An (Imaginary) Interview with Cass Sunstein

This is the last of this series of posts about Cass Sunstein, unless he deigns to reply to me. I have many positive things to say about many subjects, and I have been neglecting other targets of opportunity.

Liberty Corner: Apropos the preceding post, I wish you, Cass Sunstein, would quit beating around the bush. If you want something, you have to spell it out. Don't be coy, Cass, tell us how you would amend the Constitution to ensure that all internet users are exposed to points of view that they would otherwise eschew.

Cass Sunstein: Let's start with the First Amendment, which deals with freedom of speech and of the press, among other things. I'm suggesting that we simply recognize that not all speech is protected and use that fact to force the purveyors of extreme points of view to acknowledge opposing points of view.

LC: Tell us how you would restate the First Amendment so that it does the right thing.

CS: I would add the following codicil: Congress, in order to promote a more efficacious deliberative democracy, may require persons to acknowledge opposing points of view when they communicate on a subject. Further, Congress may require communications media to assist in that endeavor and to transmit points of view other than those which they might willingly transmit.

LC: So, in the name of political freedom you would curtail freedom?

CS: I don't think of it that way. We're all more free, in an intellectual way, when we're exposed to a diversity of experiences and points of view. Besides, freedom is something we receive from government; government may therefore withdraw some freedom from us when it's for our good.

LC: Let's assume, for the sake of this discussion, that people desire political freedom, and the other types of freedom that flow from it. Would we really be more free if government forced us to hear or at least take part in the transmission of views with which we disagree, or would we simply be encumbered with more rules about how to live our lives?

CS: That's a negative way of looking at it.

LC: Let me draw an analogy from fiction. Have you read Portnoy's Complaint?

CS: You aren't about to slur my ethnicity, are you?

LC: No, not at all. It's just that the novel's protagonist, Alex Portnoy, has an experience that reminds me of your proposed codicil to the First Amendment. His mother stood over him with a knife in an effort to make him eat his dinner. Do you think government should act like Alex Portnoy's mother?

CS: Well, she didn't need to pull a knife on Alex, but she obviously needed to exert her maternal authority.

LC: You don't think Alex would have voluntarily eaten his dinner, in a day or two, rather than starve?

CS: Why take chances?

LC: So not doing what's good for one's self is the moral equivalent of doing harm to another?

CS: Yes. Alex's mother obviously suffered from anxiety caused by Alex's refusal to eat his dinner.

LC: But Alex's mother -- being older and larger than Alex, though evidently not wiser -- might have reflected on the ramifications of her threat. She didn't really save Alex from starvation, but she did cause him to disrespect and hate her.

CS: What does that have to do with my version of the First Amendment?

LC: It has a lot to do with what happens to the cohesiveness of society, which you seem to value, when government forces people to behave in certain, non-neutral ways. You can figure it out if you think about it. But let's move on. What about the rules that would require the acknowledgement of opposing points of view? Who would make those rules? In particular, with respect to web sites, who would select those "sites that deal with substantive issues in a serious way"? And who would identify "highly partisan" web sites that “must carry” icons pointing to those "sites that deal with substantive issues in a serious way"?

CS: An agency authorized by Congress to do such things.

LC: The FCC, for instance?

CS: The FCC might be the appropriate agency, but Congress would have to take its oversight role more seriously.

LC: Pressuring the FCC to pressure a broadcaster to stifle a certain radio personality isn't enough for you?

CS: What?

LC: Never mind. Let's assume it's the FCC, whose members are appointed by the president, subject to confirmation by the Senate. The FCC is essentially a political body, composed of some mix of Democrats and Republicans.

CS: That's inevitably the case with any regulatory agency.

LC: Right you are. So the FCC, or any agency newly created for the purpose, wouldn't be neutral about such issues as what constitutes an opposing point of view, which sites deal with substantive issues in a serious way, and which sites are highly partisan.

CS: You have to rely on the judgment of those appointed to perform the task of making such evaluations.

LC: But not the judgment -- or preferences -- of purveyors of news and views?

CS: No, because they're likely to be wedded to their positions and not open to opposing ideas.

LC: Unlike the political appointees on the FCC?

CS: Well, those political appointees would be scrutinized by Congress.

LC: Which, of course, is always balanced and neutral in its views, and which never tries to inflict particular points of view on regulatory agencies.

CS: You're trying to get me to say that my version of the First Amendment would impose the judgment of politicians and their minions on the news and views of corporate and individual communicators.

LC: Isn't that exactly what would happen?

CS: But we're better off when our duly elected representatives and their agents make such decisions. That's how deliberative democracy is supposed to work.

LC: Oh, we elect them to tell us how to live our lives?

CS: If that's what it takes to make us better citizens, yes.

LC: You think coercion of that sort would make us a more cohesive society and would make us more appreciative of points of view that differ from our own?

CS: It's worth a try.

LC: And where do you stop?

CS: What do you mean?

LC: How do you know when society is sufficiently cohesive and that an acceptable fraction of its members have become appreciative of differing points of view? What do you do if society simply refuses to cooperate with your program?

CS: Well, as to your first question, the FCC would simply monitor the content of broadcasts and web sites. As to your second question, the FCC might shut down uncooperative outlets or place them in the hands of an appointed operator, much as bankruptcy courts use court-appointed receivers to hand the affairs of bankrupt businesses. In the extreme, the FCC might have to resort to criminal sanctions -- fines and imprisonment. But that probably wouldn't happen more than a few times before communicators began to comply with the law.

LC: Or simply quit trying to communicate.

CS: Well, that's always an option.

LC: I'm beginning to get the picture. Before we stop, however, I'd like to pose a hypothetical. Suppose the FCC were composed entirely of members who had a peculiar regard for the original meaning of the Constitution. Suppose, further, that we had, at the same time, a president who felt the same way about the Constitution, and that Congress was in the hands of a sympathetic majority. Now, in the course of monitoring web sites the FCC comes across your essay on "The Future of Free Speech" and deems it an extremist screed, subversive of the Constitution. What do you suppose would happen?

CS: The FCC should order The Little Magazine to post a link to Liberty Corner's commentary on my essay. Or it might order The Little Magazine to remove my essay from its site.

LC: Suppose the FCC did neither. Suppose the FCC gave the matter some thought and concluded that it would do nothing about your essay. Instead, it would hew to the original meaning of the Constituion and let you bloviate to your heart's content.

CS: I would turn myself in to the FCC and demand to be sanctioned to the letter of the law.

LC: Oh, really? Can I count on that? I just want to be sure that you're willing to live by the rules that you would impose on others.

CS: Most assuredly.

LC: Thank you very much for your (imaginary) time. That's all for now. But don't worry, I'll be keeping an eye on you.