Today’s most outspoken critics of the First Amendment have arisen on the left. One of the most reasonable of them is Cass Sunstein, who calls for a “New Deal” on freedom of speech.
Cass Sunstein doesn’t look like a dangerous man. Slight of build, bespectacled, on the intense and nervous side, and untidy in appearance, he looks like the academic he is. But some civil libertarians find him alarming indeed. The author of a recent book called Democracy and the Problem of Free Speech, this University of Chicago law professor has been praised for his views of the First Amendment in places like the Los Angeles Times, where the reviewer said, “Many books on the First Amendment are published every year; very few are as significant as this one, or as likely to work their way–sometime, somewhere–into the everyday law of the land.” That’s an alarming thought to other reviewers, given Sunstein’s advocacy of more government regulation of the media. The Wall Street Journal’s Jonathan Rauch wrote, “Mr. Sunstein provides no evidence that the quality of discourse fails to meet democracy’s needs. This is, it seems to me, a fatal shortcoming. In a country of 22,000 newspapers and magazines, 11,000 commercial radio and TV stations (not counting cable), 41,000 new books a year, and everything from New York Times to Diseased Pariah News, democracy seems to manage just fine.” Reason’s reviewer, Michael McMenamin, gave Sunstein’s proposals for government regulation of newspapers the ultimate epithet, “Nixonian,” pointing out that Nixon was also an advocate of laws mandating a right of reply in print and broadcast media.
The First Amendment to the Constitution–in some respects the most problematic element of the Bill of Rights (What is obscenity? Is it protected speech? Where does free speech end?)–is under fire today, and not only from the usual, easily demonized Bible thumpers of the right. Today’s most outspoken foes of the First Amendment have arisen on the left, a relatively new development, for it has traditionally been the left that has defended freedom of speech from monkey trials and outraged puritans. But now the left’s arguments are dominated by the vividly antagonistic, politically correct polemics of the likes of Catherine MacKinnon and Stanley Fish. Both came out with much-trumpeted books on the First Amendment late last year, which were frequently reviewed with Sunstein’s.
Fish, a Jaguar-driving English and law professor at Duke University, admits he subscribes to the Humpty Dumpty school of language (“When I use a word,” Humpty Dumpty said in a rather scornful tone, “it means just what I choose it to mean–neither more nor less”); he says he expects to be recognized as “Stanley Fish, the guy who believes words mean anything you want them to mean.” In his book There’s No Such Thing as Free Speech . . . and It’s a Good Thing, Too he calls for the suppression of free speech because it’s harmful to women, gays, and racial minorities. The professionally angry MacKinnon, who sees any subordination of women as actionable, has seen some of her anti-free speech proposals make it into law, though the laws were subsequently struck down by the courts. Her women-as-victims philosophy is taken even more seriously than Fish’s ideas, frequently by good liberals who ought to know better but who fear the PC police. One of those good liberals is Cass Sunstein.
But Sunstein sounds eminently reasonable compared to them. In his book, which recently won an award from the Kennedy School of Government, he speaks of “Madisonian” ideals, though some of his critics have charged that James Madison would have been appalled at what’s being proposed in his name. Calling for a “New Deal” for the First Amendment, Sunstein is essentially a statist, a man who still believes government is usually a benevolent force. In his hazy nostalgia for the original New Deal, he seems to overlook its regulatory excesses and the evils committed by its proponents–it was, after all, New Dealers who brought us internment camps for American citizens of Japanese descent.
In his book Sunstein argues that the federal government can lawfully regulate a great deal of speech that’s generally thought of as protected. He speaks against First Amendment “absolutists”–those who believe government cannot and should not regulate speech in almost any form–and he only gauzily defines the regulations he’s willing to subject both print and broadcast media to. Pointing to the deplorable state of news shows today (the “If it bleeds, it leads” mentality, coupled with an increasing number of soft-news features) and the fact that television may never explore controversial subjects because advertisers won’t pay to sponsor such shows, he suggests that the government mandate “high-quality” children’s shows and free media time for candidates, and prohibit advertisers from choosing which programs they’ll sponsor. He writes that government could–and perhaps should–regulate newspapers, though he backs down from this position in conversation. He frequently speaks of the possibilities of “regulatory experimentation,” as if imposing bureaucratic requirements on an industry were like trying a new dessert recipe, something to be discarded if it doesn’t work out. But bureaucracies and the regulations they promulgate are difficult to discard, no matter how destructive they are.
Sunstein once clerked for Judge Benjamin Kaplan of Massachusetts and Supreme Court justice Thurgood Marshall, and he worked for the Justice Department under Carter and Reagan before coming to Chicago. He says his interests lie far less in constitutional law than in technical aspects of administrative law, regulatory policy, and environmental law–he once served on a commission on the future of the Federal Trade Commission–though he’s now working on constitutional issues for several Eastern European countries.
His U. of C. office resembles a landfill. Books, magazines, articles, and newspapers are heaped precariously on every flat surface and a few that aren’t so flat. A boom box rests at a dangerous angle atop a pink parka that belongs to his four-year-old daughter. Dead coffee cups are perched atop drifts of printed matter or lie on their sides beneath the desk.
Our conversation ranges from pornography to regulation of the news media to whether government mandates of things like free time on television for political candidates constitute a “taking,” a violation of the Fifth Amendment guarantee that private property can’t be taken by the government without reasonable compensation. We also explore the question of “natural rights” as set forth in the Declaration of Independence; life, liberty, and the pursuit of happiness are probably the best-known examples, but private property rights are also included. While this may seem somewhat far afield for a discussion of First Amendment issues, it’s actually basic to any such discussion; if the government bestows rights like free speech or private property rights, it can also take them away.
Bryan Miller: How did you come to write your book?
Cass Sunstein: Free speech has not been and is not now my major interest. It is a major interest, but it’s not the thing I focus most on. I got interested in it when I was asked to write a paper on government control of information, specifically on control of scientific speech. I worked on this in the Justice Department a little bit. Suppose you have a company that produces information that can be used militarily–scientific information. Suppose they want to export it to Iraq or something. The government has these regulations that say that technical data is subject to military use, there are controls on the export of that. Well, obviously that violates the First Amendment.
At the Justice Department all of us thought there were big First Amendment problems. I guess that’s how I first came to it, not on any of the more controversial issues, like hate speech and pornography. I had the usual view on speech–“Let’s protect it”–but little by little I thought that was too simple, that if you have scientific data that Iraq could use, even though you couldn’t show there was a clear and present danger, you couldn’t use the usual standards. Does it really make sense to say the government can’t control sales of potentially militarily disastrous materials to a nation that we might be at war with? And I thought, “That’s actually a much harder case than I had thought.” And that made me think that you might want to draw some distinctions–like scientific data might not be covered like political protest.
