Cass Sunstein’s Free Speech Awakening

Earlier this month, prominent Harvard Law School professor and former Obama administration official Cass R. Sunstein lambasted President Trump for his “assault on the First Amendment.” At issue was Trump’s foolish, boorish and unsuccessful attempt to prevent publication of Fire and Fury, Michael Wolff’s highly critical book about the Trump administration.

In a fine article published in Bloomberg View and republished elsewhere, Sunstein quotes James Madison’s observation that government meddling in free speech, above all other transgressions, “ought to produce universal alarm.”

Yet there’s irony in the fact that Sunstein himself has a long history of arguing vigorously for government meddling in free speech. In fact, he wrote a whole book on the subject, Democracy and the Problem of Free Speech. First published in 1993, the book calls for regulation of speech and writing that, to his way of thinking, fails to serve the public good. Government, he argues, should actively regulate media to promote diversity, inclusion and other values, in the name of “encouraging the creation of a civic culture.”

In a chapter titled “Does the First Amendment Undermine Democracy?” Sunstein outlines possible remedies including forcing newspapers to publish replies to articles, diminishing the role of advertising in media, and using taxpayer money to subsidize newspapers that “agree to cover substantive issues in a serious way.” Those words may be 25 years old, but as recently as last month Sunstein praised as “illuminating” a book by a University of Richmond law professor suggesting that the Founders never intended free speech to be quite as free as it is today. Which would, presumably, open the door to just the sort of regulation Sunstein has long favored.

The differences between Cass Sunstein and Donald Trump are many and stark, to be sure. Sunstein is a Democrat and Trump is a Republican. Sunstein is sophisticated, well read and erudite and Donald Trump is, well, Donald Trump. Yet their underlying arguments have a similar ring. Both say they only want what’s fair and good for the country, and that clamping down on bad actors in the media would actually enhance freedom. It has to be said: If letting Donald Trump choose who gets to publish books is a terrible idea—and it is!—imagine the assault on freedom when Cass Sunstein’s bureaucrats start deciding which journalists are or aren’t presenting the news “in a serious way.”

The rise of Trump should, if nothing else, cause Sunstein and other would-be reformers to recognize the danger of bad precedents, embrace the First Amendment in its broadest terms and, once and for all, reject the idea of giving people in government the power to control or interfere with free speech.

First Down, First Amendment: The NFL and Free Speech

After months of violent street protests across the nation, and with college campuses seeming to have lost their will to defend unfettered debate, the most salient free speech lesson this season comes to us courtesy of professional football.

The sight of players kneeling during our national anthem understandably evokes strong, emotional reactions. But that’s the thing about free speech. Whenever our most precious right makes the headlines, it’s because someone has said or done something that someone else finds deeply offensive.

Whether you see those National Football League players as coddled millionaires disrespecting our sacred symbols and institutions, or as principled young men courageously demonstrating against racism (and there are solid cases to be made for both positions) step back and you’ll see a textbook case in how free speech is supposed to work.

First, President Trump blew the lid off a long-simmering controversy by urging NFL owners to fire any “son of a bitch” who refuses to stand for the anthem. Let’s keep in mind that in many countries, a “suggestion” by the head of the government is the same thing as a command. Yet the response from the football community (including normally reserved coaches and owners) was one of widespread condemnation of the president, and defense of the players.

Broadcasters joined in. Hall of Fame quarterback Terry Bradshaw, now an announcer for Fox Sports, questioned whether the president quite understands the Constitution he is sworn to protect. And while kneeling during the anthem is against NFL rules, the league has thus far declined to discipline or fire players for doing so.

Fans have exercised their right to boo or cheer as they see fit. Many have turned off their televisions, burned souvenir uniforms, and sworn to boycott future games. Attendance and viewership are down this year. These reactions, too, are well within the bounds of reasonable expression. Freedom of speech does not mean freedom from consequences.

Everybody, it seems, has shared heartfelt opinions, but so far there has been little evidence of violence or even the threat of violence to intimidate others into silence. Thus the practitioners of one of our most violent games—often cited by detractors as evoking our most brutal characteristics as a nation—have taught everybody a lesson in peaceful dissent and debate.

And when the anthem ends they all go out and play football.

To some, the kneeling controversy represents a low-point for the country. The Wall Street Journal captured this sentiment in an editorial lamenting that the dispute represents “a very unhealthy level of polarization and mistrust.”

I disagree. We may love or hate the individual opinions being expressed. But as free speech debates go, this one is about as healthy as it gets.

Note: See the terrific new site First Amendment Watch for a detailed look at where the NFL kneeling controversy and similar protests fit in the long history of American dissent dating to Revolutionary times.

The Power of the Perfect Manhattan

I start most restaurant meals by asking for a perfect Manhattan, Maker’s Mark, twist of lemon, no cherry. Straight up, of course—a Manhattan on the rocks is like asking the chef to poke a hole in your soufflé.

