Democracy and the Problem of Free Speech.

• Author: Balkin, J.M.

1. INTRODUCTION: CHANNEL SURFING USA

   It's been a tough day. I've spent most of it worrying about the Free Speech Principle. Or at least, the Free Speech Principle described in Cass Sunstein's Democracy and the Problem of Free Speech,(1) a book by an author I greatly admire. According to Sunstein, the primary purpose behind free speech is promoting democratic deliberation about issues of public policy.(2) Hence he divides speech into higher and lower tiers of protection. Speech most worthy of government protection is concerned with deliberation about public issues; the rest is subject to varying degrees of government regulation.(3) It is a thesis with a considerable historical pedigree. Alexander Meimejohn made a similar claim in the 1940's.(4) Moreover, like Meiklejohn, Sunstein emphasizes that the scope of individual rights should consciously be shaped in order to promote the goals of democratic deliberation. Conversely, we should be less concerned about regulation of other types of speech--for example, advertising and pomography--because they do not contribute to democratic deliberation.(5)

   I have been worrying about this thesis all day. Now I am driving home on I-95. I say it's been a tough day, but in fact, I realize that I have it pretty easy. I spend most of my life reading interesting books and articles and talking to other people about what I have read. Because I teach law, it's my job to be informed about "public affairs." But I recognize that most other people in this country have different sorts of jobs. They cook, clean, assemble objects, answer phones, file papers, care for children. They have hard days too, harder than I do. And, in most cases, their jobs do not require (or even permit) them to spend much time working with "public issues."

   I travel over the Quinnipiac bridge to Branford, Connecticut. Usually there is a lot of traffic; it takes about twenty-five minutes on a good day. When I'm in the car, I usually listen to FM radio; AM is full of talk radio--right-wing talk shows like Rush Limbaugh, or "shock jocks" like Howard Stern--which many people are quite devoted to. At least they let folks sound off a bit. I wonder if political theorists who emphasize dialogue had talk radio in mind. (Live from New York, it's the Jurgen Habermas show! Three hours of unconstrained dialogue under ideal social conditions with your wild and rational host, Jurgen Habermas!)

   There is also public radio, which is supported by public grants and listener contributions, but most people listen to popular music on stations supported by commercial advertising. There are lots of news reports on public radio--too many at the end of a long day. Often I simply pop a cassette in my car stereo. On those days I never listen to the radio at all.

   I turn up the volume and think about Sunstein's book.

   [T]o succeed at all, the system [of democratic deliberation] ... must

   reflect broad and deep attention to public issues.... [S]erious issues

   must be covered, and they must be covered in a serious way. Indeed,

   the mere availability of such coverage may not be enough if few

   citizens take advantage of it, and if most viewers and readers are

   content with programming and news accounts that do not deal well or

   in depth with public issues.(6)

   When I get home it is usually a little before 7:00 p.m. I am tired. I say hello to my wife. I sit on the couch and turn on the television. Our house was built in 1971. It has an "open" floor plan--there is no wall separating the kitchen and family room. Apparently this was a popular architectural style at the time the house was built; it is still popular to this day, although now people add cathedral ceilings and whatnot (giving it that authentic midwestern gothic look). One of the advantages of the open floor plan is that you can watch the kids in the family room if you are working in the kitchen. The other great advantage is that you can watch the television.

   Margret and I sit on the sofa and eat our dinner and watch the tube. We flip through the channels determinedly. We are couch potatoes. Sofa spuds. We are on a mission from God. We are looking for entertainment.

   What people now prefer and believe may be a product of insufficient

   information, limited opportunities, legal constraints, or unjust

   background conditions. People may think as they do simply because

   they have not been provided with sufficient information and

   opportunities. It is not paternalistic, or an illegitimate interference with

   competing conceptions of the good, for a democracy to promote

   scrutiny and testing of preferences and beliefs through deliberative

   processes.(7)

   Our cable company offers over seventy channels. About 7:00 p.m. there are mostly sitcoms, game shows, and tabloid TV. The FCC decided to strike a blow for programming diversity by effectively forbidding the major network affiliates to program network-produced shows before 8:00 p.m. Eastern Standard Time.(8) The major result of this regulation is that the independent stations (and Fox) fill the time with reruns of previous network shows. This means I get to see all the episodes of Roseanne I missed over the years. Generally speaking these are shows that appealed to a broad enough segment of the public taste that they have survived long enough to go into syndication. So much for diversity. Meanwhile local network affiliates fill the time with game shows like Wheel of Fortune and tabloid shows like Hard Copy and Inside Edition. So much for attention to serious issues. One station has started showing reruns of The Simpsons. I am delighted. Nothing like good, cynical humor that undermines everything honorable about American life.