BM: But the free flow of scientific information in our society is what has allowed us to maintain our lead in technology.
CS: Every administration from Carter to Reagan has suppressed the trading of scientific information to unfriendly nations. Scientific speech is protected; the government has to show that it will lead to misapplication by someone like Saddam. This is seen by some civil libertarians as against the First Amendment. I don’t see it.
BM: But in a case like that couldn’t the government simply say, “We’re going to buy the rights to this information, and we’re not going to allow it to be exported because we own it”? Could the government purchase partial rights?
CS: The government could say that, but I think they probably wouldn’t want to do that, because it would be a deterrent to private activity and extremely expensive. And even if that would be the preferable result, it would be pretty adventurous [in terms of the Constitution].
Actually, that’s pretty creative–no one’s ever raised that. It might well be the sensible approach. I think what would make the government nervous about it is that it would be first of all expensive. And second, if the government’s buying ownership rights in all private scientific work that might have technical [value], that’s big-government co-optation of the private sector. It’s really good to have a lot of people doing scientific work as well as the military.
So I got started thinking that scientific speech ought to be treated differently. And that made me think that some of the cliches that I had been schooled in–and even that I had taught my students the first time I taught First Amendment law–that those cliches were too simple.
BM: Where would you put yourself in terms of people like Catherine MacKinnon and Stanley Fish?
CS: I think Fish’s views on the First Amendment are irresponsible and ridiculous. I’ve reviewed his book basically to that effect. I think he’s very clever, and he has a lot of interesting things to say about a lot of topics. But I think his views on free speech are irresponsible and ridiculous. I would distance myself from him on the strongest possible terms.
I think MacKinnon is extremely important–that she is not ridiculous and is not irresponsible. She started the whole notion of sexual harassment as a civil rights problem, and I think that’s a great insight. I think that the idea that we should shift from thinking that material is offensive to trying to figure out whether it’s harmful–which she’s above all others responsible for–is great. To regulate speech because it’s offensive is troublesome in a free society. Whereas to regulate speech because it’s harmful is much less troublesome. So I think that shift is good. I think that MacKinnon’s position is very poorly understood, and I’ll get to parts where I don’t understand it myself [he laughs], where I feel critical of it. I think to shift from giving prosecutors the authority to sue people to giving women harmed capacity to sue people–that’s a good development. So I like that.
What I feel nervous about is how narrow and how broad her ordinance would be. My view is that any regulation of pornography should be narrow and clear, and this is where I’m uncertain about things she’s in favor of–I’m not clear on exactly what she wants to regulate or allow women to sue for. One thing I feel very clear on is that if a woman has been abused in the production of pornography, if she’s been beaten up, she should have a right to sue the people who produced that.
BM: But you already have a right to go after someone who’s beaten you up. It’s not a First Amendment issue. This is a point you made in your book–that women who are coerced into appearing in pornography should have a right to sue their abusers. You also excluded homosexual pornography from your considerations. I frankly don’t get that, because if young girls can be coerced into making pornography certainly young boys can be prostituted in the same way.
CS: For children I agree with you.
BM: I’m talking about people of legal age.
CS: So far as I know, the evidence isn’t there that gay men, grown gay men, are coerced into pornography.
BM: I believe that there’s a heavy sadomasochistic element in a lot of gay porn. Are grown women really coerced into it?
CS: I’m just saying what I understand the evidence to be. Now if my understanding of the evidence is wrong, I’ll change the position. But I’m pretty clear that there is evidence that many–not most, but many–18-, 19-year-old women are coerced into pornography or abused while there. And I don’t know of any evidence that this is true for men. So to narrow the scope of the restriction, I want to exclude material that doesn’t have to be included. If that’s evidentially wrong, so be it.
BM: From what I’ve read, young men on the street are just as likely to be coerced into prostitution as young women.
CS: I don’t know data on that. I have read some literature on this–in the Meese Commission’s report–and there is evidence for women and not so much for men.
BM: I still don’t see that it’s a First Amendment issue.
CS: The concerns about pornography are in three categories. From the First Amendment point of view, as you say, the least troublesome is women–people–who are abused. Damages there–fine. Now some people have a problem with that. I don’t.
Second is acts of sexual violence that are causally connected with pornography–like a copycat crime. I’m somewhat nervous about that, on the ground that the jury might find causation because it disapproves of the underlying material. And third is the use of pornography in sexual harassment and other ways that are associated with sex inequality.
On each of these tracks the homosexual case doesn’t make the evidentiary grade. The use of homosexual pornography to stimulate acts of sexual violence against gays–naah. There’s no evidence of that. Gay bashing? These people don’t want to have sex with them; they want to beat them up. In terms of use of homosexual material sexually to harass employees–no. I’m also worried about the government going after homosexual material because it just doesn’t like homosexual material.
BM: Isn’t there a danger of the government going after any kind of material because it doesn’t like it? Somebody may say, “Well, this degrades women.” Who decides what degrades women?
CS: I agree with that, which is why I think that a law that prohibited degrading women would be extremely unconstitutional.
BM: It seems to me that you are arguing for a position that if pornographic material degraded women it would be vulnerable. There are some radical feminists, after all, who believe that any act of heterosexual sex is rape. How do you draw the line once you’ve opened it to this interpretation?
CS: I hope I haven’t said, and I certainly don’t believe, that the government can constitutionally regulate material that is quote degrading, unquote. That’s not my view. What I do think is that if one is trying to prevent sexual violence then one has a legitimate reason for regulating speech; whereas if one is trying to regulate offense one doesn’t have a legitimate reason for regulating speech.
The exact scope of a law that would protect against sexual violence in or as a result of pornography–I didn’t try to come up with that. I’m not in the business of writing antipornography law. What I’m trying to do is say that we have this category called “offensive material.” That’s already bannable. That doesn’t mean that we’re now in a police state by any means. What would be better, I think, is to shift from offensive material to sexually violent material–and then to devote attention to the questions of breadth and clarity.
The total amount of regulated sexual material under my approach would probably be smaller than now. Maybe we should go a little more broadly on the degree of violent material we can regulate, but go much less broadly on the degree of offensive material. I agree with you that I have real problems with getting a sufficiently clear and narrow definition. But that’s what we should be devoting our attention to.
We have this category of offensive material–obscenity, it’s called–and many people who are perfectly content with that category go ballistic when they hear any enthusiasm for going after sexually violent material. Now I don’t understand that, because it seems to me sexual violence is a much more legitimate basis for regulation than offense, in that if you go after material that’s associated with sexual violence it’s very possible, if we’re sensitive to free speech issues, that we’ll go after less material.
