Democracy and the Problem of Free Speech

PUBLISHERS WEEKLY 4 OCT 1993

Calling for a ``large-scale reassessment of the appropriate role of the First Amendment,'' University of Chicago law professor Sunstein here offers nuanced and provocative proposals for reform. After providing a primer on the contrasting developments in First Amendment law, he argues that the notion of free expression should be connected to the goal of creating a Madisonian ``deliberative democracy.'' Thus, he criticizes ``market theology'' and calls for free media time for political candidates, and for federal guidelines--but not mandates--for coverage of public issues. Drawing on precedents regarding commercial speech, Sunstein proposes a lesser degree of protection for nonpolitical speech like advertising. He suggests allowing ``deliberative'' racist or sexist political speech, but not hateful epithets, which he compares to obscene phone calls. Convinced that there is a causal connection between pornography and violence against women, he endorses the proposal, advanced by legal scholar Catharine MacKinnon and feminist author Andrea Dworkin, for civil action against violent pornography. Sunstein is fuzzy on finding principles to govern taxpayer support for the arts. Still, his worthy book should stimulate valuable argument.