Cass Sunstein

Free Markets, Free Speech, and Social Justice, Part II

VTR Date: April 8, 1997

Guest: Sunstein, Cass


Guest: Professor Cass R. Sunstein
Title: “Free Markets, Free Speech and Social Justice” Part 2
VTR: 4/8/97

I’m Richard Heffner, your host on The Open Mind. And this is the second of two programs with Cass R. Sunstein, Carlin Llewelyn Distinguished Service Professor of Jurisprudence at the University of Chicago Law School and Department of Political Science.

Oxford University Press has recently published Professor Sunstein’s Free Markets and Social Justice. It and his earlier volume on Democracy and the Problem of Free Speech provide us again our discussion points today.

Professor Sunstein, let me pick up with this notion of the free marketplace of ideas, and talk about the world of entertainment, the world of news too. And tell me what your fix is on the question of the free market, television, the press generally, electronic and print alike, cable, et cetera.

SUNSTEIN: Well, I think the marketplace of ideas does some good, keeps government’s hands off, and sometimes when its hands should be off, but it also is pretty misleading, because – it comes from Oliver Wendell Holmes, incidentally – because our free speech tradition at its beginning and at its best isn’t about competition for the cheapest something; it’s about a well functioning system of democracy. And so we really, in some ways, do now have a marketplace of ideas, and its consequences aren’t all good.

HEFFNER: What do you mean?

SUNSTEIN: Well, if what happens is that people treat speech like any other commodity, like, you know, automobiles or cereals, it may be that we won’t like the extent, with respect to ordinary people, our system of free expression now is basically a product of businesses. It’s much better than what we see in, you know, communist China. It’s much better than what we see in many countries. But it’s a lot worse than it should be.

HEFFNER: What do you think is going to happen now?

SUNSTEIN: Well, there are two possibilities. One is that there will be enough of a public outcry about media markets that aren’t attending to public issues or that involve violent materials, or that involve infringements on people’s privacy, like disclosing the names of rape victims. One possibility is that there will be enough public outcry that the media will change its behavior. And there’s been some of that, even in the last five years. And that’s good, and that’s the best way to go, if we can.

The other possibility is that we’ll increasingly have law and regulation, not of the really frightening, McCarthy era kind, but I think more modest regulation designed to make the media market work better than it does now.

HEFFNER: Do you think that’s going to happen in terms of the wonderful lobbies that the media people maintain?

SUNSTEIN: It’s very tough. And I’ll tell you, as a teacher of Constitutional law, the press’s coverage of the Supreme Court is, from the standpoint of lobbying, astonishing. If the Supreme Court decides even the most trivial and little of free speech cases, it’s front page news. And the story will either be, “The court upholds the First Amendment,” or “The court rejects the First Amendment.” Well, the question always is: What does the First Amendment mean, exactly? And if the First Amendment is thought to mean any speech that comes across in markets as protected, a very weird, non historical view about the First Amendment, but if that’s what the media is pressing before people, then it’s going to be very hard to get laws. Let me give you an example. There is a law regulating cable television, and one thing it does is it says that cable TV must carry, among other things, public affairs and educational programming. And, predictably, the cable operators challenged that law, saying it violated their rights of free speech. Now, the court, very recently, in 1997, upheld that law. A bit of a surprise. The key vote was cast by Justice Breyer, who said, in his separate opinion, “The First Amendment really isn’t about just free markets. It has a purpose. And the purpose is to ensure that everybody gets access to ideas. And if you ensure that cable TV has to take news and local affairs and public affairs programming from the networks, then you might be regulating speech but actually making more people have access to more ideas.”

HEFFNER: Isn’t that Breyer notion, isn’t that fundamental to fair thinking, thinking that will bring about what you call “social justice” and democracy? Because the book, Democracy and the Problem of Free Speech, relates to what you’re talking about now. Isn’t the Breyer approach the approach that must continue to be taken by the court if we’re to make sense of all of this?

SUNSTEIN: I think so.

HEFFNER: Will it be?

SUNSTEIN: It’s hard to tell. If you look at our legal history, we have two real heroes. One is Oliver Wendell Holmes, who used the marketplace of ideas notion, and he is a hero, and in his time that idea did great work.

HEFFNER: In his time.

SUNSTEIN: In his time. The other hero, who often joined him, and who is often joined, was Justice Brandeis, who said, “The greatest menace to democracy is an inert people.” So what Brandeis thought was the First Amendment isn’t about a market in ideas. He never talked that way. What Brandeis thought is the First Amendment is about democratic self government. Now, what that means, if the First Amendment is about self government, is that some regulation of the media may well promote democratic self government, like efforts to ensure that everybody gets access to lots of ideas. It also means that if a government is regulating, let’s say, sexually violent material, or allowing parents to be able to screen out sexually violent material, that shouldn’t be thought, necessarily, to be an offense to the First Amendment.