BM: What is offensive is always questionable and problematical–different groups may draw different lines between what’s art and what’s pornography.
CS: That’s why I don’t like the obscenity category. I’m with you on that.
BM: In your book, you talk a great deal about the “Madisonian ideal” of the First Amendment. Would you care to explicate?
CS: Well, Madison is one of my heroes. He said a couple of things about that. One thing that really does make me feel that the discussion of free speech issues is not working well is that people say, “Either you’re for or against the First Amendment.” For me, the First Amendment is the most precious part of our constitutional heritage. If they could only keep one, that’s it. This is why I’m so unhappy with Fish. He doesn’t treasure our most precious liberty.
BM: I read recently that Madison’s first draft of the First Amendment read, “The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable,” and that he also wrote that the press was “completely exempted from all authority whatever of the United States” because of the First Amendment.
CS: That wasn’t Madison’s view. No one at that time thought the press was free from libel law. That is an extremely adventurous view of history, for which there appears to be no evidence. There is a view that what the First Amendment meant was that Congress and the United States had no power over speech whatever–that the states would have regulatory powers, but the federal government wouldn’t. I don’t believe that was Madison’s view. By the way, I hope I make it clear that the policy recommendations I make don’t flow directly from James Madison.
There aren’t that many people who are against the First Amendment. So the question is, what does the First Amendment stand for? I think history–here I agree with Judge Bork–is entitled to weight. Here I disagree with Judge Bork: history is not decisive. Madison’s conception of the First Amendment is that it was associated with the rejection of the English idea that sovereignty is in the king. In America sovereignty is in the people. The people govern here. And that’s why he thought that any sedition law–saying you can’t libel the government–was illegitimate. Because the people are the government.
So in the Madisonian view the central goal of the First Amendment is a democratic process in which citizens decide what their government is like. And that connotes, in Madison’s view, a deliberative process in which representatives talk together and talk to citizens, who are in turn talking together. And that’s the Madisonian conception of freedom. It is not about bumps and grinds, and it’s not about commercial advertising either. So when people say that any regulation of anything that’s words violates the First Amendment of our constitutional heritage, I think one should think there’s something very peculiar going on. Because our First Amendment in its historical origins was first and foremost, though not exclusively, a democratic notion. It wasn’t about Philip Morris and it wasn’t about Hustler.
BM: What do you see as the problems of the First Amendment?
CS: What I think we’ve done is lost some sight of the Madisonian goals. So the first thing I would do is say that we have to make some distinctions between different forms of speech in terms of their centrality to the First Amendment. This isn’t a new one on my part–this is extremely old–but we’ve kind of lost sight of it. So this isn’t really weird–well, it may be weird, but it’s not revisionist.
I would distinguish between commercial speech and political speech. The Supreme Court has done that and continues to do that. I would distinguish between libel of public figures and libel of nonpublic figures. The Supreme Court has done that. I would distinguish between disclosure of the names of rape victims and disclosure of acts of political officials. The Supreme Court hasn’t quite done that. What I want to have is a kind of two-tier First Amendment, with stuff that bears on political deliberation broadly defined in the top tier and other speech in the second tier. I wouldn’t do what Judge Bork and some others–Alexander Meicklejohn, the great hero of the First Amendment–did, which is to say that speech that isn’t about politics is wholly excluded. I think it’s included; it’s part of speech, so it’s not out of the Constitution. But it can be regulated on the basis of a lesser showing of harm.
Now that does not mean that all bets are off and the government can do whatever it wants. It can never regulate speech because it’s offended by the ideas that the speech contains. If sovereignty is in the people, then the government can’t regulate speech because it doesn’t like the ideas in speech. If you have a work of literature or some book that’s nonpolitical–supposing there’s something we can agree is nonpolitical–
BM: Pride and Prejudice?
CS: Pride and Prejudice. The government couldn’t regulate that because it thinks it doesn’t have the appropriate view of gender relations. That would be an illegitimate justification. The other thing is that if the FCC wants to increase attention to public issues and promote diversity of views, that’s part of our democratic heritage. That’s great. But to say that that’s unconstitutional, as President Reagan’s FCC said or as Rush Limbaugh says–that seems to me very odd.
BM: How are you defining “promoting diversity”?
CS: I’m mostly interested in attention to public issues, in increasing diversity–two views are better than one, three better than two. I wouldn’t want the government to say, “You have to have the feminist perspective or the libertarian perspective.” But if government says, “If you’re going to cover a public issue, include all views”–
BM: You’re talking about a return to the Fairness Doctrine.
CS: I think the Fairness Doctrine had some good features, but I think it was too rigid. It was too much like government command and control. So instead of the government mandating that every station attend to public issues, I’d like more government incentives, less rigid–like a point system. The FCC now has a point system for awarding licenses. I think you could give a point if the audience was a little smaller, but the attention to public issues was a little bigger. So you could say for a radio station that you’re going to be a 30 percent public-affairs station. You could have a slightly smaller audience than a rock station.
BM: Slightly, yes.
CS: [Laughs.] It’s constitutionally acceptable for the government to give that license [on that basis]. I don’t want government in the business of defining what is a diverse view, but what the Fairness Doctrine says is an opportunity to speak for opposing sides. So if you had one view stated, then they had to give a chance for someone to respond.
BM: But there are enough outlets now between the print media, cable, radio, and so forth. Are you really going to expect National Public Radio outlets to carry Rush Limbaugh in order to offset the leftist views generally heard on NPR? Isn’t the idea really to counter the conservatives who have grabbed some public attention lately with their radio shows? The Congress is talking about bringing back the Fairness Doctrine, and critics of the idea call it the “Hush Rush” law.
CS: I hope not. If it were that I think it would be unconstitutional. I would say that Rush Limbaugh would be, in one dimension, helped by the Fairness Doctrine. I think the most important thing it does is require attention to public issues. That’s what I care most about. The diversity-of-views thing is secondary. In a democracy it’s important that people be thinking about what their country’s doing, and Rush Limbaugh on that score is fantastic. I don’t agree with him on everything–in fact, I disagree with him. But I think the fact that he’s attending to public issues and discussing them and getting people thinking about them–wonderful. That’s part of the Madisonian thing. If they’re trying to shut him up, that’s illegitimate. And the diversity thing–I don’t know if that would apply to talk radio. And since he allows liberals to call up and say stuff–I hope it has nothing to do with that.
