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.