Instead, I quickly recognized that some of the headlines were deceptive, as reporters sought to churn a minor clarification into a major story.

Here are some examples that I don’t think are objective (I’ve underlined wording I think is unfair):

• USA Today: “A divided Supreme Court scaled back the well-known Miranda right….”
• Los Angeles Times: “Supreme Court Loosens Miranda Rule” (headline), “The Supreme Court retreated from strict enforcement of the famous Miranda right on Tuesday….”
• Vanity Fair: “In the New America, You Must Invoke Your Own Miranda Rights”
• Detroit News: “Supreme Court narrows Miranda rights….”
• Newsday: “Supreme Court expands limits on Miranda rights”

Several commentators, writing before the Supreme Court issued its ruling, described the case as an attempt to “expand” or “clarify” Miranda, which required that before questioning, suspects must be advised of their Constitutional rights (to have an attorney, and not to incriminate themselves), and police must terminate questioning if a suspect invokes those rights.

But when the ruling was announced on June 1, most reporters and editors immediately transformed the “non-expansion” story into a “limitation” or “retreat” story.

There are two reasons why the media may have sought to magnify the ruling’s importance and impact.  First, the dissenting opinion was written by newly-appointed Justice Sotomayor. Second, when the case was briefed and argued, the U.S. government sought the ruling that the majority delivered — and the government was represented by current Solicitor General Elena Kagan, who is now President Obama’s nominee for appointment to the Supreme Court.

I assume that in the next few days, we’ll hear pundits proclaim that this case demonstrates that Ms. Kagan is more moderate (less liberal, more conservative) than Justice Sotomayor, which might make her appointment seem more acceptable to some Senators (and perhaps less acceptable to other Senators).  Undoubtedly, we will also hear some  pundits complain that Obama should withdraw Kagan’s nomination because she’s too conservative, and different pundits will claim that this case was a “smoke screen” intended all along to make Kagan appear more moderate than she “really is.”

In fairness, the “change” and “limitation” language was not the only “angle” that editors seized upon.  Many other articles instead emphasized the apparent contradiction in the court’s ruling that one must “speak up in order to assert the right to remain silent” (for example, the New York Times editorial, “Speaking Up to Stay Silent”).

__________________________

The actual issue in this case was whether a statement made by a suspect during interrogation, after remaining “largely silent” for nearly three hours, could be admitted at his trial, or should be excluded.

Mr. Thompkins was arrested for murder.  During his interrogation, he was advised of his right to remain silent, and he remained “almost completely silent and unresponsive”.  However, “At no point during the interrogation did Thompkins say that he wanted to remain silent, that he did not want to talk with the police, or that he wanted an attorney.”

After nearly three hours of an interrogation best described as a “monologue,” a detective asked Thompkins if he believed in God, and if he prayed; Thompkins answered “yes” to both questions. The detective then asked, “Do you pray to God to forgive you for shooting that boy down?” and the suspect answered “Yes.” Thompkins’ attorneys sought to have this statement excluded, arguing that by remaining mostly silent for nearly three hours, Thompkins had effectively communicated his intent to remain silent, and police should have ended the interview before then.

The “real issue” in the case, I think, was this: after police insisted that Thompkins read a portion of the Miranda rights from a card, and after police read all these rights to him, and after Thompkins refused to sign an acknowledgment that he “had been advised of and understood his rights,” police did not ask him if he expressly waived those rights.

The Supreme Court was presented with an opportunity to clarify the Miranda decision by deciding whether or not police were required to ask that question (and if so, whether they could insist that the defendant reply; or if the defendant did not reply, whether police should infer either a waiver or invocation of that right).

In a 5-4 decision, the Court ruled that police were not required to ask, nor were they required to infer from silence that a suspect was “invoking his right to remain silent,” which would end the interrogation.

In her dissent, Justice Sotomayor wrote:

The Court concludes today that a criminal suspect waives his right to remain silent if, after sitting tacit and uncommunicative through nearly three hours of police interrogation, he utters a few one-word responses. The Court also concludes that a suspect who wishes to guard his right to remain silent against such a finding of “waiver” must, counter-intuitively, speak—and must do so with sufficient precision to satisfy a clear-statement rule that construes ambiguity in favor of the police. Both propositions mark a substantial retreat from the protection against compelled self-incrimination that Miranda v. Arizona, 384 U. S. 436 (1966), has long provided during custodial interrogation.” (Berghuis v. Thompkins).