The Wall Street Journal’s review of my book was entitled “Foe of Free Speech Shoots Mouth Off,” which I didn’t like so much personally, even though it’s kind of funny. But I also didn’t like it for impersonal reasons, because [the book is] about the sound-bite-ization of America. And this is how so much of public debate, over Bork or Lani Guinier, is conducted–in terms of words like “quota queen” or “Turn the clock back.” And that’s a real problem for a democracy. I wouldn’t have government mandates to do something about that, but I like the idea that we see it as a problem.
In terms of diversity-of-view rules–you ask if the problem is solved because we have so many outlets. I don’t think so, because I think so much attention, so much of what happens in the outlets, is a kind of race to the bottom, where you get Bobbitts and Tonya and more Tonya and more Bobbitts–so much that you get more sensationalism and irrelevance. So the news is really about scandals and not about news. I think that’s a real problem in a democracy. So the fact that you have many, many outlets–from the point of view of economic efficiency, that’s good in many ways. But that’s not what Madison’s conception of sovereignty was about. Look at Steve Chapman of the Tribune. I think he’s really good. But when he gets on free speech issues I think he thinks that the First Amendment reflects this libertarian view of marketplaces and consumer satisfaction. Now it’s perfectly fine to believe in that, but it’s not so fine to think that that’s what the First Amendment stands for. It didn’t at its inception–it’s a quite different version of sovereignty.
So if we have many, many outlets, I think that’s not a solution to our problem. It’s a solution to the problem if you want to have the right price and amount of salt. But in a democracy if people aren’t attending to public issues, if they want to correct that through their elected representatives, I think it’s constitutionally OK.
BM: In other words you’re saying the government could mandate that TV stations will have in-depth coverage of public affairs on a regular basis?
CS: I’m not sure I’d favor that, but it wouldn’t be unconstitutional.
BM: Why not? Isn’t it a form of taking to say, “You must put this prime-time hour into talking heads every night, regardless of whether or not you’ll make any money doing it”?
CS: The taking objection would–pardon me for saying so–get nowhere, because the takings clause has never been understood that way.
BM: But somebody has to pay to produce this stuff, and if nobody wants to watch it–
CS: The only person I can think of who’s respectable who would make a serious taking objection would be Richard Epstein, whom I admire and like very much, but . . .
I can explain why, if you want. There’s a First Amendment objection–there’s no taking objection. The reason is that licenses are governmentally granted in the first instance. And if the government conditions the grant of a license on an obligation of this sort it could violate the First Amendment–like if you got a license only if you agreed never to criticize the president. But if the government said you got a license on condition that you agreed to devote 10 percent or 20 percent or 90 percent of your programming time to certain issues, it’s not a taking–it’s just a limited grant. It’s like if the government gives you $100 a week in food stamps when you asked for $500. You got less than you wanted.
So I can see why you think that it’s a taking issue, but it’s not a taking when it’s a grant of less than what you wanted. It’d be a taking if they took your house, but not if they give you a driver’s license on condition that, if you wear glasses, you always wear glasses when you’re driving.
I think there may be a First Amendment objection, on the grounds that you’re telling broadcasters what they can do with their licenses. My view is that that’s not a good First Amendment objection, because the First Amendment has purposes. It doesn’t say that people can talk whenever they want, wherever they want. And one of its purposes is to promote a good democratic process. And this would do that.
BM: But you can’t force people to watch the stuff. For one thing, it’s not like the fabled days when everybody gathered around the television to watch I Love Lucy, and America shut down while almost everybody watched the same thing.
CS: It may be a bad policy initiative. I mean, if no one watches it then it’s a failed experiment.
BM: In your book you say that if we’re not all watching the same program so we can discuss it, it doesn’t do us much good. But there’s nobody except in the remote fastnesses of the desert at this point who can’t watch MacNeil/Lehrer if they’re interested in in-depth public-policy discussions.
CS: I don’t think it would be good if everyone was watching the same show. All I mean is that if we had a million, two hundred million stations and we all watched our own shows, that wouldn’t be fantastic. I think if people don’t watch the shows–or don’t want to watch the shows–then it’s a failed policy experiment, and we shouldn’t do it. All I want to say is, to ameliorate the Constitution as an objection to a policy before we’ve even tried it–the Reagan administration, I think, was rightly concerned about promiscuous resort to the Constitution to foreclose democratic experiments. Now my guess is that if we had an FCC that was more interested in high-quality programming, generally and for children, we’d have changes–both in terms of what was produced and in terms of what was shown. When the FCC–under Reagan, ridiculing the notion that the broadcaster is a trustee–said something like, “It’s just another business. TV is a toaster with pictures,” that’s turning the free speech guarantee in the Constitution into something weird.
BM: It’s all very well to worry about children’s programming, but anybody in this town can turn on Channel 11. Do you let your daughter watch whatever she wants?
CS: No.
BM: No, you’re a good parent. You tell her no. Instead of mandating a certain kind of programming, why can’t parents who are–rightly–concerned about their children watching TV violence, simply tell them no?
CS: I think you’re making good policy arguments. My big response is, make them in the democratic process. That’s where we should be talking about this. The First Amendment isn’t about whether the government can [ban] children’s violent programming or not, so long as the government can make a reasonable showing that it’s harmful. Let’s not resort to the Constitution to foreclose policy debates that are just that question.
As I look around my neighborhood, I see a lot of places where the parents aren’t at home or aren’t educated or don’t care. And the notion that it’s a clear policy judgment that this should be left to parents–I think if you have good parents, educated parents, like you and me, yeah. But I don’t want some three-year-old victimized and watching stuff that is traumatic and harmful because the mother is working or having problems. So the notion of parental correction as the only reasonable protection–I think that’s cruel toward kids who don’t have parents like you and me.
It may be that in the end, once we’ve looked at the data, we’d end up going your route. So I don’t have a firm conviction that government controls on children’s programming are preferable to parental controls. But I don’t want my Constitution foreclosing that democratic discussion.
BM: You seem to want the government to act in loco parentis for the entire nation. I have a problem with the mother of the five-year-old who set fire to his house because he was watching Beavis and Butt-head, blaming the fire on a TV show. Why was the child watching it? And what about the right of adults and older kids–who are not going to go out and set a fire–to watch this thing, tasteless though it unquestionably is?
CS: They do have a right once it’s on. But what the Constitution doesn’t say is that TV programming–I mean, I have to tell you there are people who argued in the 1970s that the Constitution guarantees a right to welfare, the Constitution guarantees a right to cocaine. The notion that the First Amendment of the Constitution guarantees that the government has to allow such violent programming as the market supports–No! That’s not what the Constitution’s about! [He laughs.]
