Populism and Progressivism as Constitutional Categories-- Part II

Originally published in 104 Yale L.J. 1935 (1995).
Copyright 1995 by Jack M. Balkin. All Rights Reserved.

Go to Part I
Go to Part II
Go to Part III
Return to Writings Online

 

Populism and Progressivism as Constitutional Categories-- Part II

 

J. M. Balkin**

 




IV. THE "MADISONIAN" SYSTEM AND CONTEMPORARY PROGRESSIVISM

 

In Sunstein's First Amendment theory we find an elegant and impressive example of constitutional progressivism, and in this Part I shall attempt to show its progressive roots. Sunstein's theory involves two important ideas. The first is a two-tier conception of the First Amendment, in which some speech is of higher constitutional value than others, and hence receives greater protection. The second idea is that political speech belongs in the highest tier.

Sunstein's first claim is unexceptional. Existing free speech doctrine already treats some kinds of speech with greater solicitude than other kinds; for example, novels receive greater protection than commercial speech. Moreover, there is no particular reason why there have to be only two tiers, and in fact, Sunstein really offers us three -- conduct that is not even considered "speech," speech in the lower tier, and speech in the higher tier. It is unwise and in any case impossible to protect all communicative acts to the same degree. Like life on this Earth, the First Amendment is surely a vale of tiers.

Sunstein's second claim, however, is analytically distinct from the first. Merely because we will protect some types of speech more than others does not guarantee what goes into the various categories. Our answer to this question depends on our view of the purposes behind the First Amendment. Sunstein sees the value of democratic deliberation as central, and hence he places political speech at its core. Nevertheless, if one believed that autonomy, truth seeking, cultural development, and democracy were equally important values, one might have a different allocation of core and periphery.

Sunstein believes that his theory best fits existing doctrine, and "receives firm support from history."(48) He calls his approach to free speech a "Madisonian" theory to highlight its connections to the political philosophy of the Framers. This conception holds, among other things, that "[l]iberal rights are pervasively democratic," and that "[o]ne of their prime functions is to furnish the preconditions for democratic deliberation."(49) In Sunstein's view, what is most characteristic of the "Madisonian" approach is "its skepticism about external or transcendental foundations; its fear of institutional bias and partiality . . . and perhaps above all in its association of truth in politics with what emerges from a well-functioning political process."(50)

These positions are certainly characteristic of contemporary neopragmatism and civic republicanism, but it is quite unclear that they can be traced to Madison or to the Founding Fathers generally. In fact, Sunstein's "Madisonian" theory of the First Amendment is about as Madisonian as Madison, Wisconsin: It is a tribute to a great man and his achievements, but bears only a limited connection to his actual views. Madison surely believed in democracy -- of a restricted sort -- and he also believed in free speech as a means to guarantee democracy. However, his theory of free speech seems to have been based in significant part on an analogy to property rights.(51) Madison was more likely to believe that the state existed to protect individual rights or natural rights than that such rights existed to serve the just interests of the state.(52) Nor is there much indication that as a philosopher of truth Madison was a closet neopragmatist. If Sunstein's theory shares anything with Madison, it is not his commitment to democracy but his antidemocratic tendencies; like any good Federalist, Sunstein recognizes the need to restrain popular will by filtering popular sentiment through the more dispassionate expertise of elected representatives.(53)

As in his more general constitutional theory of civic republicanism, Sunstein's use of history is a respectful gesture towards original intention, a selective discovery of his own theoretical preoccupations in the materials of the past, made necessary because he is a constitutional lawyer and that is what lawyers do. Sunstein is often quite open about this; although he sometimes uses original understandings to support particular arguments, he does not believe that constitutional interpreters should be limited by the original understandings of the First Amendment.(54) Hence, we must consider his use of the term "Madisonian" a necessary obeisance to the rhetorical requirements of constitutional theory, for nowhere in the book does Sunstein suggest that he would find a particular result desirable but that it is, unfortunately, prohibited by the original understanding of the Framers or the views of James Madison.

We will better understand the nature of Sunstein's theory of free speech if we look elsewhere for family resemblances. Indeed, in his continual emphasis on the need for society to shape private preferences to serve public and democratic ends, Sunstein seems much closer to John Dewey than to James Madison.(55) It is of course no great shame to offer a theory influenced by one of America's greatest philosophers and surely its greatest philosopher of education. Of course, unlike James Madison, John Dewey was not one of the Founding Fathers nor the author of the words contained in the First Amendment. But this should detain us only if we had hoped to gain some undeserved measure of political authority from the invocation of Madison's name.

Dewey emphasized the need to educate the citizenry to prepare them for democracy and participation in democratic institutions.(56) He believed in a social interest that transcended the interests of any particular individual and to which individuals had to conform.(57) Because Dewey saw no fundamental opposition between individual and society, and because he argued that individuals were created by the society in which they lived, he viewed individualism and individual rights as social constructs that served (and should serve) the larger interests of society as a whole.(58) Finally, Dewey argued that political truth is the result of a process rather than a matter of correspondence.(59) Not unsurprisingly, all of these appear as themes in Sunstein's constitutional theory.(60) In his emphasis on the social construction of preferences, in his insistence on the educative functions of politics, and in his optimism that a common good can be derived from public deliberation about the great issues of the day, Sunstein sounds remarkably Deweyite, if not Dewey-eyed.

We will also better understand the nature of Sunstein's theory once we recognize that it is the latest in a long line of process-based theories of the First Amendment. Although Alexander Meiklejohn is mentioned only twice in this book,(61) it is no accident that Sunstein replicates most of his positions, and that, like Meiklejohn, Sunstein is largely disappointed with the performance of the mass media and popular culture in promoting democratic values.(62) Moreover, as if condemned by a family curse to repeat the sins of his ancestors, Sunstein manages to replicate most of the theoretical difficulties inherent in Meiklejohn's views. To use Robert Post's apt expression, process-based theorists like Meiklejohn and Sunstein are managers of public discourse -- they hope to use the law to ensure the right mix of statements and positions.(63) The point, as Meiklejohn put it, "is not that everyone shall speak, but that everything worth saying shall be said."(64) Decisions about what is "worth saying" -- for example, what mix of positions constitutes sufficient diversity -- naturally fall to those designing and enforcing the regulatory system. Hence free speech policy becomes an exercise in managerial expertise, which at its best produces lively debate in the service of democracy, and at its worst is a form of political flower arrangement that crushes the life out of the unruly and unkempt carnival of public discourse. Such an approach is rooted in the progressivist vision that emerges in the early twentieth century. It is a desire for good government in the public interest produced with the assistance of scientific expertise and the leadership of intellectual elites.(65) Once we recognize the origins of this theory of free speech, we find that it bears the theoretical physiognomy of its ancestors like a distinctive family nose. As the contemporary equivalent of Deweyan progressivism and the heir to Meiklejohnian managerialism, it shares with them the following characteristic features:

(1) A view of individual rights as serving the goals of democracy and democratic deliberation;

(2) A notion of the "public interest" that rises above the petty interests of individuals;

(3) An ideal of deliberation and dialogue that is considerably more managed and stylized than anything that occurs in the real world;

(4) A distrust of popular culture for failing to live up to this ideal; and

(5) A sense that -- perhaps for reasons of unjust social structure and regulatory failure -- the masses are not doing their part in furthering democratic ideals and hence steps must be taken to educate them to ensure that they engage in democratic deliberation in the appropriate way.

