Title: Free Speech, The Framers' Greatest Contribution excerpted from the book Why Societies Need Dissent by Cass R. Sunstein
Headings: 
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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Content: Free Speech, The Framers' Greatest Contribution excerpted from the book Why Societies Need Dissent by Cass R. Sunstein
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.