BM: But it’s about letting people read what they want to read and watch what they want to watch.
CS: No. [He laughs.]
BM: And say what they want to say.
CS: No. You can’t give medical advice if you’re not a doctor.
BM: And that’s worked against people like chiropractors and osteopaths and midwives.
CS: Well, it might be a bad policy, but it’s in our Constitution! You can regulate speech. A lot of times I think restrictions on commercial advertising are stupid, but they are constitutional.
BM: I understand that Italy under Mussolini had free speech–except for commercial speech. And oddly enough the government always found something commercial in anything it didn’t like.
CS: Well, that’s pretty bad, that’s pretty bad. But in the United States commercial speech was not protected until the 1970s. If we started defining commercial speech in broad ways, then we’d be in big, big trouble. But it’s never happened–never gonna happen.
BM: How do we defend against it?
CS: Well, the force of reason. It’s prevailed nine-oh on the Court. It’s never happened that anyone’s tried to argue that a book, because it sells for money, is commercial. It’s never happened. It’s not a realistic risk. It’s like saying that if we have minimum-wage laws, which I’m very doubtful about as a policy matter, then we’re socialists. It’s not true.
Your question’s very good and very common. There are good policy objections from the standpoint of liberty to a lot of this stuff. But what I’m trying to do–one thing my book is trying to do–is say the First Amendment doesn’t foreclose democratic debate about hard policy questions.
With commercial speech, I think, I wouldn’t support restrictions on it, as long as it’s truthful and not misleading. And I think there’s some constitutional protection of it because it’s speech. So the government couldn’t regulate it mostly, unless it could show that it’s false or misleading. But I think if the government wants to prevent cigarette advertising, the Constitution does not stand in the way.
A lot of people’s reaction to [my book] is that it’s against free speech, and one reaction I have to that is that that’s good, because that shows a culture that’s so sensitive to its most precious right that people are willing to speak in absolutist terms, even if absolutism isn’t really what they’re committed to. So it’s good to have such an indignant reaction to any suggestion that this is a complicated issue. Another reaction I have is that it’s lazy, because nobody really is an absolutist. You can think of cases like intended bribery, or perjury, or child pornography, or fraudulent real estate deals, or conspiracy. In all of those cases, I think, you can argue about this, but I think you can design them so it’s pure speech, no action.
BM: I think most of them fall into the category of action.
CS: How come?
BM: If you offer somebody a bribe, you’ve committed the act of offering them a bribe.
CS: Not an act. Just words. Why is that an act? You don’t even have any cash on you.
BM: Because if you say, “I will give you 500 bucks”–
CS: Attempted bribery.
BM: I’d still take it as an act.
CS: Why?
BM: Because you’re making an offer, with the intent of following through with it, with the actual bribe, if you’re an honorable criminal.
CS: Well, how about saying, “I’ll vote for you if you give a prolife speech.” Is that an act?
BM: Yes, I think so. Just as I think cross burning is an act and not speech.
CS: Well, I don’t see it. I mean, I can see cross burning as an act because it’s not merely the statement of words. But I still don’t see that it’s an act if you say “I’ll give you money” where nothing has happened except the utterance of words.
BM: I don’t see it as just words because the act is implicit.
CS: The act is?
BM: The promised bribe.
CS: So the government could ban people from saying that they’ll support political candidates if they take certain positions?
BM: No. That’s protected. I was thinking in terms of your basic Springfield shenanigans.
CS: OK. But suppose instead of shenanigans we have someone saying, “I’ll support you if you come out prolife.”
BM: There’s a difference between finding a representative who supports your views and finding a criminal accomplice.
CS: I think that that’s–maybe I’m missing something–but I think that’s solely because the words get the preferred results. [He laughs.]
BM: But I see some finding preferred results in your writing too. I see some of that in deciding which kinds of pornography we’re going to say are degrading.
CS: Well, maybe. But I don’t say degrading speech can be regulated. In fact, I disagree with that very emphatically. But I don’t see that the attempted bribery is an act. I think what underlies the claim that it is an act is the judgment that it’s so closely associated with actlike harms. And then I start thinking that no one’s really an absolutist.
Maybe one can say attempted bribery is an act, but then could one say that false commercial advertising is an act? Or child pornography or libel of private people? There’s a very long list of things that seem like speech, but that the government regulates every day–and that people seem to have no problem with.
Obscene phone calls–are they protected by the Constitution? Are they an act? Purely verbal workplace harassment of the quid pro quo sort of thing? Is that an act? I don’t think so. I think it’s speech.
So one reaction I have to the purported absolutist position is that it’s a good safeguard of liberty. But the other reaction I have is that it’s lazy–that the issues are much harder, and that what we have to do is sort out our very complicated judgments about what speech is protected and what not. And the people who think they’re libertarians on speech have much more intellectual work to do than they’ve done.
There are complexities here, like, for me, attempted bribery. Where do we stop speech because the listener might be persuaded by it? And if someone wanted to put a big poster in downtown Chicago consisting of an obscene word–the F word, say–I think the government could stop that on the ground that it’s trying to protect people from offense. Now, that one I’m nervous about. The government can’t stop speech because people are offended by the ideas it contains–but the government can, in narrow circumstances, protect people from being offended by the means of communication.
BM: How about bullhorns in public demonstrations? Are those protected? A few years ago the local LaRouchies demonstrated outside the opera house, where they were doing Tristan und Isolde. They were screaming at the operagoers–something about Hitler and Wagner being buddies–through bullhorns, only a few inches away from the passing crowd. I complained to a police officer about the bullhorns, and he said, “First Amendment rights.” Is your right to shout through a bullhorn in a crowded theater protected?
CS: No. So long as it’s neutral. I mean, if the government went after the LaRouchies but not after the socialists, then there’d be a big problem. But if the government said, “You can’t hurt people’s ears with loud noises”–just like the government can say that you can’t at two in the morning have rock-music demonstrations–I think that’s constitutionally fine.
BM: So you’re saying your rights end where mine begin.
CS: The core of the First Amendment is really a requirement of viewpoint neutrality. This is in Judge Easterbrook’s opinion invalidating the MacKinnon [pornography] ordinance. I think the general idea is great, but I think the application is wrong. The general idea is that “This law is no good because it forbids stuff that portrays women in conditions of subordination.” It doesn’t go after that which has men and women acting equally. What is really important to me about the opinion is the general principle, which is right. No discrimination. Ever.
So if the government went after people who said, “Fuck Clinton,” it’d be a problem if those were the only people they went after. But if they went after that word, neutrally, with respect to children and people being assaulted by it, then the bullhorn principle would be in effect.
