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By Cass Sunstein
The Free Press, 1995, 344 pages

Cass Sunstein is one of America's finest legal scholars and forceful commentator on a wide range of important public issues. In this book, he addresses himself to the thorny issue of free speech, suggesting that the First Amendment protects many forms of speech that should never be protected — commercial speech, libelous speech, speech that invades privacy, and certain forms of pornography and hate speech — while it ignores genuine victims of defamation and in some cases gives the government too much power over speech. These inconsistencies are reflected in the great deal of attention given to free speech issues in recent years, he points out. Modern economic and technological changes, together with shifting popular attitudes about various forms of speech, such as campaign finance, hate speech, and government art funding, call for a "large-scale reassessment of the appropriate role of the First Amendment in the democratic process."

According to Sunstein, contemporary interpreters of First Amendment law have lost sight of the primary rationale behind freedom of expression, namely the principle of "government by discussion." The framers realized that the only way the people can be sovereign while at the same time subject to the law was to organize government around a system of deliberative discussion. As James Madison explained, freedom of expression is the cornerstone of the whole system of American government since it ensures discussion and debate among people of genuinely different perspectives and positions. The process of deliberation, Madison said, encourages the development of general political truths. "A distinctive feature of American republicanism is extraordinary hospitality toward disagreement and heterogeneity, rather than fear of it," Sunstein writes. "The framers believed that a diversity of opinion would be a creative and productive force."

The First Amendment, understood in this light, is not so much a matter of protecting rights as ensuring sound public judgment through the process of public deliberation. The true meaning of the law should therefore be determined, and limited, by matters having to do with the political process (broadly defined). Political speech should be encouraged since it is essential to the functioning of democracy, while non-political speech should be less fully protected when it conflicts with other interests and rights, such as privacy.

Sunstein proposes what he calls a "New Deal" for speech, a reformulation which abandons the prevailing "marketplace of ideas" model of free expression, in favor of a Madisonian conception based on deliberative democracy. In practice, this would mean, among other things, free media time for political candidates, federal guidelines for the coverage of public issues, and curtailment of the ability of the wealthy to buy access in the media. Taken together, he says, these proposals "would bring about significant changes in the legal treatment currently given to many free speech issues." This is a carefully argued and important book, and a sorely needed contemporary reassessment of the First Amendment.

Copyright 1996 by Scott London. All rights reserved.