In short, implicit in the progressivist diagnosis and the progressivist framing of issues is a nascent distrust and critique of popular culture coupled with a call for the state to remedy or at least counteract its deficiencies. For if individuals are socially constructed by the communities in which they live -- or (in Sunstein's preferred language) popular preferences are endogenous to politics -- better politics is the solution to bad culture. In the contemporary language of civic republicanism this goes by the name of "instilling civic virtue," and in the language of contemporary communitarianism it goes by the name of "restoring personal responsibility." So conceived, such theories will almost always pose themselves against existing preferences of the masses and existing popular culture. They will usually find themselves opposing some form of populism, and hence they will usually be accused of some form of elitism. As I shall discuss later on, Sunstein's theory is no exception to this rule.(66) First, however, we must try to understand why a Meiklejohnian solution to the theory of free speech leads to characteristically Meiklejohnian problems.

 

V. SON OF MEIKLEJOHN

 

From a purely doctrinal perspective, the great difficulty with the Meiklejohn view has always been explaining why nonpolitical expression like art, music, and literature should receive the highest level of protection. Meiklejohn himself at first denied that these forms of expression were specially protected, but later changed his mind.(67) Of course, the problem of mapping received understandings about what should be constitutionally protected is endemic to any monistic theory of free speech; it extends as well to theories like Sunstein's that recognize a plurality of constitutional values but permit only one to determine what falls within the core of constitutional protection.(68) Although Sunstein justifies his "Madisonian" conception on the grounds that it maps received understandings better than other theories,(69) this is surely not the case. It does much worse than theories that recognize multiple and equal values for the simple reason that our received understandings are usually the result of considerations that are plural and eclectic.

Faced with the task of explaining the observed motions of the planets while insisting that planets moved only around the Earth and only in perfect circles, the ancient astronomer Ptolemy and his followers hit upon the idea of epicycles, little circles within circles that the planets transversed on their way around the center of the universe.(70) Similarly, one can correct the deficiencies of the Meiklejohnian view with epicycles of a different sort, but, as in Ptolemy's case, the results are not particularly convincing except to those already committed to the theory. Thus, Meiklejohn eventually claimed that art and literature were protected because they were necessary for people to vote and engage in democratic deliberation.(71) This seems somewhat far-fetched, for it is hardly necessary that everyone read novels, watch ballet, or listen to music for democracy to succeed. Moreover, it is not clear that all dance, music, and literature are equally helpful in this task.

Sunstein attempts to solve Meiklejohn's problem through an expansive definition of "political speech." He defines political speech as speech that is "both intended and received as a contribution to public deliberation about some issue."(72) Public deliberation in turn is defined broadly to include any discussion of "social norms" as well as changes in law or government.(73) Moreover, although Sunstein requires that both speaker and receiver must understand that the speech is political in his sense, he does not press this point too hard. It is enough if "a few" understand it as such.(74) It is not even necessary that the artist herself understand or intend her work to be "political," at least in the ordinary sense of that word.(75)

If these criteria are defined broadly enough, much art, literature, and even some music and dance will be included. This is, of course, Sunstein's goal, for he wants to map our received understandings concerning the kinds of expression that enjoy maximal protection. On the other hand, he does not want to define his categories too broadly. After all, commercials often comment on the human condition and social norms in order to sell products. As Sunstein notes, "it is plausible to think that almost all speech is political in the sense that it relates in some way to the existing social and political structure."(76) Nevertheless, he concludes that even "if some people understand the speech in question to be political, it cannot follow that the speech qualifies as such for constitutional purposes, without treating almost all speech as political and thereby destroying the whole point of the two-tier system."(77) Unfortunately, this does not so much resolve the difficulty as restate it.

Indeed, the breadth of Sunstein's definition threatens to undermine the reasons he gives for the central role of political speech. Here it is useful to contrast Meiklejohn's and Sunstein's approaches. As we have seen, Meiklejohn argued that art and literature deserved protection because citizens needed them in order to vote and discuss politics. His concern is tightly linked to the actual processes of self-governance, and that is precisely why his claims about the importance of Beethoven and Bo Diddley to debates about tariff regulation seem strained. Sunstein, on the other hand, believes that art and literature help individuals deliberate about social norms generally, whether or not they have anything to do with government action or inaction. He avoids Meiklejohn's problem by not requiring a direct and significant relationship between protected speech and government processes. Nevertheless, he justifies special protection of political speech on the grounds of government's greater incentives for self-interested action. When the government regulates political speech it "is most likely to be biased or to be acting on the basis of illegitimate, venal, or partial considerations."(78) Moreover, "[g]overnment is rightly distrusted when it is regulating speech that might harm its own interests; and when the speech at issue is political, its own interests are almost always at stake."(79)

One can surely question this premise. If we are looking for the situations in which governments are the most venal, biased, and partial, it might well be in the budgetary process when they hand out tax deductions, pork-barrel projects, and other government entitlements. However, even if we grant Sunstein's premise that greater dangers of venality and self-dealing are reasons for the special protection of political speech, it is hardly clear that Dostoevsky or Dolly Parton deserves this additional protection. Indeed, Sunstein says as much: He acknowledges the "worry that moralistic people or religious groups will attempt to use the arm of the state in order to censor speech that threatens their particular, partial conception of the good."(80) Nevertheless, "these kinds of threats, though real, do not distinguish regulation of speech from regulation of anything else; hence they provide us with no special reason to be suspicious of government regulation of speech."(81) In other words, the distrust/self-dealing rationale argues for a much narrower definition of specially protected political speech than Sunstein himself provides. Sunstein argues that "[i]f courts are not especially suspicious of government regulation generally, they should not be especially suspicious of government regulation of nonpolitical speech."(82) However, this is also true of much of the speech that Sunstein defines as "political" -- for it includes any speech that has something to say about social norms. Even so, Sunstein is not about to deny constitutional protection to art, music, and literature, for he has epicycles ready to hand. Government may also not regulate speech in the second tier because it disagrees with the message or because the message gives offense.(83) Nevertheless, as Sunstein notes, offense is a "complex and underanalyzed category,"(84) and his theory begs the interesting question whether objections to pornography and racist speech fall into this category. Sunstein suggests that "[i]t is at least plausible to think that the victim of a racial epithet suffers something other than mere offense."(85) This requires him to introduce further epicycles on the theme of what is merely offensive and what is otherwise regulable, on what is offensive but also political, and on what is both offensive and political but can nevertheless be relegated to certain times and locations.(86) Through sufficient bobbing and weaving in the various chapters of this book, Sunstein is able to achieve his goal, which is that "a Madisonian approach would not require major changes in current law."(87)

Yet the problem has never been that a process-based theorist like Sunstein could not add enough competing considerations to his theory to map existing doctrinal results. The problem is rather the artificiality of the means used. Once again it is interesting to compare Meiklejohn and Sunstein in this respect. What makes Meiklejohn's solution problematic is not that one cannot claim that art, music, and literature help produce a citizenry better prepared for democratic deliberation. It is rather that we think this a highly idiosyncratic and impoverished perspective on the value of art, music, and literature. Similarly, Sunstein claims that art, music, and literature gain maximal protection not for their positive attributes but because they are likely to be the targets of opportunistic politicians and blue-nosed civil servants. For Meiklejohn, art is protected because it serves politics; for Sunstein art is protected because it is continually threatened by politicians. In both cases, the constitutional value of art is a reflection of its relation to politics -- either as its aid or its enemy, either as its servant or its victim, either as an instrument of its realization or as its familiar and recurrent prey.

The difficulty is that the reasons why we value something are often as important as the fact that we value it. If I praise the Mona Lisa because it makes a good doorstop, I surely value it, but my valuation has a certain inherent bias. If the Mona Lisa is splashed with paint or even disfigured, it still makes a perfectly good doorstop, and so my decisions about how best to protect it will be affected accordingly. Moreover, our reasons for valuing something have more subtle ideological effects. For example, they determine the central and peripheral cases of the category. To return to the previous example, the central case of valuable art is the big, bulky (but not too bulky) item that keeps my door in place. By contrast, a blues number by Muddy Waters hardly seems worth much fuss. It is a peripheral example of a category that fails to exemplify the reasons for the category's value.