BM: In your book you suggested the possibility of regulating newspapers as a positive thing. Do you propose requiring newspapers to print responses to articles and editorials–
CS: I’m not for it. I’d be against it, on policy grounds. Most people read the morning paper. And, of course, the Reader. [He laughs.] And the newspapers have enough diversity. I think there would be no constitutional problem if the government said that every newspaper has to print on the editorial page a letter–a substantive letter challenging an editorial. For me, no constitutional problem.
BM: You’d say they had to print any given letter?
CS: That I’d leave to the discretion of the newspaper. I mean, if they said you had to print conservative responses to liberals, that’d be a big problem. As long as it’s a neutral guarantee of real diverse statements, then I wouldn’t see a constitutional problem involved.
BM: Do you then get to dictate how many letters they have to print and how long they have to be? If I write a letter to the Tribune disagreeing with their stance on a third airport and they don’t print it, do I have the right to go to court to compel them to print my letter?
CS: If they said that any disappointed letter writer has the right to go to court and sue the newspaper, then I think it’d be unconstitutional. Because that would be not a legitimate effort to promote diversity, but a way of tying up the newspaper in legal knots.
BM: But there’s already plenty of diversity in newspapers, particularly compared to the broadcast media. You can read the New York Times and the Wall Street Journal and get two very different opinions on virtually anything .
CS: Well, I don’t want to regulate newspapers. But I think you could imagine laws that wouldn’t be unconstitutional. There was a Supreme Court case [over a law] that said that the Miami Herald, if it criticized a candidate, had to print a response. Now the Court struck that down. I think it was right, because it was an effort to protect candidates from press criticism. But I think the principle from which the Court spoke was too broad, which was that the Constitution prohibits any interference with the editorial discretion of the newspaper–which I think is not right. I think the First Amendment was triggered by that crazy law. Keep in mind that I’m emphasizing what I think would be constitutionally acceptable, not what I favor.
BM: In your book you said you thought it would be a good idea to require free media time for candidates. Would you like to talk about that?
CS: I’m thinking of the election of governors, the election of mayors, the election of senators, the election of the president. The media has to provide half an hour every month in which the major party candidates get to talk.
BM: Only the major party candidates? But those are the people who can afford to pay for time now.
CS: Well, they–they’re strapped, and a lot of [their money] comes from the taxpayers. As I say, I don’t have policy proposals in mind. What I really want to emphasize is that First Amendment objections to policy proposals ought not to preempt their thinking through.
So free time for candidates I see quite like the Fairness Doctrine, but better. Because the idea would be: as a condition for getting a license you have to [provide time]. You might not want to say just the major party candidates, but anyone who has a demonstrated level of support.
BM: How do they demonstrate it? In the state of Illinois it is very hard for anyone who is not a Democrat or a Republican to get a spot on the ballot, and the allegedly nonpartisan League of Women Voters and other sponsoring groups won’t allow anybody else to participate in their debates. How do you keep minority groups from continuing to be shut out? Aren’t you just perpetuating the status quo by giving more to the people who already have plenty?
CS: These are good questions. I’d like to see how western Europe, which has a whole lot of parties, handles that.
BM: Do they get free TV time?
CS: Oh, yeah.
BM: Aren’t they mostly state-owned systems?
CS: Well, there’s some private too. And ours are in a sense state owned.
BM: I’d dispute that, but I assume you mean the traditional networks. What about the cable companies and all of these little stations and networks that are springing up? Aren’t they going to transform a lot of this?
CS: Yes, a lot.
BM: And if you have one station that’s being forced to provide a free half hour of prime time, isn’t that an unfair advantage for those that aren’t?
CS: I think your question’s a good one. I’m not sure exactly what would be the best system to devise. There are three concerns I have. One is that it’s substantive stuff that’s not sound bites. Another is elections that aren’t based on dollars. And the third is getting substantive stuff before people. It shouldn’t be the case that only Ross Perot gets to have a half hour of TV. The people that have a little less money should have that chance too. Like the major party candidates. [He laughs.]
But exactly how we ensure against freezing others out–I think that’s a very good question. And it may be that in the end the free-media notion ought to be rejected on the theory that we can’t figure out a way to devise a method that’s not exclusionary. All I want to say about this is, the notion that the requirement of free media time violates the First Amendment is quite strange. The notion that it’s a taking is, analytically, less strange, though in doctrinal terms it’s more strange.
BM: I’m not a lawyer.
CS: Well, I think on a lot of these issues nonlawyers think better than lawyers. We’re too trapped in the Supreme Court’s universe.
BM: But the Supreme Court is not God. There are other arbiters. The Supreme Court may have upheld the Alien and Sedition Acts, but Jefferson refused to enforce them. The justices are not the only people who should be looking at constitutionality.
CS: You’re right. That’s the big theme of my other book.
BM: You said in this book that we only have private property because the government lets us. Would you care to explain?
CS: Yes. This is very controversial. And I believe that deep in my heart. Indeed, I believe it’s a truism. I believe that it’s obvious. Let me try to clarify, because some people have been very upset by this.
To say that we have private property only because of government is like saying two plus two equals four. It’s the most obvious thing in the world. And it is not a criticism of the proposition that private property is good. I think it’s great, but we can’t have it as we know it without government. Here’s why: private property can’t exist unless you have government in the picture, with property rights and trespass law. If you have government absence, then you can’t have private property. The system of private property can’t exist in the state of nature. It can only exist when government has gotten there and said, “Those trousers are yours, and no one else can take them, and if they do, they’re committing a violation of your rights.” And if there’s no government person there, there’s no property right.
BM: Government may protect your right to your private property, but it doesn’t create the right.
CS: I think that it creates it. It creates it in the sense that it defines and safeguards it.
BM: But do you believe in natural law, as set forth in the Declaration of Independence?
CS: Well, we have to figure out what’s meant by natural law. I believe the framers, following Hume, thought that property rights were conventional, in the sense that they were a product of conventions. If this seems controversial coming from me–it sounds kind of socialist and threatening. Hayek–the Nobel winner, University of Chicago, the greatest critic of socialism and communism in the 20th century–his book The Road to Serfdom, the Bible of antisocialist thought, says much more emphatically and clearly what I say: that property is a product of government. Says he: The word laissez-faire is confusion. It’s a myth. No one should use the word laissez-faire. We need the government in order to define property rights, create property rights.
BM: Government can help define property rights, and government can defend property rights. But while the Constitution gives us a blueprint for carrying out our democratic form of government, the Declaration of Independence is its soul. And that speaks very clearly about natural rights.
