regulated (as does Sunstein), Fish relies heavily on a substantive, particularistic approach to jurisprudence. This approach may find contrary to Sunstein that speech which should be regulated above and beyond all other speech is speech with public consequence or political speech. In the paper, I will attempt to find where Fish and Sunstein stand on key cases and issues (e.g. Dennis) in order to highlight potential differences and agreements. |
For Fish, First Amendment jurisprudence has its theoretical origins in Milton's classic, Areopagetica. This portrayal stands in marked contrast to Sunstein's depiction. Fish notes that Milton advocated free speech, with the exclusion of Catholics, who should be exterminated. For Fish, this is an extreme example of how "free speech" works: "against a background of originary exclusion which gives it meaning" (p. 104). Thus, it is only by virtue of making something or someone or some speech-act illegal, that "free speech" can obtain a value. It is hypothesized that this differs greatly from how Sunstein arrives at this point. In conclusion, I propose the following: 1) a development of Fish's Miltonian conception of Free Speech contrasted with Sunstein's Madisonian conception, 2) an attempt to contrast the differences in what speech should be regulated according to both Fish and Sunstein, and 3) an attempt to critique one of the largest shortcomings in both authors' texts, which is their poorly defined and conceived notions of politics and the political. Any suggestions are greatly appreciated. Democracy and the Problem of Free Speech seeks to comprehend the reasons why Americans valorize free expression. This goal originates from a controversial premise: if we determine that "free expression" conflicts with the ends it is intended to further (such as "democratic deliberation"), then free expression should be subordinate to those ends. Sunstein advocates what he calls a "Madisonian First Amendment," which links free speech with the "American revision of democracy" (p. xvi-xvii). This revision focused on the value of deliberation or what Madison called "government by discussion." Sunstein's text sounds very much like a response to a particular strain of free speech absolutism that has gained currency in America. This absolutism has lost sight of the political value of the First Amendment and thus protects political and non-political speech alike. This is important because Sunstein believes there are certain categories of speech (such as certain types of violent pornography) which are non-political and detrimental to the process of government by discussion and therefore, should be regulated. Overall, Sunstein's text is a narrative of decline - where in the good old days free speech was a matter of whether or not you were a communist. More recently, free speech is also a matter of whether or not one can dance nude or falsely advertise. This two-tiered perspective of the First Amendment prioritizes the political over the non-political. In seeking to prioritize the political, Sunstein is favoring a "New Deal" for the First Amendment. Sunstein is loath to create any viewpoint-based or content-based restrictions. For example, prohibiting the distribution of religious pamphlets is content-neutral in that it prohibits the distribution of anyreligious pamphlets. Sunstein responds to Justice Holmes' conception of the "marketplace of ideas" in his dissent in Abrams v. United States. He brilliantly juxtaposes this notion with Justice Brandeis' Periclean/Madisonian conception of the First Amendment in Whitney v. California. It is this juxtaposition (laissez-faire vs. New Deal, Holmes vs. Brandeis) that Sunstein examines in relation to critical issues facing America. One example is the field of broadcasting. Sunstein delineates ways in which government deregulation of the market (e.g. Red Lion) decreases the diversity of opinions and thus inhibits the aspirations of the First Amendment. Sunstein also addresses such difficult issues as cross-burning, hate speech, violent pornography, and many others. In all of these cases, it seems that Sunstein attempts to perform the same task, which is to determine whether or not the speech-act is political and proceed to negotiate what he believes to be legitimate regulation of non-political speech. But, what is "political speech"? Speech is political "when it is both intended and received as a contribution to public deliberation about some issue" (p. 130). One fears that Sunstein has created a category (or "tier") so capacious as to potentially include all speech-acts. The term "political," like many of Sunstein's other key terms (e.g. Madisonianism), could have benefitted from conceptual refinement. Despite Sunstein's superlative analysis of the problems facing First Amendment jurisprudence, there are considerable conceptual dilemmas in his construction. By prioritizing content-neutral legislation, Sunstein operates under the presupposition that content-neutrality is devoid of a viewpoint. On the face of it, a given law may apply equally to all. Yet, when we look closer, more often than not it has a specific direction and goal. For example, the regulation of the distribution of religious literature is technically "content-neutral," yet given the "history" of leaflet distribution in airports, it would not be erroneous to conclude that the legislation was primarily directed against the International Society for Krishna Consciousness. Sunstein may not want to deal with this matter because it seems to him that "viewpoint-based restrictions are, of course, invalid" (102). More importantly, they are currently the least likely to pass constitutional muster. Given that there is a considerable pragmatic consideration for advocating content-neutral approaches to the First Amendment, it would seem that Sunstein is in the clear. But, is the process of political deliberation being prioritized by the protection of all political speech-acts while non-political speech-acts are regulated? Conversely, one could argue that speech which risks having significant political consequence should be highly regulated. Sunstein even provides an excellent example, where the selling of strategic (potentially) military information to U.S. enemies (especially during times of war) may be regulated. Sunstein makes one egregious error in assessing the nature of violence and pornography. After a good literature review of the correlation between violent pornography and acts of violence, he concludes that certain types of violent pornography should be regulated. Indeed, a certain diversity of view is oppressed by violence resulting from violent pornography. But, because the issue for him is the harm done by men against women, he "suggest(s) that the category of regulable speech might well exclude homosexual pornography, for which the same showing of harm cannot be made (so far as I am aware)" (p. 216). Such a method of reasoning (the "so far as I am aware..." school) reasons not from research or logic but from lack of informed knowledge. Another way to look at this issue is, why does Cass R. Sunstein reason from the presumption of homosexual violent pornography being different from heterosexual violent pornography? His civic ideal of improving democratic deliberation is honorable, yet it is errors like this that reduce one's confidence in his particular restrictive heteronormative reading of First Amendment jurisprudence. |
