Free Speech,
The Framers' Greatest Contribution
excerpted from the book
Why Societies Need Dissent
by Cass R. Sunstein
Harvard University Press, 2003,
paper
p97
The free speech principle forbids government from punishing people
for publicly rejecting widely held opinions. To this extent, it
creates crucial protection against the blunders and pathologies
that can come from social influences on behavior and belief. At
the same time, freedom of expression diminishes the gap between
a nation's leaders and its citizens, and for that reason promotes
monitoring of the former by the latter. James Madison, the author
of the first amendment, used this point to object to the whole
idea of a "Sedition Act," which would criminalize certain
forms of criticism of public officials. Madison urged that "the
right of electing the members of the Government constitutes ...
the essence of a free and responsible government" and that
the "value and efficacy of this right depends on the knowledge
of the comparative merits and demerits of the candidates for the
public trust."'
But what, in particular, does the free
speech principle require In the common understanding, the principle
bans government from "censoring" speech of which it
disapproves. In the usual cases, the government attempts to impose
penalties, whether civil or criminal, on political dissent, art,
commercial advertising, or sexually explicit speech. In most cases,
these penalties are unacceptable. The constitutional question
is whether the government has a legitimate and sufficiently weighty
reason for restricting the speech that it seeks to control. In
a free society, government cannot defend restrictions by pointing
to the risk that the speech will prove dangerous or harmful. Even
a significant risk is insufficient to justify censorship. Dissenters
are permitted to criticize official policy in both war and peace.
Nor is it enough for government to say that the speech is likely
to persuade people to reject received beliefs-or even to accept
false beliefs. Officials cannot regulate speech on the ground
that people will be convinced by it. If government is going to
restrict speech that it fears, it must show that the speech is
likely to cause, and is intended to cause, imminent lawless action.
This burden might be met in rare cases, as, for example, when
someone is disclosing the names of undercover agents for the Central
Intelligence Agency in an effort to put their lives at risk. But
speech under this highly protective standard is rarely subject
to government control.
Of course, the right to free speech extends
well beyond politics. But at its core, that right is designed
to protect political disagreement and dissent. In this way, it
furnishes the foundation for democratic self-government. The protection
of dissenters is intended not only to protect individual speakers
but also to protect the countless number of people who benefit
from the courage, or foolhardiness, of those who dissent. When
someone blows the whistle on government fraud or deceit, the real
winners are members of the public, not the whistleblower. Legal
protection of whistleblowing is an effort to ensure the free flow
of information.
As an illustration of this particular
point, consider the Pentagon Papers case.' In 1969 and 1970 Daniel
Ellsberg, a former official in the Department of State, copied
a top-secret study of the Vietnam War. The study explored the
formulation of U.S. policy toward Indochina. Its forty-seven volumes
included discussions of secret diplomatic negotiations and military
operations. Ellsberg gave the Pentagon Papers to the chairman
of the Senate Foreign Relations Committee, Senator William Fulbright,
and later to The New York Times and The Washington Post, both
of which sought to publish excerpts. Ellsberg was a classic whistleblower.
He believed that the government had lied to its citizens and that
the release of the Pentagon Papers was necessary to set the record
straight. For its part, the government's fears extended beyond
its own embarrassment; officials claimed that disclosure would
impair the nation's ability to negotiate with its enemy, thus
prolonging the war and leading to countless avoidable deaths.
Invoking this concern, the government sought to enjoin publication.
Dividing five to four, the Supreme Court
rejected the government's arguments. Justice Hugo Black wrote
that government cannot "halt the publication of current news
of vital importance to the people of this country." He added
that the government's "power to censor the press was abolished
so that the press would remain forever free to censor the Government.
The press was protected so that it could bare the secrets of government
and inform the people." To say the least, judges do not usually
take a strong stand against the President in the midst of war.
Other Supreme Courts, with other justices, might not show similar
courage. But it is revealing that the government's fears proved
unjustified. The publication of the Pentagon Papers did not cause
demonstrable harm. Decades later, the Pentagon Papers case stands
as a dramatic symbol of the constitutional protection afforded
to disclosure and dissent... With an appreciation of the importance
of dissent, we can better understand what has become the "core"
of modern free speech law: a prohibition on government discrimination
against any point of view.
p106
The twentieth century saw the emergence of the great .' "general
interest intermediaries"-daily newspapers, weekly news-magazines,
commercial broadcasters, and public museums. These private institutions
came to serve, for better or worse, some of the functions of traditional
public forums. They did, and do, this by exposing people to topics
and ideas that they have not specifically selected and also by
creating, much of the time, something like a shared culture. To
the (limited) extent that dissenters are able to reach a diverse
public, it is because they are able to have access to information
sources that themselves serve diverse people.