Sunstein emphasizes, quite correctly, that the reasons why we value something constitutionally are not necessarily the same reasons why we value it generally.(88) But this begs the question whether they should be different in any particular case. Even if institutional considerations require that the reasons for constitutional protection of art and literature differ in some respects from the reasons we believe that these things are valuable to us, it by no means follows that constitutional reasons must be limited to the protection of the political process. If a process-protection rationale severely distorts the reasons why we think art, music, and literature are valuable, this is a good reason for a less monistic theory of free speech justification.

If we constitutionally value art as the servant or victim of politics, we risk skewing our estimation of it. It becomes art not for art's sake, but for policy's.(89) It is art as seen through the eyes of a policy wonk. It is art either in the service of politics, or as the favorite target of politics. From this perspective, the central case of artistic expression becomes not George Gershwin's Rhapsody in Blue, but George Carlin's "seven dirty words" monologue.(90)

We often associate arguments that art has nonpolitical worth with the elite values of high culture. Yet there is more to art than elite art, and there is more to culture than high culture. The critique of Meiklejohn's political instrumentalism must be more than a defense of the aesthetic values of elites against the philistinism of politics. Attacking the two-tier system in the name of high culture co-opts the critique of Meiklejohn; it becomes an argument for one set of elite values against another. Moreover, it is a co-optation with its own ideological effects. First, it produces a tendency to justify the protection of popular culture in terms of the aesthetic values of high culture. It leads to the claim that we must defend the right to broadcast Married With Children so that we can preserve the right to display Robert Mapplethorpe's photography. Yet when popular and elite standards diverge (as they often do), such arguments become increasingly strained. Second, and more important, this very kind of argument demeans the values and modes of popular culture, because it views popular values merely as corrupted approximations of elite values, worthy only to the extent that they imperfectly reflect a purer aesthetic.

Understood in its broadest terms, the critique of political instrumentalism is not simply a claim of art for art's sake. Rather it is an argument about the kind of culture we live in and the importance of respecting its expressive values whether or not they converge with elite preoccupations. A theory of free speech is also a theory of democratic culture, and from a populist perspective, democratic culture is popular culture. America has become a democracy not merely because it has adopted more democratic forms of governance, but because its culture and its social norms have become more democratic and popular. Such a culture is more than a servant of some ideal of democratic deliberation. But it is also more than a poor reflection of elite culture, valued merely because of its debauched relationship to it. The First Amendment does not protect mass culture for the sake of avant-gardism and high art; rather it protects the latter because they are part of a larger phenomenon -- the carnival of public discourse and popular culture that arises in a democratized society. The First Amendment is about Spielberg as much as Bergman, about the Jackson Five as much as Jackson Pollock, about Rambo as much as Rimbaud. Meiklejohn and his intellectual progeny have always shared this dual failing: Defending art in the name of politics and all art in the name of high art, they inevitably neglect the cultural and condescend towards the popular.

 

VI. THE TWO-TIER SYSTEM AND PROGRESSIVE REFORM

 

The most important difficulty with Sunstein's two-tier system, however, is that it is in serious tension with his egalitarian, good-government agenda. At first glance, the two seem to mesh quite nicely. Placing speech on matters of public concern in the upper tier appears to safeguard the processes of democratic deliberation. Placing everything else in the lower tier allows him to regulate commercial advertising and sexually explicit speech in the interests of promoting democratic seriousness and gender equality.

The problem is that the two areas Sunstein most wishes to reform are campaign finance and broadcast policy. He wants to permit legislatures and administrative agencies to regulate these areas in the public interest, and he wants courts to exercise greater judicial restraint in passing on the constitutionality of such regulations. However, part of what he wants to regulate is broadcast policy, and all of what he wants to regulate in the area of campaign finance, is political speech -- the speech that is at the very core of his theoretical framework and that calls for the highest level of judicial protection.

Here Sunstein's arguments for the two-tier system come back to haunt him. He distinguishes nonpolitical expression (including nonpolitical art and literature) from political speech on the grounds that the dangers of self-dealing by politicians are greatest in the case of speech about public affairs. But if this is so, it suggests that reform of campaign finance and broadcast policy should be viewed not with greater judicial restraint, but with the strictest of scrutiny. Sunstein himself recognizes that campaign finance reform may serve as a device for the protection of incumbency.(91) Moreover, as Scot Powe has shown convincingly, FCC regulation of the broadcast media over the past century has involved continual favoritism towards political allies and continual hostility towards political opponents or those thought to be politically embarrassing.(92) Sunstein's worries about self-dealing in the area of political speech, it would seem, are abundantly justified. If so, his assumption that governments aided by appropriate expertise can be trusted to develop policies that are in the public interest must be viewed with more than a grain of salt.

The problem is that Sunstein wants two things at the same time: He seeks judicial restraint in situations where legislatures and administrative agencies engage in reform-minded attempts to promote serious and balanced discussion of public issues -- for it is the appropriately managed conduct of core political activity that makes democracy function properly under his theoretical system. On the other hand, his defense of political speech as standing at the core of First Amendment protection is premised on the very real concern that the dangers and consequences of self-interested dealing by the political branches are most serious precisely when such speech is the subject of regulation.

This dilemma reveals the essentially schizophrenic nature of the book: The two-tier system so elaborately developed in the second half of the book does nothing for Sunstein when applied to the first half's discussion of campaign finance, and indeed is a positive hindrance. This may explain why the two-tier system is not fully introduced until Chapter Five, when questions of campaign finance and broadcast policy are safely out of the way.(93)

The only way out of the dilemma is to argue that regulations of political speech should be treated with greater deference because and to the extent that they promote rather than debilitate democratic values. In Meiklejohn's language, such regulations may be restrictions on the liberty to speak, but not of the freedom of speech.(94) However, this answer does not escape the dilemma but simply embraces one of its two horns. It shows that Sunstein's theory, at bottom, is a theory of reduced judicial scrutiny in the regulation of political speech -- an ironic result for a Meiklejohnian theory. In practical terms, he must abandon the argument for greater distrust of government regulation in the areas of campaign finance and broadcast regulation.

The reason is simple. In the abstract, one can say that distrust is unnecessary when the government improves democracy and promotes democratic deliberation. But in practical terms, courts must still pass on challenges to reform efforts that claim to have these goals. The long-term consequences of such reforms will rarely be clear on their face. Even where there is relative certainty, there will be many disputes about what kinds of results are better or worse for democracy (including disputes about what "democracy" really requires). Moreover, different interest groups often have very different visions of what effective campaign finance reform would look like. For example, in the bills placed before Congress at the end of the 1994 session, the Democrat-sponsored bills looked markedly different and regulated different things than the Republican-sponsored bills.(95)

Because legislatures will usually insist that they are acting to promote democracy, courts must face the question of the appropriate level of scrutiny. The question is what degree of confidence should be reposed in the product that emerges from the legislative process -- whether from a Congress dominated by incumbent Democrats or one (as after the 1994 elections) dominated by incumbent Republicans.

Ultimately, if we wish legislatures to reform the political process and courts to uphold these reforms, we must be prepared to accept and even advocate greater judicial restraint in these cases. This means that courts must allow a number of different regimes to pass constitutional muster, even if some of them do not in fact promote democratic goals in the long run. The only way to avoid this result would be for the judiciary to arrogate for itself the task of drafting the perfect legislation, from which no deviations would be held constitutional. This, however, is a task for which courts are no better suited than legislatures, and that is no more likely to result in a healthier political process.