HEFFNER: You know, it’s such a difficult thing for those of us who were brought up in this most recent period when the First Amendment seemed to mean an absolutist approach to the Constitution, to that amendment. It seemed that there was nothing before then. If you were going to be non historical. You point out, in your book and elsewhere, that we must understand that this is a fairly recent understanding.

SUNSTEIN: Right. I think many people say that they’re free speech absolutists. And it’s very good rhetoric, and it has some good purposes. But no one really is a free speech absolutist. No one believes that perjury laws are unconstitutional, or laws stopping fraud are unconstitutional, or that laws stopping child pornography are unconstitutional, or laws stopping attempted bribery are unconstitutional. We regulate speech a lot. Any civilized society does. So the real debate isn’t between absolutists and non absolutists; it’s exactly where we draw the line, and how.

Now, what I see as very strange in the last 30 years is that the First Amendment used to be used mostly by political dissidents trying to protect themselves against going to jail because of the content of their speech. But now the First Amendment is used by commercial advertisers a lot, trying to attack government efforts to ensure that commercial advertising isn’t fraudulent. And it’s being used, I think, worst of all, to attack campaign finance laws.

HEFFNER: And do you think it will continue to be successful, particularly in terms of the commercial speech and campaign financing?

SUNSTEIN: Well, this depends ultimately on what the American people want. My view is that commercial advertising serves a lot of good purposes. And whether we should regulate it, and how, is a pretty complicated question. We don’t want our Supreme Court saying that our First Amendment is about the unfettered universe of commercial advertising. That’s a very large reinvention of our Constitutional tradition, and it takes a provision that was designed to promote democratic self government and turns it into a completely different purpose.

HEFFNER: But, you see, most Americans, it seems to me, don’t have the faintest idea along the lines of what you just said.

SUNSTEIN: Yeah, well …

HEFFNER: There is the absolutist habit. It seems so clear. The First Amendment to the Constitution says “No law,” and that means no law. Now you make the point that there are many laws that touch upon speech.

SUNSTEIN: Right. No one who wrote the First Amendment thought that the First Amendment means that the freedom of speech includes everything that comes out of people’s mouths or typewriters or computers (which they didn’t have). So this view that we’re absolutists, a lot of people think they think it. But if you think about it just for a moment, you can see that we don’t believe the perjury laws and attempted bribery laws and laws against fraud are unconstitutional.

HEFFNER: One year, my seminar at Rutgers, at the end of the semester, gave me a sweatshirt, and written on it was, “Where do you draw the line?” Because you’ve used that phrase, others have used it, of course. And if you do ask the question, everyone has an answer to it. “Well, I draw it here,” or “I draw it there.” But everyone draws it somewhere. But is there the kind of clear and present danger that enables us, in terms of the American popular media, to pass legislation, regulatory legislation, and say, “There is a clear and present danger, and this is the context in which we’re passing this law”?

SUNSTEIN: Okay. What I would try to do is to say that if the government is trying to regulate political speech or political protest, it had better show a danger that’s very clear and very present. The First Amendment, at its core, is about unfettered discussion of political ideas. Now, if the government isn’t regulating that, there still may be a free speech problem. So if the government is regulating sexually explicit speech, there may well be a free speech problem. But I don’t think the government needs to show the kind of catastrophe to regulate commercial advertising that it needs to regulate political dissidence. Now, what I just said may seem controversial; it’s actually what the vast majority of judges now think. And so one way to draw the line is to distinguish between speech that involves political discussion – that is almost absolutely protected – and other kinds of speech which government needs a good reason to regulate (want to make sure it has a good reason) but that you needn’t show the same kind of clear and present danger. And I would want to distinguish between those forms of government regulation that are designed to promote freedom by, for example, enabling parents to screen out shows that they don’t want their kids to see, or by, for example, by putting on TV educational and public affairs programming, as the chair of the Federal Communications Commission is now trying to do. Those things are very different from censorship.

HEFFNER: Of course, for me, given the 20 years I spent in Hollywood as chairman of the Film Rating Board, and all of the things I’ve seen over the years in film, on television, et cetera, I think even you were begging the question. You’re talking
about … Where is it that you write? In Chicago?

SUNSTEIN: Hyde Park.