p107
if the daily newspaper is doing a decent job, readers will come
across a wide range of topics and opinions, including those in
which they might have expressed no interest in advance.
p107
Newspapers, weekly newsmagazines, and evening news shows have
some such effects every day. One of their primary social functions
is to expose readers and viewers to a range of new topics and
dissenting opinions.
p109
... a well-functioning system of free speech. But it should be
clear that such a system depends not only on freedom from censorship
but also on private and public institutions ensuring that a wide
range of views will be heard.
p109
Free societies depend on a high degree of receptivity, in which
many perspectives are heard and in which dissent and disagreement
are not unwelcome.
p109
Even in democracies, disparities in power play a large role in
silencing dissent-sometimes by ensuring that dissenters keep quiet,
but more insidiously by ensuring that dissenters are not really
heard. Social science offers relevant lessons here; it shows that
members of low-status groups-less educated people, African Americans,
sometimes women-carry less influence within deliberating groups
than their higher-status peers. In the actual world of deliberation,
powerless dissenters face an array of obstacles to a fair hearing.
The point underlies a broader one: The
free speech principle is mostly about law, not about culture.
A legal system that is committed to free speech forbids government
from silencing dissenters. That is an extraordinary accomplishment,
but it is not nearly enough... people often silence themselves
not because of law but because they defer to the crowd... A well-functioning
democracy has a culture of free speech, not simply legal protection
of free speech. It encourages independence of mind. It imparts
a willingness to challenge prevailing opinion through both words
and deeds. Equally important, it encourages a certain set of attitudes
in listeners, one that gives a respectful hearing to those who
do not embrace the conventional wisdom. In a culture of free speech,
the attitude of listeners is no less important than that of speakers.
p111
Greater information reduces conformity effects ...
p112
Political extremism is often a product of group polarization.
In fact, a good way to create an extremist group, or cult of any
kind, is to separate members from the rest of society. The separation
can occur physically or psychologically, by creating a sense of
suspicion about nonmembers. With such separation, the information
and views of those outside the group can be discredited and hence
nothing will disturb the process of polarization as group members
continue to talk.
p145
... the American founders' largest contribution consisted in their
design of a system that would ensure a place for diverse views
in government. The founding period saw an extraordinary debate
over the nature of republican institutions, and in particular
over the legacy of Montesquieu. Montesquieu was a revered source
for all sides and a central figure in the development of the idea
of separation of powers. The antifederalists, eloquent opponents
of the proposed Constitution, complained that the framers had
betrayed Montesquieu by attempting to create a powerful central
government, one that was impossibly ill-suited to American diversity.
In their public writings during the debates over whether the Constitution
should be ratified, many of the antifederalists urged that a republic
could flourish only in homogenous areas of like-minded people.
An especially articulate antifederalist wrote under the name "Brutus,"
in honor of the Roman republican who participated in the assassination
of Julius Caesar to prevent Caesar from overthrowing the Roman
republic. Brutus spoke for the republican tradition when he told
the American people: "In a republic, the manners, sentiments,
and interests of the people should be similar. If this be not
the case, there will be constant clashing of opinions; and the
representatives of one part will be continually striving against
those of the other."
Advocates of the Constitution believed
that Brutus had it exactly backwards. They welcomed the diversity
and the "constantly clashing of opinions." They affirmatively
sought a situation in which "the representatives of one part
will be continually striving against those of the other."
Alexander Hamilton spoke most clearly on the point, urging that
the "differences of opinion, and the jarring of parties in
[the legislative] department of the government... often promote
deliberation and circumspection; and serve to check the excesses
of the majority."
p146
Luther Gulick was a high-level official in the Roosevelt administration
during World War II. In 1948, shortly after the Allied victory,
Gulick delivered a series of lectures, unimaginatively titled
Administrative Reflections from World War II, which offered, in
some (tedious) detail, a set of observations about bureaucratic
structure and administrative reform.' In a brief and far-from-tedious
epilogue, Gulick set out to compare the warmaking capacities of
democracies with those of their Fascist adversaries.
Gulick began by noting that the initial
evaluation of the United States among leaders of Germany and Japan
was "not flattering. We were, in their view, "incapable
of quick or effective national action even in our own defense
because under democracy we were divided by our polyglot society
and under capitalism deadlocked by our conflicting private interests."
Our adversaries said that we could not fight. And dictatorships
did seem to have real advantages. They were free of delays, inertia,
and sharp internal divisions. They did not have to deal on a continuing
basis with the contending opinions of a mass of citizens, some
with little education and little intelligence. Dictatorships could
also rely on a single leader and an integrated hierarchy, making
it easier to develop national unity and enthusiasm, to avoid the
surprises and reversals that come from a free citizenry, and to
act vigorously and with dispatch. But these claims about the advantages
of totalitarian regimes turned out to be bogus.