Sunstein is not ultimately wrong, I think, in advocating greater judicial restraint in review of campaign finance regulations (I shall have more to say about broadcast policy in the next section). Once we move from a strictly libertarian conception of free speech and adopt a more regulatory model of the political process (as both Sunstein and I do), the boundaries that determine permissible limitations on financing of political campaigns necessarily become fuzzier. Constitutionality begins to turn not so much on simple on/off rules (for example, Buckley v. Valeo's infamous distinction between limitations on contributions and expenditures(96)), but becomes a matter of reasonable legislative judgment within certain boundaries.

Nevertheless, I think that support for such legislation requires a necessary qualification, which I am not sure is consistent with Sunstein's generally progressivist model of free speech but is rather more populist in flavor. In my view, any constitutional system of campaign finance reform must be combined with term limits. Because the temptations towards incumbent protection legislation are so great, any campaign finance reform that an existing Congress legislates must be accompanied by guarantees of continual rotations in office. From a progressivist standpoint, term limits are problematic because they debilitate the expertise of legislative bodies; experienced legislators must leave after fixed periods of time and there is a corresponding loss of institutional memory. Term limits regularly place the government in the hands of neophytes rather than experienced and knowledgeable policymakers. A progressivist might support term limits for familiar "good government" reasons of preventing corruption, but even here it would be unclear whether such a prophylactic measure was the most appropriate means to this end. From a populist perspective, however, term limits are not merely a remedy for corruption. They also serve as an important symbol that the government, no matter how noble its asserted motives, does not always act in the best interests of its citizens, and that individuals who are long in power naturally tend to lose touch with their constituents and abuse their privileges.

Like campaign finance reform, term limits pose First Amendment problems (in addition to problems under the Qualifications Clause). It might seem strange to think that the problems of the former regulation of speech could be solved by even greater regulation; perhaps the best analogy is to the theory of "second best" in economics.(97) The greatest practical difficulty is that our system of constitutional adjudication makes it difficult for courts to pass on a unified system of electoral regulation that would include both features. Nevertheless, from a populist perspective, it seems entirely plausible that the constitutionality of one must depend in part on the presence of the other.

 

VII. A NEW DEAL FOR SPEECH AND THE MANAGEMENT OF PREFERENCES

 

Apart from the two-tier system, Sunstein's other basic conceptual move is an attack on uncomplicated notions of government neutrality towards speech. Sunstein's analysis here is quite similar to arguments I have previously offered,(98) and for obvious reasons, I think it is quite convincing. What I have called a "Legal Realist" approach to the First Amendment he calls a "New Deal" for free speech.(99) The relationship between these titles is apt, for realism was an intellectual tool in the promotion of the New Deal agenda. However, as I shall argue, Sunstein goes well beyond the realist point that government is responsible for unjust distributions of communicative power. He argues that government is also responsible for the public's tastes in broadcast programming; hence the government has the duty to shape private preferences to promote the ideals of democratic deliberation. This additional claim gives his argument a distinctly progressivist spin.

The basic insight of the realist analysis is simple: Government is always involved in the regulation of speech, even and especially through its common law rules of property, tort, and contract. These rules affect the ownership and distribution of communicative technology; they also affect the economic power of people who might wish to purchase the right to use them. Effective communication is always a function of the existing social and technological structure. In our age, this increasingly requires access to media of mass communication, which in turn is tied to rights of private property. At the same time, because the right to speak is tied to property rights, the rules of contract, property, and tort give private individuals power to withhold the right to use communicative technologies from each other or to impose economic or other social sanctions on the exercise of speech. For example, property owners can invoke the right of trespass to keep away protesters, advertisers can withdraw financial support from broadcasters whose programs they dislike, networks can refuse to sell air time to organizations they do not wish to associate with, and political activists can organize economic boycotts of organizations with disagreeable views. A system of private rights simultaneously puts in place a system of rights to free speech based on property ownership and a system of private censorship based on the exercise of these rights.(100)

As long as the practical ability to communicate with others is effectively tied to inequalities in the ownership of property, we cannot say that a purely formal right to speak is identical with a substantive liberty or with equal opportunity to speak. The government may not defend the current allocation of contract, property, and tort rights merely on the grounds that its system of private property is neutral as between speakers and does not interfere with speech. Under a different regime of rules, different individuals would have greater economic power and hence different substantive abilities to speak and to deter others from speaking. Put in Sunstein's favored terminology, there is no natural baseline for the distribution of these rights and therefore no natural distribution of rights and powers to purchase and use communicative technology.(101) Because the government is always regulating speech in one way or another, the distribution of rights that affect speech is a matter of public policy, and the government is responsible if its distribution has the effect of inhibiting speech or disserving valuable goals like democratic deliberation.(102)

This analysis softens the distinctions between positive and negative liberties, between government intervention and government inaction, and between public and private power. For example, we can think of certain features of free speech law -- for example, the existence of public fora -- either as constitutionally mandated rights of speaker access to government property or as government subsidies of speech. Similarly, we can view constitutional restrictions on libel judgments as redistributive decisions to subsidize speakers at the expense of the persons whose reputations they besmirch and whose reputational capital they lessen.(103)

Nevertheless, the point of this conceptual exercise is not to abolish the distinctions between concepts like public and private power. The goal rather is to understand these boundaries as more flexible. Indeed, we may even think of public and private as conclusory terms that help us describe the kinds of regulatory schemes that best further interests like human liberty, cultural development, the pursuit of truth, and democratic self-government. It is tempting to rush to the conclusion that in a post-New Deal world we will no longer have use for concepts like government neutrality. Yet it is a fool's errand to think that we can abandon the distinction between public and private, between positive and negative liberty, or between government action and inaction. Whenever we attempt to cast these distinctions aside, they simply return in other forms. They are what I have called in other contexts "nested oppositions"; conceptual opposites whose intellectual coherence depends in an uncanny way on the existence of their opposite numbers.(104)

At bottom, the legal realist analysis is a form of conceptual liberation. It allows us to think about free speech policies differently and helps us remove certain intellectual blinders. Yet by itself it has no necessary political consequences. One might accept this analysis and still conclude that, all things considered, it is best to retain the present system or even move to a more libertarian one because this furthers the goals of free speech as well as any, despite its obvious defects.(105) In Sunstein's case (as in mine) the point of this reconceptualization is to reconcile our commitment to free speech with our commitment to egalitarianism. It is designed to show that more egalitarian policies towards free speech are compatible with the free speech tradition. The major difference between us concerns the kind of egalitarianism each of us hopes to further. For Sunstein, equality serves the goal of promoting a healthy system of democratic deliberation. For me the goal is to ensure equality of opportunity for self-expression and equality of access to the political process.(106)

In offering this reconceptualization, both Sunstein and I owe an intellectual debt to an unlikely pair -- Owen Fiss and the Critical Legal Studies movement. In two important essays in the 1980's, Fiss emphasized the importance of the state as a positive force in constructing a democratic system of free expression and criticized the conflation of freedom of speech with the existing regime of property rights.(107) Critical Legal Studies scholars, in turn, refurbished the realist critique of the distinction between public and private power, and attacked the neutrality of baselines established by the common law.(108) Although my intellectual debt to CLS is clear, its influence on Sunstein's constitutional theory may be less obvious but is no less significant. Both The Partial Constitution and the present book would have been impossible without the critique of neutrality promulgated by figures like Morton Horwitz and Duncan Kennedy in the 1970's.(109) It is of course Sunstein's particular genius that he has been able to adapt insights from many different sources, including CLS and feminism, and synthesize them together into a more or less coherent vision of constitutional law and regulatory policy. Such a gift may be viewed from the perspective of the left and the right as domestication,(110) "mere" bricolage,(111) or conceptual confusion.(112) Yet these weaknesses (if they are such) are also strengths, for by cobbling together disparate sources, Sunstein has been able to fuse different theoretical perspectives into the service of an enlightened political centrism and in a language that is distinctively his own.