The success or failure of the evening rests on what arrives at the table, and the visual cues say a lot. I’m looking for a generous glass (funny shapes and tints need not apply); a fine coating of condensation, indicating proper chilling; and a rich, amber color to the liquid, filled close enough to the brim that the server must concentrate not to spill.

From the first sip of a well-made Manhattan, the universe falls into perfect, benign order. Problems that hours earlier pressed like lead weights seem distant and manageable, and the other couple’s banal observations about the incompetent contractor handling their kitchen renovations sparkle like conspiratorial revelations. It’s us against the world, and we’re winning.

But a gaffe on any Manhattan front—tepid temperature; an inch of space between the drink and the brim, precious liquid slopping onto the fingers of a careless server, a lemon wedge instead of a twist—and the whole effect is ruined. When one of these crimes occurs, not even the most talented chef can resurrect the meal. My well-meaning wife, who has grown adept at recognizing (if not understanding) my disappointment at such times, usually compounds the problem by asking if I wouldn’t enjoy a nice glass of wine instead.

The finest Manhattan I’ve ever had was not in New York but in northern Maine, of all places. It was well chilled and very strong but in perfect balance. Best of all, it came with a sidecar glass containing a few extra ounces that wouldn’t fit into the larger one. The sidecar sat beside me like an unspent Christmas bonus. Just knowing it was there gave me solace. The food was not good. Ignoring docks not 100 yards away unloading the world’s freshest lobster and haddock, the owners had gone exotic with Montana bison, Oregon salmon, Alaskan crab and other items as foreign to the chef as they were to northern Maine. But no matter, I enjoyed the evening thoroughly and mourned when the restaurant went out of business. I would have become a regular. And that, I think, says it all about the power of the perfect Manhattan.

Is Speech Violence?

Marchers in Berkeley, California recently invoked a favorite tactic among would-be censors by muddying the distinction between words and physical force. “Speech is violence!” they screamed in protest of a speaker whose views they disliked.

Adapted from Liberty’s First Crisis:

When it comes to free speech, the Supreme Court has wrestled with the infinitely complex question of just where those boundaries lie—giving us terms such as “fighting words” and “clear and present danger” to determine when speech truly goes too far.

But there is one thing that cannot coexist with freedom, and that is declaring that people have a right against being offended, even deeply offended, by someone else’s words. Such a declaration automatically transfers the right of speech from the speaker to the listener, who now enjoys the power not just to say, “I don’t like your opinion,” but “I won’t allow you to say that.”

Ignorance and hatefulness can and should be confronted and shot down, with reason and with better words. Yet if we wish to remain free, we must resist the strong temptation to call the police. The fact is that everyone who voices a controversial opinion is bound to give offense to someone. In a regulated climate, speech ceases to be a right and becomes a political privilege. The trick isn’t to avoid giving offense; rather, it is to avoid offending the wrong people.

Times change. Most of the concerns that inflame us today will one day be regarded as historical footnotes. What remains as the measure of a generation is not the restrictions it imposes on its most repugnant voices. The true measure of greatness of any generation is the wisdom it shows in looking beyond the moment and handing down liberty, intact and unfettered, to the next.

Reflections on Our Turbulent Times

Just about anyone you talk to these days will tell you we live in an age of “unprecedented” rancor and incivility. But it isn’t so.

Investigate the past (as I’ve done in three books of historical nonfiction) and you’ll find plenty of doomsayers decrying their moment in the same desperate terms that we use to describe our own. Every generation imagines itself perched at the edge of disaster.

For all our troubles, we’ve got plenty of reasons for optimism. We’re living longer and better than any generation in the history, and our nearly 250-year American experiment in self-government and liberty is going strong. The United States today is a better, more inclusive country than the one I grew up in—and it was a great country then. We continue to draw newcomers from all over the world seeking the most rare of opportunities: to live in freedom, work hard and pursue happiness on their own terms.

I don’t mean to minimize or make light of the very real challenges we face. But I do believe that the greatest threats come not so much from the challenges themselves as from our readiness to reach for drastic solutions, especially when those solutions threaten fundamental liberties such as freedom of speech. My most recent book, Liberty’s First Crisis, describes a rancorous period at the end of the 18th century, when the ruling Federalists, assuming the country to be in grave danger, started throwing people in jail for the crime of criticizing the government. They believed that silencing the most odious and dangerous voices of their generation was the only way to create a stronger and freer country. Yet in the end it was the Federalists whose actions put the country and its freedoms in jeopardy.

Even today there are those among us so convinced of their own righteousness that they’ll happily take the shortcut from persuasion to coercion, invoking the powers of a legislature or a mob to make sure people see things their way. Whether Republican or Democrat, right or left, we must be especially on guard against those on our own side of the political fence—they’re the ones who lull us into believing we can destroy our opponents’ rights without destroying our own.

In this blog, starting today, I’ll take a long view of rights, pointing out threats as I see them. I’ll write about other subjects as well (movies, books, drinks) keeping in mind the advice my grandmother gave me, to save time for some fun.