Democracy and the Problem of Free Speech
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The right to free speech is invoked to protect an astonishing range of activities, a range that seems to expand every day. Newspapers publish the names of rape victims, flags are burned, pornography flourishes, and all of these controversial actions are protected under the constitutional right of free speech. The Supreme Court increasingly decides disputes by invoking the First Amendment. Civil libertarians, former antiwar protesters, and tobacco advertisers join revisionist conservatives in attacking almost all forms of censorship, extending the search to the farthest reaches of commercial and symbolic speech. In short, we are in the midst of a revolution of absolutist interpretations of free expression. The absolutists are misguided, argues Cass Sunstein. Our government now protects speech that causes harm yet forbids speech that is essential, he says. Instead, we should conceive of free speech first and foremost as a means to achieve civic deliberation and true popular sovereignty. Building on James Madison, Sunstein proposes a "New Deal" for the first Amendment.