Jewish World Review March 19, 2001 / 24 Adar, 5761
Skirting what the First Amendment says
WITH this week's beginning of Senate debate on campaign finance reform, we will reach the most pivotal moment in the history of American freedom since the civil rights revolution 3 1/2 decades ago. The debate concerns John McCain's plan to broaden government limitations on political spending in order to intensify government supervision of political speech, which depends on that spending.
McCain's attempt to expand government abridgement of the First Amendment's core concern comes in the context of rapidly multiplying rationales for vitiating First Amendment protection of political speech. In recent years law school journals have featured many professors' theories about why the amendment -- "Congress shall make no law . . . abridging the freedom of speech" -- should not be read as a limit on government. Rather, they argue, the amendment empowers -- indeed, in today's world it requires -- government to regulate, limit and even "enhance" political speech.
Consider a symptomatic new book, "Republic.com," by University of Chicago law professor Cass Sunstein, whose ingenuity deserves better employment. He vigorously attacks a nonexistent problem, to which he proposes a solution that is only, but very, useful as an illustration of the hostility that a portion of the professoriate has toward the plain text of the First Amendment.
The supposed problem that Sunstein wants government to address is a maldistribution of information and opinion. He begins with a truism, that a heterogeneous society needs the glue of a certain level of common experiences. Then he postulates a problem. It is that the very richness of today's information and opinion environment -- the Internet, cable, etc. -- allows people to design a personalized menu of communications, deciding what they want to encounter and what they want to filter out of "a communications universe of their own choosing."
Sunstein says unplanned, unanticipated, even -- perhaps especially -- unwanted encounters are "central to democracy." They help us understand one another and prevent social fragmentation and the extremism that ferments in closed cohorts of the like-minded hearing only "louder echoes of their own voices." Sunstein worries especially that the Internet, by bestowing on individuals the power to customize what they encounter, enables people to bypass "general interest intermediaries" such as newspapers and magazines.
Not so long ago, intellectuals worried that mass media were homogenizing American culture into uniform blandness. Now Sunstein worries about new technologies allowing people to "wall themselves off" from differences of opinion, forming isolated enclaves.
What makes Sunstein's book pertinent to campaign finance reformers' current assaults on the First Amendment is not the plausibility of his diagnosis -- who in cacophonous contemporary America feels insufficiently exposed to differences? But note the audacity of his prescription. He would have government use various measures -- from "must carry" requirements for broadcasters to mandatory links connecting Web sites to others promoting different views -- to manage "the scarce commodity" of the public's attention. Government, he thinks, should actively "promote exposure to materials that people would not have chosen in advance."
Now, never mind the many practical problems implicit in Sunstein's theory, such as how government will decide which views are insufficiently noticed, and how government will "trigger" (Sunstein's word) public interest in them. But mind this:
Sunstein is an ardent campaign finance reformer for the same reason he recommends government management of the information system. He thinks the First Amendment mandates this. He does not read the amendment as a "shall not" stipulation that proscribes government interference with individual rights. Rather, he reads it as a mandate for active government management of the public's "attention."
To Sunstein, and to many similar academic advocates of speech-management through campaign finance reform, what is important about the First Amendment is not its text but the "values" they say the amendment represents. They say those values -- vigorous debate; deliberative democracy; political heterodoxy -- require that the amendment's text be ignored as an anachronism that modern life (the Internet, the costs of campaigning in the age of broadcasting, etc.) has rendered inimical to the amendment's values.
Politicians who, in the name of campaign finance reform, favor increased government supervision of political communication are not motivated by such recondite reasoning. They simply want to tilt the system even more toward the protection of incumbents, or of their ideological interests, or of their ability to control their campaigns by controlling the ability of others to intervene in the political discourse.
However, campaign finance reformers depend on academic theories about why it is acceptable to act as though the First Amendment does not mean what it
Comment on JWR contributor George Will's column by clicking here.
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