HEFFNER: Okay. You’re talking about the people who are fortunate enough, and have the resources that are efficient unto acquiring the kind of social graces and social intelligence and education that gives them the opportunity to care for their children. But this is a nation that has so many, many, many latchkey children who may endanger your well protected children and my well protected grandchildren. But I wonder if it isn’t begging the question somewhat when we talk about legislation that won’t go as far as real regulation and real prohibition, whether we aren’t dealing with media now that come into every home willy nilly with this material, and whether we’re not going to have to bite a much tougher bullet than you suggest.

SUNSTEIN: Well, okay. I think it’s a great question. And I think the first thing that is important to say is: that question ought not to be ruled off limits by the First Amendment. That is the worst thing that’s happened, I think, in our political/legal culture with respect to the media is that the First Amendment actually stops people from asking questions and discussing problems. It’s like a technique of censorship. What about the First Amendment? The First Amendment might be a barrier, but we have to know a lot of details first. I mean, I think the first way to go is to see if voluntary mechanisms work. That’s the first way to go. The second way to go is to see if you can have legislation which, while not strictly speaking voluntary, enables parents and enables children to see the sorts of things that they want. Within the case of children, to fence off things that their parents don’t want them to see. That’s why I think that the V chip is a very interesting innovation. And we should have lots of discussion of things like that, and the First Amendment shouldn’t be a censoring device.

Now, you say, “Are there cases in which ultimately we’ll have to bit the bullet and censor?” I say no, if we’re talking about political dissent or political speech. But if we’re talking about censorship in the form of requiring, let’s say, three hours of TV for children a day, when the networks would rather put on cartoons from the 1950’s, fine by me. And if we’re talking about regulating violence on Saturday morning programming, hard questions. I don’t think the First Amendment is a barrier.

HEFFNER: That’s interesting, because in the first instance you simply talk about encouraging, through legislation and through dollars, I presume, encouraging better, good things, positive things; and then you move into the area of violence, and you become a little bit willing, perhaps (unless I misinterpret you), to talk about real restriction and prohibition.

SUNSTEIN: Well, what I think is part of the emerging movement away from deregulation as the be all and end all, is an effort to encourage cooperative relations between government and industry. Industry consists, needless to say, of human beings, most of whom have or know children. And so, to the extent that the FCC is able to work with industries to come up with livable limitations on when violent programming can be shown, great. I wouldn’t rule that off limits.

HEFFNER: But, Professor Sunstein, when you talk about individuals who are just as thoughtful and concerned, have families, et cetera, who, we used to say they would put their pants on one leg at a time, just as the regulators do, but there is so much of an attitude today of, let’s go back to the beginning of our first program, this is a free market, it is a competitive market, “I must compete with the others, and if I’m going to compete, I’m going to have to put on the violence, the sleaze, et cetera, et cetera,” and that seems to be the case. Now, does voluntarism face up to the dollar?

SUNSTEIN: Maybe not. There was a hilarious hearing before Congress, where Senator Simon was trying to say, “Okay, one reason you don’t protect children with your programming is that the antitrust laws prevent you from taking to one another. I will repeal the antitrust laws for you so you can come up with some voluntary codes.” Now, the industry’s basic position, at least early on, was that Senator Simon’s law, which would have allowed the network heads to talk to each other, violated the First Amendment. Imagine that. A law that would have enabled people to speak to each other violated the First Amendment.

HEFFNER: Professor Sunstein, I don’t have to imagine it. I lived through it. When the networks did join together with the chairman of the FCC in some participation and established many, many years ago, 25, 20 years ago, family viewing time, and the federal court declared that unconstitutional, it was in violation of the First Amendment. And so, it’s not so crazy; it’s very shrewd to continue to use First Amendment arguments.

SUNSTEIN: Right. It’s funny. When we think of the tobacco companies fighting government regulation. It’s, you know, tobacco companies consist of human beings, many of whom are wonderful people, and many of whom are doing wonderful work. But the initial reaction people have is: “they’re in it for their economic self interest. They can’t fully be trusted.” I think the same is often true of Hollywood and the broadcast industry.

HEFFNER: How could it be otherwise? If they are not …


HEFFNER: … public properties, they are not utilities; they are businesses. And the answer always is, to complaints “This is a business.”

SUNSTEIN: Correct.

HEFFNER: “This isn’t a school. This isn’t a do good institution.”

SUNSTEIN: So it would be great if we see the broadcast industry and the movie industry as having an analogy to the tobacco industry rather than as having an analogy to dissenters in China or dissenters in the former Soviet Union.

Now, there are some trends in the direction of seeing this as a business. And I can give you a little evidence of that. The current Federal Communications Commissioner, the head, a guy named Reed Hunt, knows that markets are often very good in communications. He’s not a big pro regulation guy. But he also thinks that it’s very important that children be protected, and it’s very important to ensure that people are allowed to see, hear a lot of ideas, and to hear diverse ideas. And I think he suggests a growing trend.