CS: OK. One question is, what’s meant by natural rights? The other question is, what’s meant by created? When I say government creates property rights, I mean the government gives legal effect to them. I don’t mean anything more than that. But I think you think that when I say the government creates property rights that means something more than that.
BM: Yes.
CS: And what would that more be?
BM: It sounds as though you’re saying that you only have the right to say that necktie you’re wearing is yours because the government says it’s yours.
CS: I think that’s true, in the sense that if the government didn’t say this was mine chances are I wouldn’t be wearing it now.
BM: But that gets you back to the survival of the fittest–if you were big enough and mean enough to protect your tie from tie predators you would still have it. What government gets you then is a leveling effect, an equalizer, so that tie snatchers cannot make off with your neck wear with impunity.
CS: All I mean by saying government creates property rights–and I really do deeply believe that–is that there could not be a property right without government. There could only be survival at best. Now I don’t mean anything more than that. What could that more be?
BM: If the government creates the right, then government can abolish the right.
CS: No, I don’t believe that. I think that the government creates the right to racial equality, but that they can’t abolish that.
BM: Racial and gender equality should be included under natural law: “All men are created equal.” That’s covered under the Declaration of Independence.
CS: OK, OK, OK. So now have I been clear on what I mean by how it creates it? I certainly don’t mean that government creates it, therefore it can abolish it. I think my right to my house is a government creation, but if the government takes it from me it’s going to have to pay me. So I don’t think that to say government creates property rights is to disparage property rights in the least. I think they’re fantastic. I think Eastern Europe ought to have them. And, boy, does government have to create them.
BM: They’ve got their own mess over there.
CS: They do.
BM: There you’re talking about the property rights of dispossessed people–the communists threw the owners out 50 years ago, and now their descendants are trying to reclaim–
CS: Well, that’s very complicated. The one thing that’s made me even more clear that this is like two plus two equals four. If you tell Eastern Europe, “OK, just protect property rights or do laissez-faire,” they look at you like you’re crazy. “We don’t know who owns anything.” A hotel or a house or a restaurant–who owns it?
BM: That’s a different situation.
CS: That’s the state of nature. [He laughs.]
BM: The problem is that you’ve got people with a legitimate claim, but how do you find them or their descendants?
CS: Well, that’s not what they’re saying. They’re saying that they don’t have any legal definition of who owns a hotel.
BM: No doubt the people from whom it was stolen could come up with a definition.
CS: It’s a very complicated question about restoration. Natural rights–well, it’s clear that property rights aren’t natural rights, though it’s clear that they’re indispensable to freedom, democracy, and prosperity. I love ’em, but I don’t think they’re natural.
BM: We’ll have to agree to disagree.
CS: But how can you disagree with that? I think that when people say property rights are natural, what they mean is they’re great and crucial. And I don’t disagree with that, but–
BM: If you cannot sleep at night knowing that your property is still going to be there for you in the morning, you don’t have freedom.
CS: I agree.
BM: And the right to freedom, the right to liberty, is a very basic right. People may not have it over much or most of the world, but that doesn’t mean it’s not a very basic right.
CS: I agree with that. I can’t tell you how much I agree with that. But do I believe in natural rights at all? I would have to figure out what natural means. Rights are inalienable, the Declaration of Independence says. That, I believe, is a good idea–that the people can’t alienate their rights and the government can’t take their rights from them. So that I’m for.
I’m not a philosopher, just a lawyer. But I think that free speech has a different status from property rights, in the sense that it doesn’t depend for its existence on governmental action in quite the same way that a property right does. I do believe that it’s different, and I believe that, as important as it is, speech rights are even more important. But I have to figure out what’s meant by the claim that they’re “natural.” Are they the most fundamental thing there is? Speech rights are, probably. I do believe there are aspects of our constitutional heritage that speak as if speech is natural. But the whole debate over natural rights has a very complicated history. I’m told by Locke specialists that when Locke wrote about “natural rights” he didn’t mean it literally. He was responding to claims about the natural or divine right of kings and met fire with fire by talking about nature. It was rhetorically necessary.
BM: “Natural law” is what separates civilized human beings from savages.
CS: Well, I do believe there’s a world of savagery in which property rights aren’t respected, which is why I think property rights aren’t natural. Is free speech protected in a state of nature? No. A savage could beat someone up for saying something they don’t like. So if what’s meant by nature is “preexists society,” I don’t think that’s true of free speech. So then there’re these stories told about when people leave the state of nature for civil society they give up some rights and maintain others. And I don’t understand what that’s all about. I believe there’s some argument being made there about the fundamental character of certain rights.
I hope I’ve been able to clarify this, because I think that the word “natural” often means “extremely important.” And if so, we ought to use that word.
BM: “Natural” as in “fundamental,” the thing that everyone yearns for. Even though a savage may not be able to keep a string of beads around his neck, the desire to be able to is fundamental.
CS: That’s good. If what you mean by “natural” is something that all human beings yearn for and deserve–sure. Speech and property.
When I think of “natural,” I think of stuff that preexists society. It’s natural to have to go to the bathroom and have to eat. [He laughs.] But it’s not natural to own property.
BM: But human beings are by nature very territorial and very acquisitive.
CS: Yes. To want property is natural, probably. But to property rights–that you can’t have without government.
BM: Let’s talk about the “New Deal for speech.” What do you mean by a “New Deal”?
CS: This is very related to what we’ve been talking about. Roosevelt, in arguing for the New Deal, said that the laws of economics are not made by nature; they’re made by human beings. In arguing for social security, he referred to this man-made world of ours, saying that poverty was a product of the system of supply and demand and that it’s predictable that certain people are going to be poor. He said that the existing practices produced existing benefits and burdens and that we ought not to say that the government is prohibited from redressing things that its own system has produced. We ought to evaluate its efforts at redress pragmatically, in terms of their results. That was Roosevelt, the great experimenter. Some of his experiments were really bad–
BM: When I think of the New Deal I think of giant bureaucracies and red tape and generations of welfare families.
CS: Yes, but also think of the fact that the poverty rate among old people is extremely low, and it used to be extremely high. There’s a lot to be said against Roosevelt’s particular initiatives, but what I’m saying is that a democracy ought to be allowed to experiment with different things, like minimum-wage and maximum-hour laws. The Constitution shouldn’t foreclose those experiments.
