Republic.com

Cass Sunstein

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Cass R. Sunstein
author of REPUBLIC.COM

Cass Sunstein has written extensively on constitutional law, the First Amendment, and jurisprudence. He is the Karl N. Llewellyn Distinguished Service Professor of Jurisprudence at the University of Chicago Law School and Department of Political Science. A past member of the President's Advisory Committee on the Public Interest Obligations of Digital Television Broadcasters, he writes regularly for popular magazines and newspapers, including the New York Times Book Review, the New Republic, and the American Prospect. He has also appeared on ABC Nightline, the NewsHour with Jim Lehrer, NBC Evening News, ABC World News Tonight, NPR Fresh Air and many other programs.

He has testified before Congress on many occasions, involving free speech and other constitutional questions. He has advised many nations about law reform and constitution-making, including Poland, South Africa, Bosnia, China, Russia, Israel, and Ukraine. A former law clerk for Justice Thurgood Marshall, he has worked for the Office of Legal Counsel in the United States Department of Justice, and has won several awards and commendations from the American Bar Association.

He is author of Democracy and the Problem of Free Speech (1993), which won the Goldsmith Prize from Harvard for the best book on free speech in that year. His many other books include The Partial Constitution(1993), After the Rights Revolution (1990), Free Markets and Social Justice (1997), and One Case at a Time: Judicial Minimalism on the Supreme Court (1999).

1. Doesn't the Internet make democracy work better by ensuring a more informed public?

   Yes, but also no. The good news is that in seconds, people can get a fantastic amount of information, including information that bears on what government should be doing. This is a terrific thing for democracy.

   The bad news is that many people are now using the Internet so as to strengthen what they already believe--and to fence out different or opposing positions. The Internet makes it much easier for people to "customize" their own experience of the media, which means that they can narrow their horizons. This weakens the place of general interest newspapers, magazines, and television stations, which are extremely important in exposing people to new topics and points of view. The rise of the internet, and increased specialization, means that some conservatives will read only or mostly conservative sites, liberals will do the same with liberal sites, greens with green sites, hate group members with hate group sites--and so on.

   This is a real problem. Any democracy needs people to learn about topics and points of view that they didn't, and wouldn't, seek out in advance. This helps people to form a variety of interests, and also to respect people with different opinions. When people hear and read views with which they already agree, they tend to go to extremes, and often to demonize, or misunderstand, their fellow citizens. In these ways, the Internet can be a breeding ground for extremism, which is often dangerous for democracy.

2. Are you worried about extremist groups on the Internet?

   Absolutely. Some of those groups are a real reason for concern. (I emphasize the word "some." Star Trek fans tend to be extreme in their enthusiasm for Star Trek, but we shouldn't worry about Star Trek fans.) Without the Internet, most people with dangerously extreme positions will eventually come to see that their views are exotic and weird--and they will end up thinking more sensibly. But on the Internet, like-minded people can find a kind of group home. They create little enclaves for themselves.

   In some ways this is healthy and good. But to the extent that it allows dangerous or hateful groups to prosper, and to encourage violence or hatred from people who would otherwise be perfectly good citizens, there's a real problem. Remember not only that the internet allows like-minded people to congregate, but also that when this congregation occurs, people can push each other to ever more extreme positions.

3. What business does the government have regulating the Internet?

   Plenty. In fact government already regulates the Internet, a lot. If someone creates and sends you a virus, they're probably violating the law. If someone invades the site of the Washington Post, to post their own political views, they're violating the law. If someone tries to put advertisements about Eminem's latest CD on Newsweek's site, they're violating Newsweek's legal rights. At a minimum, the government regulates the Internet by creating and protecting rights of property. Protection of property is definitely government's business, on the Internet and everywhere else.

   But there's a lot more. If you try to commit fraud via the Internet, or to conspire to kill someone via the Internet, or to libel your enemies via the Internet, or to disable computers via the Internet, or to infringe copyright via the Internet, you'll be in trouble with the government. That's good. In these cases, and many more, the government has the same business on the Internet as it does everywhere else.

4. Wouldn't government regulation infringe on free speech? Isn't free speech an absolute?

   Not necessarily, and no. The idea that free speech is an absolute is one of the great myths of our time. Even in the most democratic of free societies, government regulates free speech--and it does this a lot, not a little. Remember the "ILOVEYOU" virus, sometimes called the "Love Bug"? Sending that virus is a form of speech, I guess, but government can prevent people from sending viruses.

   Almost everyone agrees that criminal conspiracy, and threats to kill or maim people, can be regulated. If you try to ruin someone's reputation through words, you might well be committing a tort under the law. If you lie about a product you're selling--"this product prevents cancer!"--the government is entitled to stop you and probably even to punish you. Most people agree that child pornography can be regulated on the Internet and elsewhere. This is just a glimpse at the long list of areas in which societies regulate speech, even though they're fully committed to freedom of expression.

   No one is really a free absolutist. For people who care about free speech, the trick is to come up with standards that would allow us to decide when speech can be regulated, and when it can't be. Absolutism is a nonstarter, because it pretends that lines won't be drawn. Of course we need to draw lines that will ensure a strong, robust--not absolute--right of free speech.

5. Are you optimistic or pessimistic about the effect of the Internet on our democracy?

   Both. Information is travelling at astonishing speed. People can learn so much, so easily. This is a genuinely revolutionary shift, and a good one.

   But America has always aspired to have a deliberative democracy--rather than a system in which government reacts immediately to snapshots of citizen judgments. We prize reflection and deliberation, not just accountability to the voters. In some places, the Internet is threatening to decrease deliberation.

   Probably the more serious risks involve an increase in social fragmentation. I mentioned that as a result of the Internet, and increased specialization, there appears to be an ever-smaller role for general interest newspapers, magazines, and broadcasters. These institutions have been really important to our society and our democracy, and I think we've overlooked that importance. They're important partly because they've exposed people to topics and ideas that people might not have encountered--and so helped create a common culture, which is extremely valuable for a democracy.

   If the Internet allows segments of society to fragment into their own separate little communications universes, there's a real problem. We have some evidence that this is happening. To the extent that it does happen, people will have a harder time talking to one another, and helping to solve shared problems. When Democrats and Republicans end up dividing so sharply - "Bush stole the election!," versus, "No, Gore tried to do that"--it's often because people are just talking to people with whom they already agree.

   On the other hand, the facts don't really justify pessimism. I think that pessimism, nostalgia, and prediction are the three great obstacles to thinking well about the role of the Internet. What we should do is to go well beyond those obstacles -- and try to get a better sense of our ideals, so we know how to judge what is happening. What's critical is to see that a free society depends not just on freedom from censorship, but also on a shared culture, and also on exposure to ideas and topics that people don't explicitly request in advance. If these things are jeopardized, democracy will be jeopardized too.

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