Sunstein's New Deal for speech goes beyond the realist critique, however, in its views about the scope and extent of government responsibility. Sunstein hopes to use the critique of government neutrality to justify his civic republican view that government both can and should instill civic virtue and attention to public issues in its citizens. This leads him to two controversial positions: First, he believes the realist critique shows that law is responsible for the lack of quality in public discourse in the United States and the programming preferences of the public. Second, he believes that legal regulation of the mass media can foster public-spiritedness and the goals of democratic deliberation.

The realist critique of neutrality -- at least in the form I have offered it -- holds merely that different regulatory regimes will have different consequences on the distribution of income and power. Therefore the government must be held responsible for the distribution of economic power and the relative access to communicative technology that goes with it. Sunstein takes this point one step further. He argues that different regimes will produce not only different economic holdings, but also different preferences, and in particular preferences for information about politics and for what Sunstein calls "high-quality" programming.(113)

To a certain extent this is surely true. Because different regimes will produce different distributional consequences, they will surely result in changes in revealed preferences -- that is, preferences as judged by what people do in markets. If the legal regime makes me poorer, I may not buy that new Lexus, but will settle instead for a used Corolla. It is not clear, however, that I wouldn't still prefer the Lexus if I had the money. Different regimes create different options for individuals, and hence change the ways in which they can exercise their wills. In addition, by changing holdings, we also change the relative quantity of various goods and services produced in the market, and this will also have an effect on revealed preferences.

Finally, large changes in distributions of property over several generations might produce marked changes in preferences because of the relationship between tastes and socioeconomic class. If a person is raised in a rich household, her preferences may be different than if she were raised in poverty. Thus, if we want people to grow up liking ballet, we could increase the chances of this by making their grandparents very wealthy.

Sunstein, however, is not making these relatively modest claims about law's effects on preference formation. For he believes that tastes as well as options are significantly affected by the choice of legal regimes. In particular he believes that law is largely responsible for the low quality of public discourse in the United States and for people's failure to expose themselves to the issues of the day. It is an article of civic republican faith that preferences are endogenous to politics; hence, Sunstein argues, if people fail to watch sufficient amounts of high-quality programming or expose themselves to public issues, this is due to some form of regulatory failure.

Surveying the quality of public discourse in the United States, Sunstein finds little to admire.(114) The airwaves are full of "scandals, sensationalized anecdotes, and gossip,"(115) and the broadcast media "deals rarely with serious issues and then almost never in depth."(116) Yet, Sunstein argues, "if anything like this is true, it is, I believe, the law -- not nature, not 'freedom,' and not 'private decisions' -- that is responsible."(117)

Sunstein argues that "[i]t is the law that creates the system operated by the broadcasting . . . [and] print media."(118) Hence it is the law that gives rise to the choices individuals make, which, in turn, feed back and reinforce the kinds of programming that the media offer. If law caused the problem in the first place, Sunstein assumes, it can surely remedy it. Accordingly, Sunstein holds that "there is no good basis for supposing that current tastes and habits are rigidly fixed."(119) Indeed, he contends, "[t]here is reason to believe that viewing habits, like many other customs and cultural practices, are extremely vulnerable to large-scale shifts on the basis of relatively mild government interventions."(120)

What would explain law's ability to produce these large-scale shifts? One possibility suggested by Sunstein is that viewer tastes are due to fads. Thus, "[s]ometimes the practice of many people is dependent on what other people do. Once some people change their practices, a wide range of others change as well."(121) For example, if a few people start watching Frasier rather than Roseanne, this signals to others that perhaps there is something worth watching on the other channel, and hence a snowball effect occurs making Frasier the current darling of television audiences. This is a useful model to account for certain types of cultural fads, but it is unclear that it can explain mass preferences for Roseanne versus The MacNeil/Lehrer NewsHour. Once we consider the choice between sitcoms and public-affairs programming, it is by no means clear that mass preferences for what Sunstein considers low-quality programming or mere entertainment are due to fads. Rather, they seem to be longer-term phenomena that are comparatively resistant to changes in fashion. Sitcoms come and sitcoms go among the most popular programs on television, and still The MacNeil/Lehrer NewsHour is nowhere to be found.(122)

Another possibility is that tastes for mass entertainment reflect what Jon Elster calls "adaptive preferences."(123) Building on Leon Festinger's theory of cognitive dissonance and Paul Veyne's historical sociology, Elster argues that people sometimes form preferences for what they can reasonably expect to have given the limitations of their situation and reasonably feasible alternatives.(124) Changes in taste reduce cognitive dissonance because people then do not have to want what they cannot have, nor do they have to find intolerable circumstances they cannot escape.(125) This theory would suggest that people now prefer low-quality programming because they have given up hoping for higher-quality material. Thus, law might create large-scale shifts in viewer preferences by providing high-quality alternatives to existing programming.

So stated, it should be obvious that the theory of adaptive preferences is particularly ill-suited to explain why people continue to watch sitcoms or The Price Is Right when they could be watching C-SPAN or MacNeil/Lehrer. Adaptive preferences occur when people are denied alternatives and limited in their choices. However, one need not engage in dissonance reduction strategies to avoid being disappointed in one's desire for public-affairs programming. One can see The MacNeil/Lehrer NewsHour every Monday through Friday. This is to say nothing of the considerable amount of public-affairs programming presently available on television, in addition to historical documentaries, science programs, and "high culture" entertainment like theater, opera, and ballet.(126) To be sure, some of this programming is on cable television, but this would mean at most that we would see adaptive preferences for "trash television" only among those members of the public who cannot afford cable. Moreover, much of this programming is on public television, which is available to the vast majority of Americans.(127) If Americans are not watching public-affairs programming, it is not because no such programming is available.(128)

There is an important intuition behind the adaptive preferences claim, but it does not suggest that modest changes in broadcast policy will do the trick. One might argue that people prefer entertainment to public-affairs programming because they work hard all day earning a living and have limited leisure time, or because they have been reduced to grinding poverty and need entertainment as a form of escape. If so, we might change their preferences for public-affairs programming by giving people higher incomes and more satisfying lives. Sunstein suggests that public-affairs programming and public television in general seem to be viewed disproportionately be more affluent and educated viewers,(129) and it is often said that public television subsidizes the rich at the expense of the poor and the more educated at the expense of the less educated.(130) However, this suggests that we might change the public's tastes for such programming by eliminating poverty and reforming our decaying educational system. These reforms would be much more costly than simply requiring different broadcast fare, and they would probably do more good as well. On the other hand, it is unlikely that modest changes in broadcast policy would have much effect because they do not address the deeper economic and social problems that poor and working people face.

What is most puzzling about Sunstein's arguments about the malleability of preferences is that they seem belied by his diagnosis of their causes. He acknowledges that people's preferences may be due to their economic and educational status, and yet he advocates creating large-scale shifts in these preferences through FCC regulation rather than welfare and educational policy. Law may have a role in creating the economic and social conditions that lead to current viewing tastes, but it does not follow that these preferences are easily manipulated by changing broadcast policy as opposed to changing the underlying social and economic structure. Indeed, one is tempted to borrow a line from Elster and Festinger and suggest that Sunstein's views on preference shaping are themselves an example of cognitive dissonance reduction, in this case, wishful thinking. As Elster explains, sometimes people believe things because they prefer a world in which they are true to one in which they are false.(131)

Although Sunstein's views about the mutability of viewer preferences seem unpersuasive, his more central point is that the legal system should regulate the media to promote democratic deliberation and viewer interest in public affairs. According to Sunstein, broadcast policy, like other free speech policies, should be tailored to serve the goal of promoting deliberative democracy. In particular, Sunstein attacks the idea that viewer choice, or what he calls "consumer sovereignty," should control. Thus, there is some irony in Sunstein's invocation of the statement in Red Lion Broadcasting Co. v. FCC that "[i]t is the right of the viewers and listeners, not the right of the broadcasters, which is paramount."(132) For Sunstein, this apparently refers not to the actual preferences of viewers, but rather to an idealized conception of what their preferences as citizens should be under appropriate conditions.