While I don’t agree with the majority’s decision, I don’t agree with Justice Sotomayor that this case represents a “substantial retreat,” and I don’t think the majority decision will “limit” or “change” existing law, nor will it change police procedure.

Most journalists adopted the dissent’s view that this decision was a significant change from existing law.  I find this a fascinating example of “pack-mentality media distortion.”

In a 6-3 decision, accompanied by a broad and sweeping written opinion, the Court struck down a Texas law which criminalized consensual sexual conduct between two persons of the same sex. In doing so, the Court overturned a 1986 decision in the case of Bowers v. Hardwick, which had upheld a Georgia “sodomy” law.

It is rare for the U.S. Supreme Court to so emphatically discard a prior legal decision, especially one so recently decided. It is also rare for the Court to reach beyond the narrow confines of a specific case, but the opinion in thie case does so, going far beyond the requirements of the case presented.

What the Case Does Not Say: The ruling does not require the government to allow or respect gay marriages.

This case arose after police invaded a private home (allegedly based on a crime tip), surprising two men who were engaged in sexual activity, and then arrested both men for violation of a Texas law prohibiting “deviate sexual intercourse” (defined to include sex acts between two persons of the same sex, but not between two persons of opposite sex).

When the court first decided to hear this appeal, it identified two questions:

• first, whether the law violates the “equal protection” clause of the 14th Amendment to the U.S. Constitution when it outlawed specific conduct between two persons of the same gender, but not between two persons of opposite gender (discrimination);
• second, whether the law violates the “due process” clause of the 14th Amendment by regulating “adult consensual sexual activity in the home.”

Liberty and privacy (but mostly liberty?): The opinion notes that the Texas law regulates “the most private human conduct, sexual behavior, and in the most private of places, the home.” The Court rejects the prior decision in Bowers v. Hardwick as focusing on “homosexual acts” instead of the broader issue of consensual, intimate acts in private homes, and also rejects the Bowers Court’s claim that “proscriptions against [homosexual] conduct have ancient roots.” The latter point serves (quite poorly, I think) to undermine claims that neither the “Founding Fathers” who wrote the Constitution nor the legislators who ratified the 14th Amendment would have expected their Constitution to prevent such laws.

Discrimination / Equal Protection? Normally, a court need only find a single basis for its opinion; thus, having decided that the Texas law violated the due process clause (“liberty”), it was not necessary to also rule on the “discrimination” issue, which was not addressed directly in the majority opinion (but is cited as the sole basis for Justice O’Connor’s concurrence). It will be hard for most people to believe this if they read Justice Kennedy’s majority opinion, which is quite emphatic in repeatedly noting that the petitioners had engaged in “homosexual” acts and a gay relationship and lifestyle, and that “The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.”

How Far (physically)? The court’s opinion repeatedly refers to “the home,” and would not appear to prohibit laws that prohibit public conduct, even if those laws discriminate against gays (prohibiting certain conduct by same-sex couples but not by opposite-sex couples). The decision should certainly extend to other private places, including hotel rooms, but not to semi-private or public places.  However, it seems unlikely that states would enact laws to exploit this “loophole,” since there are few acts that lawmakers would allow to occur in public between opposite-sex couples but not same-sex couples.

How Far (scope)? The majority opinion’s language decrying the Texas law for “demeaning” gay couples, and insisting that they be entitled to “respect,” would seem to infer that certain other laws or regulations that treat people differently based solely on their private, intimate activities or based on the fact that they are in a “homosexual relationship.” As Justice Scalia notes in his dissent, that language completely undermines any claim to legitimacy for discharge of gay men and lesbians from the military, based solely on what they do in the privacy of their homes.

This Decision is Right, but Not Secure. In fairness to the three dissenting justices, there is little to support the majority’s claim that the decision is founded firmly on established principles of jurisprudence. In some ways, the sweeping references to “liberty” are a cop-out.  This is simply one of those cases in which the Court recognizes that it must do The Right Thing, and reject attempts by a tiny minority of small-minded bigots to punish others for being different, or worse, for being happy — or gay.

And the 6-3 ruling is not very secure, given Justice O’Connor’s limited concurrence and the likelihood that the next appointment to the Supreme Court will be made by President George W. Bush.