HEFFNER: Well, I wish I could share your optimism, but instead I become more pessimistic as I hear that optimism, because I think, talking before, mentioning before about biting the bullet, I think it is only going to do us in further. And it, doesn’t it avoid the problem that we’re not faced with the need so much to find positive programming for children as we are faced with the need to protect our children from the material, from the garbage that is so disastrously bad for them?


HEFFNER: And Reed Hunt has proudly come up with plans for the networks and all stations to put on more programming that’s designed for children, and that is really not just the old junk under that guise. But what does it do about the negative programs that our children are still exposed to?

SUNSTEIN: Well, there, I think that’s a problem. And I think the first line of defense is to talk about issues like that, see if you can make any progress against the dollar. The second line of defense is to figure out ways to enable parents to protect their children. And the third line of defense, if those don’t work – and they may not work – is to have regulatory limits on what can be shown on what hours. Now, in Europe, if it were suggested (and these are democratic countries in Europe, like England and France), if it were suggested that the free speech principle is automatically violated by efforts to ensure that, let’s say, the most violent of shows aren’t on at hours when children are likely to be watching, that would be thought to be a very strange idea. In America, our free speech principle has kind of gotten unmoored from its roots in democratic self government, so much that it makes it hard to engage in democratic self government.

What will happen when? It’s hard to predict. There are lots of different trend lines in the United States. One thing that’s nice is this is an issue where you can’t tell what a liberal would think, you can’t tell what a conservative would think, so you get nice coalitions from diverse sources.

HEFFNER: You say “nice coalitions.” But isn’t one of the concerns that people who claim to be liberal in their politics the fact that they find themselves, of necessity, rubbing elbows with the most reactionary elements in the country?

SUNSTEIN: Well, I think one good thing in America is that many liberals don’t think there are two kinds of people in America: liberals and reactionaries. And many conservatives don’t think there are two kinds of people: conservatives and left liberals, let’s suppose. I think one very good thing in America – and this is, you know, a precious thing to hold onto – is that many liberals are willing to say, “Well, on this issue I think this. And if conservatives agree, great.” And conservatives are often willing to say, “Well, on this issue, I think that. Is that a liberal tradition? If it’s right, so be it.” So I think with respect to the mass media and the problems it has sometimes created, liberals, when they’re thinking well, don’t think, “Is this a liberal position?”’ they think what’s right. Same thing for conservatives.

HEFFNER: I would love to take those words and engrave them and put them up on my wall. I find your … I hesitate. Do I say to a guest “naïveté?”

SUNSTEIN: Well, I’ll tell you, there is another side of the story. I’m talking about a very precious part of our heritage. But there is a trend in the markets that has been unleashed by technologies in the opposite direction from what I’ve been describing. That is, there’s a trend for people to think, “Well, if you can describe a position as liberal or as conservative, you’ve discredited it,” before people start to think about what the position actually is. And I think that’s a real problem with free markets and communications. Maybe I can be a little more specific. One thing that’s very good about our free markets and communications of the past is that people would be exposed to, let’s say, Time magazine, or CBS, and they’d get a diverse set of views, actually. They wouldn’t get maybe as much diversity as we’d like, but they wouldn’t just feed their own prejudices. One danger in our new communications universe is that people can design their own magazines and TVs effectively, so that all they hear is basically an echo of their own voice. Now, remember Brandeis said, “The greatest menace of a democracy is an inert people.” He did not speak of a marketplace and of ideas. And when we fear an inert people, we might think that, in some ways, that’s the direction free markets are heading.

HEFFNER: Well, of course, my major concern has been Milton’s “Whoever knew truth put to the worse in a free and open encounter.” Wonderful question, wonderful slogan, a wonderful basis for First Amendment thinking. But what free and open encounters? And I think that’s what you’re …

SUNSTEIN: Yes, I agree. And, you know, after the Oklahoma City bombing, there was a lot of concern about the use of the internet to recommend the murder of federal employees. And in the recent past there’s been concern about solicitation by religious cults or by other people with problems of vulnerable children, teenagers and adults. And our country has to come to terms with this problem.

HEFFNER: Obviously you believe it will.

Cass Sunstein, thank you so much for joining me today again on The Open Mind.

SUNSTEIN: Thank you.

HEFFNER: And thanks, too, to you in the audience. I hope you join us again next time. Meanwhile, if you would like a transcript of today’s program, please send $4 in check or money order to: The Open Mind, P. O. Box 7977, FDR Station, New York, New York 10150.
Meanwhile, as an old friend used to say, “Good night and good luck.”