Sunstein is particularly concerned that existing broadcast fare lacks sufficient diversity and sufficient attention to public affairs. He is of course aware of the natural rejoinder that the amount of diversity and public discussion has never been higher, given the rise of cable television, CNN, C-SPAN, Court TV, and talk radio. Sunstein responds that only half of U.S. households are currently wired for cable, and "[e]ven worse, the households and the children that are probably most in need of high-quality programming are least able to afford it."(133) Yet the obvious response to this problem would be for the government to subsidize cable television in every American home, and then simply allow viewers (and parents supervising children) to choose what they want to watch.

However, Sunstein finds this capitulation to existing choices and preferences particularly troubling. He argues that information about public affairs is a public good, and hence that "[f]reedom of choice will therefore fail to capture the important external and systemic benefits of learning about public issues."(134) People will simply not watch enough C-SPAN even if we give it to them for free (or at greatly reduced cost) as long as they are subjected to the enticements of Roseanne or MTV.

Of course, the existence of public goods is usually a justification for government regulation, and for forcing people to make choices they would not otherwise make. For example, in the environmental area we issue regulatory mandates to people to take precautions we would not expect them to take of their own accord. If we really believe that exposure to public affairs is a public good every bit as important as a clean environment, should we not consider forcing viewers to read newspapers or watch "high-quality" programming in order to ensure the "external and systemic benefits of learning about public issues"?(135) In some contexts, the idea is not all that far-fetched. We do require children to attend school until the age of sixteen. We attempt, sometimes with only limited success, to ensure that the general population is literate and able to participate in public affairs as well as able to earn a living in the contemporary marketplace. The question Sunstein's analysis raises is whether further mandates should be issued to fully grown adults who, for one reason or another, have an insufficiently well-developed taste for discussions of serious public issues.

Sunstein quite naturally and properly recoils from the claim that we should force people to watch public-affairs programs.(136) However, neither does he want to accept the principle of "consumer sovereignty" in television watching. Indeed, allowing the public to watch what it wants gauged by its revealed viewing preferences is the opposite of sovereignty for him. While he concedes that "[p]eople's consumption patterns in television-watching do suggest a more favorable attitude toward existing practices"(137) than he finds desirable, these revealed preferences cannot be regarded as more authentic or true than the preferences people have as democratic citizens.(138) Sunstein argues that "private broadcasting selections are a product of preferences that are partly a result of the existing broadcasting system and not entirely independent of it."(139) So one cannot without circularity assume that existing preferences justify the current system of broadcasting.(140)

These arguments shed further light on why Sunstein is uncomfortable with autonomy-based accounts of the free speech principle. Because individual preferences are the result of the existing legal system, what people choose to say, read, watch, or listen to may simply be the result of the system in which they live.(141) Their choices both as speakers and listeners may be due to poverty, insufficient education, or lack of education, and hence need not be fully respected.(142) By contrast, he argues, when the people act as citizens through their democratic representatives, they engage in democratic sovereignty that is superior to consumer sovereignty and deserves greater deference: "People might well choose to view a silly situation comedy at night, while also enthusiastically supporting a requirement of media attention to public affairs."(143) If so, "[t]heir support of that requirement," Sunstein argues, "operating through democratic channels, could reflect a reasoned judgment about what they value for the polity of which they are a part, not a consumption choice about what they want for their private enjoyment. That judgment should be respected."(144)

Sunstein's separation of consumer choice from democratic choice seems puzzling. First, the same individuals whose cognitive abilities Sunstein has criticized as consumers are suddenly praised for their perspicacity as citizens. If poverty, insufficient information, and lack of education cause people to choose badly in their choice of programs, don't they also affect their judgments as citizens about what legislation to support? If so, why should these judgments be any more entitled to respect? Conversely, if their political judgments are entitled to respect, why do we need to second-guess their choices about what to watch or listen to?

This conceptual difficulty is yet another version of the problem we saw earlier in the discussion of Sunstein's two-tier system: Sunstein distrusts the current system of democratic deliberation, thinking it undermines democracy and badly needs reform; yet he trusts the same system to produce legislation in the public interest, and holds that its judgments in this regard "should be respected." Yet one can apply Sunstein's argument about the circularity of respect for consumer sovereignty to his optimistic assessment of political sovereignty: We can also say that political judgments about broadcast reform "are a product of preferences that are partly a result of the existing broadcasting system and not entirely independent of it."(145) If the existing political process produces legislative reforms, these cannot without circularity be considered to be the result of democratic sovereignty because what appears to be the people's political choice may simply have been due to defects in the process and lack of information and education among the citizenry.

Second, Sunstein fudges the point that regulatory choices will be made not by citizens themselves, but by their elected representatives. In fact, they will most likely be made by government bureaucrats with no direct accountability to the people. Of course, this suggests how one might reconcile his relative disrespect for the public as consumers and his relative respect for the public as citizens. This difference in attitude reflects the difference between individual choices and choices filtered through a representative system aided by regulatory expertise. Yet it is precisely at this point that a potential distinction between progressive and populist orientations emerges. From a progressive standpoint, the substitution of representative judgment for individual judgment is highly desirable; once the people's representatives have decided that some form of broadcast regulation is appropriate, they can pass the question along to regulatory experts who can fashion the best means of promoting democratic goals. From a populist standpoint, this substitution is considerably more troublesome and even suspicious. The idea that government bureaucrats will select what people should or should not watch under the name of serving their interests seems like a net loss of sovereignty rather than a net gain.

By the time Sunstein has finished his critique of consumer sovereignty, he seems poised to call for highly interventionist mandates to improve the quality of broadcast programming and ensure that the unwashed masses watch these programs. But in fact he does nothing of the sort. The reforms he proposes are comparatively modest and, for the most part, eminently sensible. First, Sunstein argues that we should devote more money to public broadcasting, especially children's programming.(146) Second, the FCC and other government agencies might publicly fund or produce more "high-quality" programming(147) along the lines of the BBC. Third, Congress might relax the antitrust laws so that broadcasters could develop codes of conduct designed to lessen advertising pressures that affect programming.(148) Fourth, the government might place a tax on advertising revenues to fund public broadcasting or publicly subsidized programming.(149) (Another related possibility would be to charge license fees from broadcasters for the same purpose.(150)) Finally, Sunstein suggests that the government might guarantee free air time to political candidates, either by directly purchasing it, or by making such provision a condition of a broadcast license.(151)

Although these reforms are for the most part plausible suggestions, it is unclear that they will have anything more than a modest effect in promoting democratic deliberation. People will still be free to watch MTV rather than "high-quality" programming. Nor is there any indication that these suggestions will produce large-scale shifts in viewer preferences. Better children's television may have salutary effects on democratic deliberation, but that is only in the long run. Free air time to political candidates is an excellent way of reducing the inherent disparities between wealthier and poorer candidates, for television advertising often eats up increasingly large portions of modern campaigns.(152) Yet Sunstein does not advocate restricting the purchase of political advertising, and he gives us no reason to assume that negative campaigning and attack ads will not continue.

