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But Sunstein theorizes on as if this were still the Age of the Quill. He does not even mention Turner Broadcasting System v.

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Federal Communications Commission, a case which will decide whether the cable industry's free-speech rights are being violated by a federal law that requires cable systems to set aside up to one-third of their channels for local commercial broadcast, and additional slots to nonprofit, educational programs.

In sum, what Sunstein has to say about the deficiencies of the marketplace is unsubstantiated, contradictory, and uninformed. In the second part of the book Sunstein attempts to demonstrate--with limited success--how Madisonian principles would resolve some of our most troubling free-speech controversies. The Madisonian view, he explains, holds that political speech should be entitled to the utmost protection, while "lower-value" speech can be more easily restricted.

Sunstein lumps a great deal under the term "political" speech, including almost all literature and music.

Democracy and the Problem of Free Speech, by Cass R. Sunstein - Commentary

Any communication that is "political" or deliberative in the widest sense should be accorded considerable, but never absolute, protection. Misogynistic tracts yes, violent pornography no. In a lower tier are all communications that do not advance deliberation on civic issues, and which thus can be restricted using more lenient standards of harm.

What Sunstein attempts to provide is a respectable rationale for doing it. But Sunstein's parsing of speech has more to do with "sensitivity" than with Madisonian principles. Take, for instance, his claim that the disclosure of the names of rape victims "has no real political content" but is merely a way for the media to exploit victims and titillate readers and viewers If "political" still means here "deliberative," then this claim is absurd.

The Two Clashing Meanings of 'Free Speech'

The very issue of whether or not to disclose rape-claimants' names is highly political, or Sunstein would not be dealing with it. And whether or not the name is disclosed, the decision itself will communicate broadly "political" messages about the social construction of rape and about the legal rights of the victim and the accused. Moreover, Sunstein--a law professor--forgets that an accusation or even indictment of rape does not mean that there is indeed a "rape victim. In other words, both parties are subject to a deliberative process requiring disclosure of relevant information, which certainly should include the names of the accused and the accuser.

Admittedly, publication and telecasting of accusers' names might deter some women even more likely, men from pressing rape charges, but it might also elicit information that discredits or substantiates the accuser's claim--thus assisting the operation of a fundamental democratic institution. The notion that Madisonian principles permit the media to disclose who has been accused but not who has done the accusing owes more to gender politics than to a principled and consistent interpretation of the First Amendment.

Even less convincing is Sunstein's argument for why we must restrict certain forms of hate speech. Although he opposes campus speech codes and laws that attempt to regulate "racist" statements that are part of the exchange of ideas, he supports outlawing racial epithets.


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He repeats the familiar arguments: such words injure the "dignity" and "self-respect" of minorities, and thus cause "sufficient harm to allow regulation" , and they intimidate minorities into silence. But even this moderate position--shared by former Solicitor General Charles Fried, Charles Kors, and D'Souza "Students shall not yell racial epithets at each other" --seems destined, however well intentioned, to sink in semantic quicksand. Problem number one: which "epithets" shall be forbidden?

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Let's say we agree on "nigger," "faggot," and "kike. Given people's linguistic inventiveness and touchiness, the list of forbidden epithets would grow ad infinitum. Grievance consciousness would demand it. Even the word "Jew" might have to be added to the list, at least according to WordPerfect 6. Would they be outlawed only if whites used them? Sunstein does not understand the difficulties posed by his good intentions. He ignores the problem of what to do with inflammatory epithets that are embedded within statements that do communicate ideas, as in racist flyers and in this review, or in utterances that mention epithets but do not assert or avow or declare.

And he leaves unexplored such problematic utterances as "Death to all Arabs!


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  • Sunstein is especially concerned about one specific epithet--"nigger--because of its historical association with slavery and lynching. This "fighting word," he feels, is particularly destructive and intimidating, being not just an offensive insult but a "threat" of physical violence. There are several problems with this view. How can the simple utterance of an epithet constitute a speech crime? The epithet, as any other word, gets its meaning from and has to be interpreted within, a complex social and emotional context that takes into account who is using it, on what grounds, with what tone of voice, with what accompanying gestures and facial expressions, with what intent, and with what effect.

    In both societies, ideological litmus tests govern public discourse. The notion that lively give-and-take is the route to public consensus is fading.

    Democracy and the Problem of Free Speech

    Elite opinion in the West, Michta maintains, not only leans left, but seeks to silence the right. For much of the academic, media, and political establishments, progressive opinions glow with righteousness while viciousness and ignorance indelibly stain conservative convictions. They fervently embrace globalization. They trumpet their commitment to save the planet while pressing for impossibly expensive and utterly unworkable environmental measures. In the s, a critical mass of university professors used their tenured positions not merely to argue for but to institutionalize the belief that to achieve a just society it was necessary to sweep aside the fundamental principles and institutions of liberal democracy.

    Neo-Marxist thinking replaces the proletariat with a bevy of identity-based groups whose claim to authority arises from their success in portraying themselves as victims of bias and oppression which, they maintain, are deeply embedded within the West. The great victory of democracy and freedom in the Cold War over communist totalitarianism convinced Western elites that they were uniquely suited to bring democracy and freedom, as they uniquely interpreted it, to the entire globe. This conceit had perverse domestic ramifications.

    That delusion fuels the self-consuming scorn many intellectuals in the United States as well as in Europe direct at the principles of liberal democracy. In light of long-term trends, those who care about the erosion of democratic norms in the United States — and who believe that that the United States can serve as a model to fellow liberal democracies — would do well to focus their energies on upholding the constitutional requirements of free speech, cultivating tolerance, and learning to benefit from a diversity of opinion.

    His writings are posted at PeterBerkowitz.