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IP: One person can make a difference (on the Gore Commission)
From: Dave Farber <farber () cis upenn edu>
Date: Sat, 26 Dec 1998 16:12:35 -0500
Date: Sat, 19 Dec 1998 00:37:48 -0500 From: Declan McCullagh <declan () well com> [The member of the Gore Commission who provided some of the legal theories to justify regulation of digital TV is Cass Sunstein, a longtime opponent of free speech. At the very least, this Chicago law prof is someone with (ahem) inventive ways to interpret the First Amendment. This is the Media Institute's response to the commission and Sunstein. (Contact them for the final, formatted text -- this I got via email.) My article on the Gore Commission: http://www.wired.com/news/news/politics/story/16913.html --Declan] Critique of "Madisonian" Theory of Free Expression The Gore Commission Report ("the Report") attempts to stack the deck for its First Amendment analysis by describing "tensions in First Amendment jurisprudence" between a free market place of ideas model versus a "public interest" model intended to support deliberative democracy. It suggest that the public interest approach is supported by James Madison, "the great champion of free speech during the framing of the Constitution and Bill of Rights." It goes on to describe Madison^s conception of the First Amendment "as a way to assure political equality, especially in the face of economic inequalities, and to foster free and open political deliberation."/ The Report states that, in Madison^s view, free speech "expresses the sovernity of the people". Using this analytic framework, the Report appears to suggest that, had Madison been alive in 1969 and a Justice of the Supreme Court, he would have voted for (if not written) the opinion in Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969). It states that the "Madisonian notion of deliberative democracy . . . lies at the heart of the public interest standard in broadcasting," and that the "Madisonian" concept of free speech clarifies "why public interest obligations have been seen as vital to broadcast television." In short, the underlying philosophy of the Commission Report is that any opposition to additional regulation of broadcast content is the same thing as opposing James Madison. By the Commission^s reasoning, the First Amendment supports -- if not requires -- more government regulation of speech. This is hardly a mainstream view of First Amendment jurisprudence. As Professor Jack Balkin has written, this "^ÑMadisonian^ theory of the First Amendment is about as Madisonian as Madison, Wisconsin It is a tribute to a great man and his achievements, but bears only a limited connection to his actual views."/ Other First Amendment scholars agree with this assessment./ In challenging this reconceptualization of First Amendment theory, Professor John O. McGinnis of Benjamin & Cardozo Law School has written that James Madison believed that "individuals possessed a property right in their ideas and opinions just as surely as they possessed a property right in the material goods they fashioned. Madison also understood that the ability to transmit information, either through one^s own person (free speech) or through the use of other material property (free press) needed special protection from government interference."/ Similarly, Professor Burt Neuborne has written that such revisionist theories represent "a radical change in the way we think about the First Amendment."/ Contrary to the revisionist view of James Madison, that free speech "expresses the sovernity of the people" to regulate the press, the historical record demonstrates just the opposite. Indeed, when Madison introduced the Bill of Rights in the House of Representatives on June 8, 1789, he did not suggest that speech could be regulated in the name of "the people" to promote deliberative democracy. According to contemporary accounts, he rejected any such notion: [Mr. Madison stated that] the freedom of the press, and the rights of conscience, those choice flowers in the prerogative of the people, are not guarded by the British Constitution. With respect to these, apprehensions had been entertained by their insecurity under the new Constitution; a Bill of Rights, therefore, to quiet the minds of people upon these points, may be salutary. He then averted to the several Bills of Rights, which were annexed to the Constitutions of individual states; the great object of these was, to limit and qualify the powers of government -- to guard against encroachments of the executive. In the federal government, the executive is the weakest -- the great danger lies not in the executive, but in the great body of the people -- in the disposition which the majority always discovers, to bear down, and depress the minority./ As Madison described the purpose of Bill of Rights, "[t]he rights of conscience; liberty of the press; and trial by jury, should be so secured, as to put it out of the power of the Legislature to infringe them./ Even Professor Sunstein, who is a member of the Commission and who is the primary proponent in the academic world of the revisionist theories embraced by the Report, appears to acknowledge that this "Madisonian" interpretation respresents a significant deviation from traditional First Amendment understandings. He has written, for example, that his theory of the First Amendment "would produce significant changes in our understanding of the free speech guarantee. It would call for a large-scale revision in the view about when a law ^Ñabridges^ the freedom of speech."/ In particular, he has suggested that press autonomy "may itself be an abridgement of the free speech right." Professor Sunstein has acknowledged that to accept his theories, "it will be necessary to abandon or at least to qualify the basic principles that have dominated judicial, academic, and popular thinking about speech in the last generation."/ While this self-assessment demonstrates the virtue of candor, it also reveals a gift for understatement. The "Madisonian" theory literally turns the First Amendment upside down. In short, the "tension" in First Amendment theories described in the Report is not so much a conflict in accepted constitutional interpretations as it is an attempt to revise history and rewrite the First Amendment. ****** Dec. 18, 1998 Richard T. Kaplar 10 am EST 202-298-7512 Media Institute's Public Interest Council Expresses "Profound Disappointment" Over Gore Commission Final Report Washington, Dec. 18 -- The Media Institute's Public Interest Council (PIC) has reacted to the Gore Commission's final report with "profound disappointment." In a statement by PIC member Laurence H. Winer, the Public Interest Council said the Gore Commission "has missed perhaps the best opportunity in 70-plus years of broadcast regulation" to reexamine the whole concept of government regulation of broadcasting in the name of the "public interest." The Gore Commission has failed to meet Vice President Al Gore's challenge "to sustain and strengthen the First Amendment freedoms that are so critical to all media," and instead has relied on "wax museum arguments" to perpetuate an outdated regulatory system, the PIC said. Among the shortcomings of the Commission's final report, according to the PIC: The Gore Commission made no attempt to define the "public interest," instead proceeding "essentially by whim of its members." Neither the recommended minimum public interest standards nor voluntary code of conduct have any relation to the transition to digital broadcasting. And the proposed "pay-or-play" model amounts to a content-based tax on programming. The PIC also critiqued the Gore Commission's novel interpretation of "Madisonian" democracy. Under this interpretation, "the First Amendment supports -- if not requires -- more regulation of speech," the PIC said. The Gore Commission's theory "is hardly a mainstream view of First Amendment jurisprudence," the PIC noted. The Gore Commission was created by President Clinton in March 1997 and charged with making recommendations on public interest obligations for digital television broadcasters. The 22-member panel held eight public meetings in Washington and other cities between October 1997 and November 1998. It issued its final report to the vice president today. The Public Interest Council is a Media Institute working group of constitutional scholars and communications attorneys created to follow the activities of the Gore Commission. Copies of the PIC statement and First Amendment analysis are available from The Media Institute by calling 202-298-7512. For more information about The Media Institute and the Public Interest Council, visit the Institute's Web site at www.mediainst.org. # # # -------------------------------------------------------------------------- POLITECH -- the moderated mailing list of politics and technology To subscribe: send a message to majordomo () vorlon mit edu with this text: subscribe politech More information is at http://www.well.com/~declan/politech/ --------------------------------------------------------------------------
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- IP: One person can make a difference (on the Gore Commission) Dave Farber (Dec 26)