 

Notes

 

48. SUNSTEIN, supra note 1, at 132.

49. Id. at 248.

50. Id.

51. See, e.g., James Madison, Property, NAT'L GAZETTE, Mar. 29, 1792, reprinted in THE MIND OF THE FOUNDER 243 (Marvin Meyers ed., 1973) (asserting that every "man has a property in his opinions and the free communication of them").

52. See JENNIFER NEDELSKY, PRIVATE PROPERTY AND THE LIMITS OF AMERICAN CONSTITUTIONALISM (1990); John O. McGinnis, The Partial Republican, 35 WM. & MARY L. REV. 1751 (1994) (reviewing CASS R. SUNSTEIN, THE PARTIAL CONSTITUTION (1993)). It is not necessary to go so far as these authors and claim that Madison's theory of free speech was centrally or exclusively concerned with these matters. It is enough merely to note that there are very significant aspects of his thought that are unaccounted for in Sunstein's use of history.

53. See, for example, his criticisms of electronic populism in Cass R. Sunstein, The First Amendment in Cyberspace, 104 YALE L.J. 1757 (1995).

54. SUNSTEIN, supra note 1, at 132.

55. This comparison is well made by Rabban, supra note 28, at 154-55.

56. See, e.g., JOHN DEWEY, DEMOCRACY AND EDUCATION 260-61 (MacMillan 1966) (1916); John Dewey, Ethical Principles Underlying Education, in THIRD YEARBOOK OF THE NATIONAL HERBART SOCIETY 7 (1897), reprinted in 5 EARLY WORKS OF JOHN DEWEY 54, 59-60 (1972); John Dewey, My Pedagogic Creed, SCHOOL J., Jan. 1897, at 77-80, reprinted in 5 EARLY WORKS OF JOHN DEWEY, supra, at 93.

57. See, e.g., JOHN DEWEY & JAMES H. TUFTS, ETHICS 303-04, 482-83 (1913). This view underlies his equation of the moral and the social. See DEWEY, DEMOCRACY AND EDUCATION, supra note 56, at 358-59.

58. DEWEY & TUFTS, ETHICS, supra note 57; DEWEY, DEMOCRACY AND EDUCATION, supra note 56, at 305, 359-60.

59. See DEWEY, DEMOCRACY AND EDUCATION, supra note 56, at 338-45.

60. See generally SUNSTEIN, supra note 1, at 19, 91, 241-50; CASS R. SUNSTEIN, THE PARTIAL CONSTITUTION (1993).

61. SUNSTEIN, supra note 1, at 38, 122.

62. MEIKLEJOHN, POLITICAL FREEDOM, supra note 4, at 86-88; SUNSTEIN, supra note 1, at 58-67. Meiklejohn also anticipates Sunstein's criticisms of Holmes' individualism and skepticism about the existence of a public interest. MEIKLEJOHN, supra, at 60-62.

63. Robert C. Post, Meiklejohn's Mistake: Individual Autonomy and the Reform of Public Discourse, 64 U. COLO. L. REV. 1109 (1993).

64. MEIKLEJOHN, POLITICAL FREEDOM, supra note 4, at 26.

65. Meiklejohn's relationship to progressivism is obscured by the fact that he writes in the middle of the 20th century. Yet he was born in 1872, which would have made him 40 years old at the time of the 1912 election. His major work, FREE SPEECH AND ITS RELATIONSHIP TO SELF-GOVERNMENT, reprinted in MEIKLEJOHN, POLITICAL FREEDOM, supra note 4, becomes all the more remarkable when we realize that it was written at the age of 76; incredibly, The First Amendment Is an Absolute, 1961 SUP. CT. REV. 245 [hereinafter Meiklejohn, The First Amendment], his last important essay, was written when Meiklejohn was almost 90.

66. See infra parts VIII & IX.

67. Compare MEIKLEJOHN, POLITICAL FREEDOM, supra note 4, at 39-40 with Meiklejohn, The First Amendment, supra note 65, at 262.

68. Compare SUNSTEIN, supra note 1, at 122 (emphasizing that political deliberation is the primary value) with id. at 129-30 (allowing for plural subsidiary values) and id. at 144-48 (rejecting theory of equal plural values).

69. Id. at 152.

70. THOMAS S. KUHN, THE COPERNICAN REVOLUTION 71-74 (1957).

71. Meiklejohn, The First Amendment, supra note 65, at 263. ("I believe, as a teacher, that the people do need novels and dramas and paintings and poems, 'because they will be called upon to vote.'"). Meiklejohn would surely have agreed that art is also necessary to engage in political participation and political debate (as in his famous example of the town meeting), so his use of the word "vote" must be understood in an extended, metaphorical sense.

72. SUNSTEIN, supra note 1, at 130 (emphasis omitted).

73. Id. at 130-31.

74. Id. at 131.

75. Id.

76. Id. at 132.

77. Id.

78. Id. at 134.

79. Id. (footnote omitted).

80. Id. at 135.

81. Id.

82. Id.

83. Id. at 155.

84. Id. at 155-56.

85. Id.

86. Id. at 156-65.

87. Id. at 159. A major exception is that libels against public figures that do not involve matters of public concern would not be subject to the actual malice rule of New York Times v. Sullivan, 376 U.S. 254 (1964). SUNSTEIN, supra note 1, at 159-62. Here again Sunstein applies a narrow conception of the idea of what is "political" that is in serious tension with the broader articulation elsewhere in the book. See text accompanying notes 74-79.

88. As Sunstein puts it, "constitutional value" is not the same as "social value." SUNSTEIN, supra note 1, at 153.

89. Sunstein himself does little to assuage one's fears on this score. Stressing the value of high culture to democratic deliberation, he notes that Dickens' Bleak House "contains a great deal of comment on the fate of poor people under conditions of industrial profit-seeking." Id. He then adds, with apparent seriousness, that Joyce's Ulysses "deals with the role of religion in society," id., a claim that is surely true but which rather tends to demonstrate the limitations of the argument. At some point, of course, it becomes difficult to draw the line between earnestness and parody. Thus, in like fashion we might think of Camus' The Plague as an anguished cry for universal health care coverage, Shakespeare's King Lear as an attack on term limits, and Euripides' Medea as a comment on the breakdown of the Ancient Greek family.

90. A work of art that now lives on -- in ironic symbolism -- as a mere appendix to a judicial opinion. See FCC v. Pacifica Found., 439 U.S. 883 (1978) (appendix to Court's opinion).

91. SUNSTEIN, supra note 1, at 99.

92. LUCAS A. POWE, JR., AMERICAN BROADCASTING AND THE FIRST AMENDMENT 108-61 (1987); see also KRATTENMAKER & POWE, supra note 8, at 103-74.

93. Note that one cannot escape this dilemma by invoking the realist point that campaign finance and broadcast policy reforms are no more regulations of speech than the status quo. The realist critique (which I describe in more detail shortly) does not hold that regulations of speech are not regulations; it argues that speech is continually undergoing regulation by the state, even in situations where we least expect it. One still has to justify the regulations in place, whether they are due to legislative and administrative action or to common law rules of property, tort, and contract.

94. MEIKLEJOHN, POLITICAL FREEDOM, supra note 4, at 21.

95. As one observer has noted, because Republicans generally have access to wealthy individual donors, they want no limit on what candidates can raise and spend but are willing to abolish or limit political action committees; Democrats, in contrast, generally want to restrict the total amount spent and oppose abolishing or limiting political action committees unless they are nationally prominent. See David E. Rosenbaum, The 1994 Campaign; Campaign Finance: G.O.P. Filibuster Defeats Campaign Finance Curbs, N.Y. TIMES, Oct. 1, 1994, at A1.