   It may seem controversial or strange to say that there is a problem

   for the Madisonian system if people do not seek serious coverage of

   serious issues. Perhaps this suggestion is unacceptably paternalistic;

   perhaps we should take people however we find them. But as I have

   noted, the system of deliberative democracy is not supposed simply

   to implement existing desires. Its far more ambitious goal is to create

   the preconditions for a well-functioning democratic process.(9)

   During the commercials we flip through the channels. We move from The Simpsons to the Simpsons--from Homer and Marge to O.J. and Nicole Brown. The World Tonight is just ending on CNN. The big story of the day is (as usual) the O.J. Simpson case. At 7:00 p.m. there is Hard Copy, followed by Inside Edition. They are tabloid journalism, mostly about Prince Charles and Princess Diana, Woody Allen, Madonna, Michael Jackson and Lisa Marie Presley, and endless variations on the O.J. Simpson case. The stories on each show look very much alike. There are lots of flashy pictures and graphics. Most of each show consists of teasers of upcoming segments that promise us juicy details. (In our next segment, Princess Di's podiatrist reveals all!)

   If sensationalistic scandals and odd anecdotes not realistically bearing

   on substantive policy issues are the basic source of political

   judgments, the system cannot work.(10)

   On Channel 15, there is an attack ad comparing Senator Frank Lautenberg with State Senator Chuck Haytaian. (Paid for by Citizens for Haytaian.) It looks a lot like a comparison of Anacin with Bufferin. Lautenberg says this but Haytaian says that. Lautenberg has done this but Haytaian will do that. Haytaian has more of the pain relievers doctors recommend. Buy--uh--Vote Haytaian for United States Senate.

   On CNN, it's Crossfire, a prime example of democratic deliberation in the electronic age. Michael Kinsley and John Sununu are going after the guests, who can't seem to get a word in edgewise. Now they are going after each other. Nobody gets to talk for more than five seconds without being interrupted. I decide to interrupt them. Zap.

   We keep flipping. If something doesn't catch our interest in a few seconds, we keep on moving. There is a debate between the gubematorial candidates for the State of Utah on C-SPAN. Zap. A discussion of educational policy on C-SPAN2. Zap. There are documentaries on the Learning Channel and the Discovery Channel. Zap. Zap. The evening news on CNN. Zap. Catholic TV. Zap. Talk show on CNBC. Zap. Six channels worth of Branford Community Access. Zap. Zap. Zap. Zap. Zap. Zap.

   It is also important to ensure not merely that diversity is available, but

   also that a significant part of the citizenry is actually exposed to

   diverse views about public issues.(11)

   We go back to The Simpsons (Homer, not O.J.). Homer is screwing things up again. He's a kick. I wonder if I am being a bad citizen. Perhaps I should be informing myself about public issues. Perhaps I should be learning about the General Agreement on Tariffs and Trade. But hey, I did my part. I read Sunstein's book on the First Amendment today. But instead of a law professor, what if I were a steelworker? A bus driver? A waitress? A telephone sales grunt? In short, what if I had a real job?

   [N]o political regime can or should insist that citizens be thinking

   about politics all, most, or even much of the time; people have many

   other things to do. But lack of interest in information about

   government should not be taken as inevitable or as a product of

   "human nature." We know enough to know that lack of interest is

   often a result of inadequate education, perceived powerlessness,

   unsatisfactory alternatives, or a belief that things cannot really be

   changed. Indifference to politics is frequently produced by insufficient

   information, the costs of gaining more knowledge, poor educational

   background, or, more generally, an unjust status quo.(12)

   "Doh!" Homer exclaims.

   Margret and I, in an apparent fit of false consciousness, flip to E!, the "Entertainment and News Authority." E! is completely devoted to the news of the entertainment industry. Just as news programs are becoming more like entertainment, so entertainment itself has become an important component of the news. This phenomenon starts at...