The United States and its allies performed
far better than Germany, Italy, and Japan. Gulick linked their
superiority directly to democracy itself. In particular, he emphasized
"the kind of review and criticism which democracy alone affords.
With a totalitarian regime, plans "are hatched in secret
by a small group of partially informed men and then enforced through
dictatorial authority." Such plans are likely to contain
fatal weaknesses. By contrast, a democracy allows wide criticism
and debate, thus avoiding "many a disaster." In a totalitarian
system, criticisms and suggestions are neither wanted nor heeded.
"Even the leaders tend to believe their own propaganda. All
of the stream of authority and information is from the top down,"
so that when change is needed, the high command never learns of
that need. This is a description of groupthink in action. In a
democracy, by contrast, "the public and the press have no
hesitation in observing and criticizing the first evidence of
failure once a program has been put into operation." Information
flows within the government-between the lowest and highest ranks-and
via public opinion.
With a combination of melancholy and surprise,
Gulick note that the United States and its allies did not show
more unity than Germany, Japan, and Italy. "The gregarious
social impulses of men around the world are apparently much the
same, giving rise to the same reactions of group loyalty when
men are subjected to the same true or imagined group threats."'
Top-down management of mass morale by German and Japanese leaders
actually worked.
Dictatorships are less successful in war
not because of less loyalty or more distrust from the public but
because leaders do not receive the checks and corrections that
come from democratic processes. (The military failures of Saddam
Hussein are a recent case in point, though Saddam also faced widespread
internal disloyalty.)
Gulick is claiming here that institutions
perform better when challenges are frequent, when people do not
stifle themselves, and when information flows freely. Of course,
Gulick is providing his personal account of a particular set of
events, and we do not really know to what extent success in war
is a product of democratic institutions. The Soviet Union, for
example, fought valiantly and well even under the tyranny of Stalin.
But Gulick's general claim contains a great deal of truth. Institutions
are far more likely to succeed if they subject leaders to critical
scrutiny and if they ensure that courses of action will face continuing
monitoring and review from outsiders-if, in short, they use diversity
and dissent to reduce the risks of error that come from social
influences.
Gulick's emphasis on the values of open
debate is strengthened by one of the most striking findings in
the last half-century of social science: In the history of the
world, no society with democratic elections and a free press has
ever experienced a famine. As Nobel Prize recipient Amartya Sen
has shown, famines are a product not merely of food scarcity but
also of social responses to food scarcity. If a nation is determined
to prevent mass starvation, and if it has even a minimal level
of resources, mass starvation will not occur. An authoritarian
government might lack the will or the information to prevent thousands
of people from dying. But a democratic government, checked by
the people and the press, is likely to take all reasonable measures
to prevent this catastrophe, if only because it needs to do so
to stay in office. At the same time, a free society facing the
risk of famine is likely to have a great deal of information,
at every stage, about the nature of the emerging problem and the
effectiveness of current or possible responses. If famine relief
plans are (in Gulick's words) "hatched in secret by a small
group of partially informed men and then enforced through dictatorial
authority," failure is far more likely. In a free society,
some dissenters or malcontents will point out that a famine is
on the horizon. If they offer evidence, leaders are going to have
to respond to the risk of catastrophe.
Sen's finding is an especially vivid reminder
of what happens every day in democracies. Diversity, openness,
and dissent reveal actual and incipient problems. They improve
society's pool of information and make it more likely that serious
issues will be addressed. I do not deny that great suffering can
be found in democracies as elsewhere. There is no guarantee, from
civil liberties alone, that such suffering will be minimized.
One reason is unequal distributions of political power, which
decrease the likelihood that important information will actually
reach public officials and that such officials will have the proper
incentive to respond to suffering. But at least it can be said
that a society which permits dissent and does not impose conformity
is in a far better position to be aware of, and to correct, serious
social problems.
Or consider the problem of witch-hunts-mass
movements against made-up internal conspiracies. Witch-hunts are
often conducted by public officials, aspiring or actual. They
can also be carried out by people in the private sector, seeking
to "purge" society of perceived threats. As the McCarthy
period in the United States demonstrates, witch-hunts are far
from impossible in democracies. We have seen that cascades and
group polarization occur in free societies, and witch-hunts, including
McCarthyism, are made possible by these social influences. But
witch-hunts are far less likely, and far less damaging, in a system
in which dissenters are able to disclose what they know and to
check any claims about the disloyalty of fellow citizens."