What I mean by a New Deal for speech is that sometimes–in the campaign- finance area and the broadcasting area–the government has done stuff like the Supreme Court did with the New Deal and said, no government intervention. I think that the broadcasting market’s a creation of government–in the sense that it gives out the licenses, protects the rights–and we ought to evaluate it in terms of whether it promotes or disserves the purposes of assisting free expression. Now, if an experiment like free time for candidates would be bad, it would be bad. Or if an experiment like greater incentives to attend to public issues would be a failure, in the sense that no one would watch the shows, it’s a bad experiment. But what I mean by mediocre speech is that efforts to make things better than they now are shouldn’t be constitutionally off-limits, especially if they’re efforts to bring about more democratic attention to issues, more diversity of views, and less distortion of the political process by economic inequalities. I think it’s not so great that advertisers can get a movie off the airwaves because it takes a stand on abortion.
BM: That’s one of the things you said in your book that really caught my eye: that companies shouldn’t be allowed to decide where their advertising dollars are going to go.
CS: Well, I would say it would not be unconstitutional for the government to try to make sure that they don’t influence [programming]. I mean, you can imagine a system where advertisers can give money without knowing what program the advertisement will be on.
BM: But isn’t it legitimate for an advertiser to try to target its advertising dollars where they’ll help it the most? If you’re a diaper maker, do you want your commercials appearing on a show about abortion?
CS: Hmm. Well, we might have some exceptions for stuff that’s really absurd. Exactly how to design this, again, I’m not sure. But I don’t think the Constitution should forbid government from thinking of ways to ensure, for example, that Coca-Cola doesn’t pull all its money because of a documentary that portrays Coca-Cola in a bad light, as happened a few years ago.
BM: Why should Coca-Cola be forced to subsidize programming it doesn’t like?
CS: Because withdrawing that advertising money can stifle the free exchange of ideas. Now, I think advertisers have a perfectly legitimate [reason] to be concerned about what’s going on. A car manufacturer might not want to be supporting a newspaper that’s exposing car problems. And I think the government could legitimately try to ensure that there isn’t a chilling effect on press performance by advertiser wishes. So long as that’s neutrally done, that not only wouldn’t violate the First Amendment, but it might be a good policy initiative.
BM: An advertiser could be required to sponsor programs that attack it? General Motors could be forced to put ads on a Ralph Nader special about Corvairs? What happens to the advertiser’s right to free choice?
CS: It’s well established that it doesn’t violate shopping centers’ rights to maintain access to political protesters, even though those are private property, if the state provides an access right. I don’t think anyone would disallow [such a requirement] as a matter of constitutional law; I think the shopping-center law would hold. There wouldn’t be any First Amendment right at stake, because speech wouldn’t be at stake.
If we were extremely strong libertarians we might think there was a violation of some right. That’s a viable theory–it suggests a form of judicial activism that would make Roe vs. Wade look tepid! If you’re forcing an advertiser to say something they disagree with, then there’s a problem. Note that what I’m concerned about is that controversial issues won’t be dealt with for fear of advertiser reprisal.
So in a New Deal for speech, what I mean is things like what we’re talking about bottomed on the recognition that, especially, broadcasters’ licenses are property rights that government’s conferred. It doesn’t mean that government can do whatever it wants with them.
Free speech in the United States right now is not in a terrible state. It’s much better than Eastern Europe as it was; but it’s not fantastic. When the news shows are all focused on the Bobbitt trial, when the news programs often are dealing with the movies before the news, and when 50 percent or so of the people vote–this isn’t perfect.
BM: But if the people who are voting are the people who are interested in voting, do we gain anything by having everyone who’s technically eligible to vote going to the polls without knowing anything about the candidates or the issues?
CS: No, no, no. But part of the reason people don’t know any better is our educational system. And one thing that I think is legitimately part of our educational system is broadcasting. I think broadcasters generally see themselves as being in the education business. And this has been the tradition, that people see themselves as trustees for the public interest. So if there’s some educative function of broadcasting–
BM: But how are you going to regulate what gets dealt with in the news? I mean, even the New York Times had the Bobbitts on the front page.
CS: I wouldn’t stop them. But I think the first thing to do is to point out that the situation isn’t fantastic. The second thing to do is to think about guidelines by which to encourage attention to public issues. One reason the Bobbitt thing has been getting so much attention is that it sells newspapers.
BM: It’s a “man bites dog” story. If it were just a man cutting up a woman, it wouldn’t be news.
CS: And that in itself is quite interesting. I think a lot of the interest in it is prurience. What I’m trying to say is that the free-speech market–I almost called the book The Speech Market, because it is a market and it’s far from perfectly aligned with Madison’s democratic goals. What we have is something that’s aligned with Adam Smith’s stepchild, which is Chicago School economics. That’s a fine set of ideas; I generally think it’s right. But it’s not my understanding of what our First Amendment’s about.
BM: I’d still like to know how you’re going to regulate news shows so that they don’t do snippets on the Bobbitts or ten-second sound bites.
CS: I don’t have any regulatory proposals for that. I like the idea of the FCC talking about that. I think a lot of what’s needed is just governmental encouragement.
BM: One of the things you mentioned in your book is that you’d like to have a New Deal without all of the vast regulatory apparatus. How do you avoid that?
CS: My preferred proposals are something like the PBS model of taxpayer subsidies for stuff like high-quality public-affairs shows. Or, just as a price for getting a license, you have to turn a certain percentage of your profits over to other stuff. Or a point system.
I don’t like the idea that minority-owned businesses get a point. That’s the current law. I think much better would be public-affairs programming as a point or stuff on a race-neutral basis–something that attends to sectors of the community that don’t have programming that they like. That gets a point. I like point systems. Now, it wouldn’t bring us to Madisonian utopia, but I can’t see a way of doing that without getting the government in business I think it shouldn’t be gotten into.
The “New Deal for speech” might be a dramatic phrase, but it’s not a set of extreme proposals. The Federal Communications Commission, for most of its history, saw as one of its principal goals the fostering of democratic dialogue and the insulation of broadcasters from undue economic pressures–so that what was on TV would not be skewed by economic inequality. I think in America we’re committed to political equality, but we’re not committed to economic equality–and that’s good. One person, one vote; not everyone has the same amount of money.
So the idea of a New Deal for speech is essentially this idea of political equality, which has been the FCC’s goal for a long, long time. If what the FCC tries to do is say not that television is a toaster with pictures, but that broadcasters have a duty, a democratic duty, which first will be encouraged just through talk and second will be rewarded with incentives, I think that’s great. The Fairness Doctrine was upheld by a unanimous Supreme Court–not one dissenter. And I have a lot of questions about it. It seems too invasive of liberty, too rigid for me. But [saying] the basic idea of encouraging attention to public issues and diversity is inconsistent with the Constitution of the United States–that’s when I think we’ve lost sight of what the amendment’s about.
Art accompanying story in printed newspaper (not available in this archive): photo/Paul Merideth.