96. Buckley v. Valeo, 424 U.S. 1, 48-49 (1976).

97. Indeed, Fred Schauer has suggested that the entire structure of First Amendment law can be thought of this way. See Frederick Schauer, The Second-Best First Amendment, 31 WM. & MARY L. REV. 1 (1989).

98. See Balkin, Some Realism About Pluralism, supra note 20.

99. SUNSTEIN, supra note 1, at 28-38. Chapters Two and Three offer a revised version of his discussion in THE PARTIAL CONSTITUTION, which in turn derives from a 1992 article, Free Speech Now, 59 U. CHI. L. REV. 255 (1992), which introduces the terminology of a New Deal for free speech. The importance of the New Deal and the rejection of pre-New Deal understandings are recurring themes in Sunstein's work. See, e.g., Cass R. Sunstein, Constitutionalism After the New Deal, 101 HARV. L. REV. 421 (1987); Cass R. Sunstein, Lochner's Legacy, 87 COLUM. L. REV. 873 (1987).

100. See Balkin, Some Realism About Pluralism, supra note 20, at 411; J. M. Balkin, The American System of Censorship and Free Expression, in PATTERNS OF CENSORSHIP AROUND THE WORLD 155 (Ilan Peleg ed., 1993).

101. SUNSTEIN, supra note 1, at 34-46; Balkin, Some Realism About Pluralism, supra note 20, at 409-14. The language of baselines is a recurrent trope in Sunstein's work. For the best example, see Sunstein, Lochner's Legacy, supra note 99.

102. SUNSTEIN, supra note 1, at 177-79; Balkin, Some Realism About Pluralism, supra note 20, at 413-14.

103. SUNSTEIN, supra note 1, at 47; Balkin, Some Realism About Pluralism, supra note 20, at 403-04.

104. See J. M. Balkin, Nested Oppositions, 99 YALE L.J. 1669 (1990).

105. In that case, however, the choice does not rest on spurious notions of government neutrality or inaction, but on a sober consideration of the administrative limits of government's ability to shape the distribution of economic and communicative power. Note that when we take these administrative limitations into account, something like the concept of neutrality reemerges. If the government cannot effectively produce any system of free speech rights (because it would be administratively impractical or would be enormously expensive) the government's responsibility for not achieving such systems is lessened to that extent. Because ought implies can, governments cannot be held responsible for failure to produce systems they cannot realistically create. However, this is not quite the same thing as an equation of government inaction with government neutrality. When the government cannot achieve particular goals through regulation, it should choose instead among the best of the realistically available alternatives, and it is still responsible for this choice.

106. These contrasting visions correspond very roughly to progressive and populist defenses of First Amendment egalitarianism. From a progressive standpoint, First Amendment egalitarianism is informed by the goals of managerialism; equality promotes the creation of a desirable form of and climate for public deliberation. From a populist standpoint, First Amendment egalitarianism is driven by an aspiration for equality of opportunity; it is motivated by a desire for "the little guy" to be free from concentrations of government and corporate power. It is important to stress that these goals do not necessarily conflict in many contexts; that is one reason why I find much of what Sunstein has to say appealing.

107. Owen M. Fiss, Free Speech and Social Structure, 71 IOWA L. REV. 1405 (1986); Owen M. Fiss, Why the State?, 100 HARV. L. REV. 781 (1987). Nor should we forget the earlier contributions of Jerome Barron and Thomas Emerson. See Jerome A. Barron, Access to the Press -- A New First Amendment Right, 80 HARV. L. REV. 1641 (1967); Thomas I. Emerson, The Affirmative Side of the First Amendment, 15 GA. L. REV. 795 (1981).

108. MORTON HORWITZ, THE TRANSFORMATION OF AMERICAN LAW 1870-1960 (1992); Daniel R. Ernst, The Critical Tradition in the Writing of American Legal History, 102 YALE L.J. 1091 (1993) (reviewing HORWITZ, supra); Duncan Kennedy, The Stages in the Decline of the Public/Private Distinction, 130 U. PA. L. REV. 1349 (1982).

109. Indeed, the critique of neutrality gives The Partial Constitution its title, for Sunstein's claim is that we have a Constitution not only partial in its coverage but also partial in the sense of its lack of neutrality.

110. Jeanne L. Schroeder, The Taming of the Shrew: The Liberal Attempt To Mainstream Radical Feminist Theory, 5 YALE J.L. & FEMINISM 123, 125 (1992).

111. Mark Tushnet, The Bricoleur at the Center, 60 U. CHI. L. REV. 1071, 1071 (1993) (book review).

112. See William N. Eskridge, Jr. & Gary Peller, The New Public Law Movement: Moderation as a Postmodern Cultural Form, 89 MICH. L. REV. 707 (1991).

113. SUNSTEIN, supra note 1, at 90. The important ambiguity in Sunstein's use of this expression is explored in the discussion of Sunstein's critique of popular culture at infra text accompanying notes 154-68.

114. SUNSTEIN, supra note 1, at 23.

115. Id.

116. Id.

117. Id.

118. Id.

119. Id. at 90.

120. Id.

121. Id.

122. By contrast, 60 Minutes, with its combination of aggressive investigative journalism leavened by sentimental human interest stories, was for many years one of the highest-rated programs on television, and has spawned many (for some, too many) imitators.

123. JON ELSTER, SOUR GRAPES: STUDIES IN THE SUBVERSION OF RATIONALITY 110 (1983) [hereinafter ELSTER, SOUR GRAPES]; JON ELSTER, POLITICAL PSYCHOLOGY 54 (1993).

124. ELSTER, POLITICAL PSYCHOLOGY, supra note 123, at 110-11, 115-16; LEON FESTINGER, A THEORY OF COGNITIVE DISSONANCE (1957); PAUL VEYNE, BREAD AND CIRCUSES (Brian Pearce trans., Penguin Press 1990) (1976).

125. ELSTER, POLITICAL PSYCHOLOGY, supra note 123, at 54.

126. For example, on most basic cable systems one can currently watch, in addition to local and national news, PBS and C-SPAN1 and 2, CNN and CNN Headline News, Court TV, the Discovery Channel, the Learning Channel, Arts & Entertainment, and Bravo.

127. KRATTENMAKER & POWE, supra note 8, at 302, 314.

128. Id. at 82-83, 298-300.

129. SUNSTEIN, supra note 1, at 91.

130. But cf. KRATTENMAKER & POWE, supra note 8, at 313-14 (citing studies that indicate that well-educated people watch basically what everyone else watches).

131. ELSTER, SOUR GRAPES, supra note 123, at 148-49.

132. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969).

133. SUNSTEIN, supra note 1, at 68.

134. Id. at 69.

135. Id.

136. Id. at 70.

137. Id. at 73.

138. Id.

139. Id. at 73-74.

140. Id. at 74.

141. Id. at 137, 143-44.

142. Id. at 143-44.

143. Id. at 73.

144. Id.

145. Id. at 73-74.

146. Id. at 84.

147. Id. at 88.

148. Id. at 86.

149. Id.

150. See Henry Geller, Mass Communications Policy: Where We Are and Where We Should Be Going, in DEMOCRACY AND THE MASS MEDIA 290, 308-09 (Judith Lichtenberg ed., 1990).

151. SUNSTEIN, supra note 1, at 85.

152. See, e.g., Glenn F. Bunting & Dwight Morris, Huffington Outspends Feinstein 3 to 1 on Television Ads, L.A. TIMES, Nov. 2, 1994, at A3 (discussing importance of television expenditures in 1994 California Senate campaign, the most expensive Senate race in American history).

 

 

Go to Part I
Go to Part II
Go to Part III
Return to Writings Online