If civil liberties are firmly protected and if information is
permitted to flow, skeptics can establish that the supposed internal
conspiracies are a myth.
... Above all, the Constitution attempts
to create a deliberative democracy, that is, a system that combines
accountability to the 1 people with a measure of reflection and
reason-giving. 12 In the last decades, many people have discussed
the framers' aspiration to deliberative democracy. Their goal
has been to show that a well-functioning democratic system attempts
to ensure not merely responsiveness to the people through elections
but also an exchange of reasons in the public sphere. In a deliberative
democracy, the exercise of public power must be justified by legitimate
reasons-not merely by the will of some segment of society, and
indeed not merely by the will of the majority.
Both the opponents and the advocates of
the Constitution were firmly committed to political deliberation.
They also considered themselves "republicans," committed
to a high degree of self-government without embracing pure populism.
But deliberative democracies come in many different forms. The
framers' greatest innovation consisted not in their emphasis on
deliberation, which was uncontested at the time, but in their
skepticism about homogeneity, their enthusiasm for disagreement
and diversity, and their effort to accommodate and to structure
that diversity. In the founding period, a large part of the country's
discussion turned on the possibility of having a republican form
of government in a nation with a heterogeneous citizenry.
The antifederalists, opponents of the
proposed Constitution, thought this was impossible. [They ...
insisted that the people "should be similar" and feared
that without similarity "there will be constant clashing
of opinions." The framers welcomed such clashing and urged
that the "jarring of parties" would "promote deliberation
and circumspection." As the framers stressed, widespread
error is likely to result when likeminded people, insulated from
others, deliberate on their own. In their view, heterogeneity
of opinion can be a creative force. A Constitution that ensures
the "jarring of parties" and "differences of opinion"
will provide safeguards against unjustified extremism and unsupportable
movements of view.
A similar point emerges from one of the
most illuminating early debates, which raised the question whether
the Bill of Rights should include a "right to instruct"
representatives. Those in favor of that right argued that citizens
of a particular region ought to have the authority to bind their
representatives to vote in accordance with the citizens' views.
This argument might appear reasonable as a way of improving the
political accountability of representatives, and so it seemed
to many at the time. In fact I suspect that many people in America
and elsewhere would favor the "right to instruct" today.
Shouldn't representatives do as their constituents wish? But there
is a problem with this view, especially in an era in which political
interest was closely aligned with geography. Citizens of a particular
region, influenced by one another's views, are more likely to
end up with indefensible positions, very possibly as a result
of their own insularity ...
p152
... federalism permits states to restrain one another. A particularly
important part of this process involves the right of individual
citizens to exit. If one state oppresses its citizens, they have
the freedom to leave. That very freedom creates a before-the-fact
deterrent to oppressive legislation. It also creates an after-the-fact
safeguard. In this sense, the right to travel from one sovereign
state to another is first and foremost a political right, akin
to the right to vote itself.
p155
An understanding of group influences also casts fresh light on
one of the most important and controversial provisions in the
American Constitution: the grant of power to Congress, and not
the President, to declare war." The debates in the framing
period suggest a fear of two risks: the President might make war
without sufficient authorization from the citizenry, and he might
do so without sufficient deliberation and debate among diverse
people. Thus, Charles Pinkney of South Carolina urged that the
Senate "would be the best depository, being more acquainted
with foreign affairs, and most capable of proper resolutions."
'By contrast, another delegate from that state, Peirce Butler,
sought to vest the power of war in the President, urging that
he "will have all the requisite qualities, and will not make
war but when the Nation will support it." Madison and Elbridge
Gerry made the key compromise, suggesting that Congress should
have the power to "declare" war. This provision was
understood to permit the President "to repel sudden attacks."
But otherwise, the President would be required to seek congressional
approval, in part on the theory that (in Mason's words) this would
amount "to clogging rather than facilitating war" and
to "facilitating peace.
If warmaking is seen to be an especially
grave act, we might be troubled about permitting the President
to make war on his own. This is not at all because the President
is immune from political checks. It is because group dynamics
within the executive branch create a risk of polarization, as
like-minded people push one another to indefensible extremes,
while hidden profiles remain hidden. A requirement of congressional
authorization ensures a check from another institution, with diverse
voices and a degree of independence from the executive branch.
There are few guarantees in life, but the result is to increase
the likelihood that when the nation goes to war, it is for good
and sufficient reasons.
p160
Thomas Jefferson wrote, turbulence can be
"productive of good. It prevents
the degeneracy of government, and nourishes a general attention
to ... public affairs. I hold ... that a little rebellion now
and then is a good thing.
p165
... what three words in the English language "can define
a person's character" He answered his own question with those
three words: "I was wrong."
Why
Societies Need Dissent
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