Cass Sunstein’s blatherings at The Volokh Conspiracy about FDR’s “Second Bill of Rights” (addressed here, here, and here) made me want to find out more about his understanding of the proper role of government. I Googled the eminent professor and hit upon “The Future of Free Speech“, which appeared in The Little Magazine, a South Asian journal. Hold your nose and read the whole thing or spare yourself and get the gist of Sunstein’s argument in these excerpts:
My purpose here is to cast some light on the relationship between democracy and new communications technologies. I do so by emphasising the most striking power provided by emerging technologies: the growing power of consumers to “filter” what it is that they see. In the extreme case, people will be fully able to design their own communications universe. They will find it easy to exclude, in advance, topics and points of view that they wish to avoid. I will also provide some notes on the constitutional guarantee of freedom of speech.
An understanding of the dangers of filtering permits us to obtain a better sense of what makes for a well-functioning system of free expression. Above all, I urge that in a heterogeneous society, such a system requires something other than free, or publicly unrestricted, individual choices. On the contrary, it imposes two distinctive requirements. First, people should be exposed to materials that they would not have chosen in advance…. Second, many or most citizens should have a range of common experiences. Without shared experiences, a heterogeneous society will have a much more difficult time addressing social problems; people may even find it hard to understand one another…. [emphasis added]
Imagine … a system of communications in which each person has unlimited power of individual design…. Our communications market is moving rapidly toward this apparently utopian picture….
A distinctive feature of [the Supreme Court’s public forum doctrine] is that it creates a right of speakers’ access, both to places and to people. Another distinctive feature is that the public forum doctrine creates a right, not to avoid governmentally imposed penalties on speech, but to ensure government subsidies of speech…. Thus the public forum represents one place in which the right to free speech creates a right of speakers’ access to certain areas and also demands public subsidy of speakers….
Group polarisation is highly likely to occur on the Internet. Indeed, it is clear that the Internet is serving, for many, as a breeding ground for extremism, precisely because like-minded people are deliberating with one another, without hearing contrary views….
The most reasonable conclusion is that it is extremely important to ensure that people are exposed to views other than those with which they currently agree, in order to protect against the harmful effects of group polarisation on individual thinking and on social cohesion….
The phenomenon of group polarisation is closely related to the widespread phenomenon of ‘social cascades’. No discussion of social fragmentation and emerging communications technologies would be complete without a discussion of that phenomenon….
[O]ne group may end up believing something and another the exact opposite, because of rapid transmission of information within one group but not the other. In a balkanised speech market, this danger takes on a particular form: different groups may be led to dramatically different perspectives, depending on varying local cascades.
I hope this is enough to demonstrate that for citizens of a heterogeneous democracy, a fragmented communications market creates considerable dangers. There are dangers for each of us as individuals; constant exposure to one set of views is likely to lead to errors and confusions. And to the extent that the process makes people less able to work cooperatively on shared problems, there are dangers for society as a whole.
In a heterogeneous society, it is extremely important for diverse people to have a set of common experiences….
The points thus far raise questions about whether a democratic order is helped or hurt by a system of unlimited individual choice with respect to communications. It is possible to fear that such a system will produce excessive fragmentation, with group polarisation as a frequent consequence. It is also possible to fear that such a system will produce too little by way of solidarity goods, or shared experiences….
If the discussion thus far is correct, there are three fundamental concerns from the democratic point of view. These include:
• the need to promote exposure to materials, topics, and positions that people would not have chosen in advance, or at least enough exposure to produce a degree of understanding and curiosity;
• the value of a range of common experiences;
• the need for exposure to substantive questions of policy and principle, combined with a range of positions on such questions.Of course, it would be ideal if citizens were demanding, and private information providers were creating, a range of initiatives designed to alleviate the underlying concerns…. But to the extent that they fail to do so, it is worthwhile to consider government initiatives designed to pick up the slack….
1. Producers of communications might be subject … to disclosure requirements…. On a quarterly basis, they might be asked to say whether and to what extent they have provided educational programming for children, free airtime for candidates, and closed captioning for the hearing impaired. They might also be asked whether they have covered issues of concern to the local community and allowed opposing views a chance to be heard…. Websites might be asked to say if they have allowed competing views a chance to be heard….
2. Producers of communications might be asked to engage in voluntary self-regulation…. [T]here is growing interest in voluntary self-regulation for both television and the Internet…. Any such code could, for example, call for an opportunity for opposing views to speak, or for avoiding unnecessary sensationalism, or for offering arguments rather than quick ‘sound-bytes’ whenever feasible.
3. The government might subsidise speech, as, for example, through publicly subsidised programming or Websites…. Perhaps government could subsidise a ‘public.net’ designed to promote debate on public issues among diverse citizens — and to create a right of access to speakers of various sorts.
4. If the problem consists in the failure to attend to public issues, the government might impose “must carry” rules on the most popular Websites, designed to ensure more exposure to substantive questions. Under such a program, viewers of especially popular sites would see an icon for sites that deal with substantive issues in a serious way…. Ideally, those who create Websites might move in this direction on their own. If they do not, government should explore possibilities of imposing requirements of this kind, making sure that no program draws invidious lines in selecting the sites whose icons will be favoured….
5. The government might impose “must carry” rules on highly partisan Websites, designed to ensure that viewers learn about sites containing opposing views…. Here too the ideal situation would be voluntary action. But if this proves impossible, it is worth considering regulatory alternatives….
This is “libertarian paternalism” on steroids, as it should be given Sunstein’s seminal role in that morally bankrupt endeavor. There many reasons to reject Sunstein’s scheme out of hand. Not the least of the reasons is its administrative cost and intrusiveness.
But the fundamental reason to reject the scheme its authoritarianism. It would effectively bring the broadcast media and the internet under control by a government bureaucracy. Any bureaucracy that is empowered to insist upon “completeness”, “fairness”, and “balance” in the exposition of ideas is thereby empowered to define and enforce its conception of those attributes. It is easy to imagine how a bureaucracy that is dominated by power-crazed zealots who espouse socialism, gender fluidity, “equity”, etc., etc., would deploy its power.
In an earlier post I said that Cass Sunstein is to the integrity of constitutional law as Pete Rose was to the integrity of baseball. It’s worse than that: Sunstein’s willingness to abuse constitutional law in the advancement of a statist agenda reminds me of Hitler’s abuse of German law to advance his repugnant agenda.