I. Finding and Reading “Republic.com”

In mid-December 2001, I was wandering through the local Barnes & Noble bookstore, uncertain what subject or title might pique my interest. As I wandered, I realized how different the experience of a real bookstore is from the experience of an online bookstore like Amazon.com. In a real bookstore, I am exposed to a wide range of books that I might never search out online.

And with that thought, I approached the “Current Affairs” section and found a book called “Republic.com,” by a University of Chicago law professor named Cass Sunstein . The book’s apparent subject was the likely effect on our society if more people use “filtering technology” so that they see and hear only the information and opinions they pre-select. In other words, Sunstein’s book addressed (in part) the notion of how society might be affected if we all had to shop for books online, where we’d see only subjects and authors we requested, instead of in a bookstore, where we encounter a wide range of subjects and authors. (Sunstein even cites the bookstore example at page 23.)

It took me about 10 days to work my way through the small, 212-page book.  I found myself carrying the book along to restaurants and BART trains, and as I read forward, I constantly turned back to re-read earlier passages.  Then, when I’d finished reading Republic.com , I put it aside for a few days, while I read The Elements of Journalism (by Kovach & Rosenstiel) and Crashing the Party (by Ralph Nader).  And then I re-opened Republic.com and started again at the beginning, this time with pen in hand to highlight passages and jot my comments in the margins.

Within a day after opening Republic.com, I knew I would be spending many days carefully reviewing its words, and I also knew that I’d be spending more time writing a vicious critique of the author’s misperceptions and ill-conceived proposals to solve non-existent problems.

II. The “Problems” Identified by Sunstein in “Republic.com”

Since I don’t agree with much of what Sunstein says, I doubt he would agree that this is a fair summary of his analysis. I urge anyone interested in these subjects to buy Sunstein’s book and read it for yourself.

Sunstein’s basic thesis: “consumer sovereignty” may conflict with the role of citizens in a republican government. He writes: “A commitment to consumer sovereignty may well compromise political sovereignty if, for example, free consumer choices result in insufficient understanding of public problems, or if they make it difficult to have anything like a shared or deliberative culture” (page 45-46). “An implicaton is that an individual’s rational choices, made only with reference to an individual’s self-interest, will produce too little knowledge of public affairs” (page 100).  Sunstein quotes Brandeis: “the greatest menace to freedom is an inert people.” (page 47, quoting from a concurring opinion in a 1927 case, Whitney v. California ).

Building to this, Sunstein’s first thesis in “Republic.com” is that technology is creating more and more opportunities for consumers to select their own media diets, instead of relying on “general interest intermediaries” (TV networks, TV stations, newspapers, and magazines) to provide a broad mix of content.  As TV channels and internet news sources multiply, “Filtering, often in the form of narrowing, is inevitable to avoid overload” (page 57).

One such opportunity is the concept of the “Daily Me,” a phrase intended to refer to computer or internet technology that allows consumers to view a newspaper-like home page that includes news and information tailored to each consumer’s personal preferences and tastes. Another is the “personal video recorder” (such as TiVo) which can record many hours of a consumer’s favorite programs for later viewing, and which can even “intelligently” suggest and automatically other similar programs that the consumer may enjoy, while excluding other programs.

Sunstein recognizes that the “Daily Me” represents a huge benefit to consumers, who need not wade through hundreds of TV channels, or flip past many pages of irrelevant articles, before finding content of interest. But he raises a disturbing spectre: the notion that when most consumers are able to choose a narrow diet of media content, the result may impair our community and democratic process.  “[A]s choice is increased, different individuals, and different groups, will make increasingly different choices” (page 54).

Imagine that some consumers choose to be exposed only to sports and entertainment content, and not political news or community information. Imagine that some other consumers choose to view political and community information, but they select only conservative viewpoints, while other consumers choose to hear only liberal viewpoints. Some consumers might elect to view only local information, while others may choose to learn about events in Europe, and others may select only news about the Middle East but nowhere else.

Sunstein observes some actual differences, noting that there is often little overlap between the consumer choices of different demongraphic or interest groups. “Indeed, seven of the ten most highly rated programs for African-Americans rank as the very least popular programs for whites” (page 57).  “Only one site (hotmail.com) can be found on both the list of top sites among women over fifty and the list of top sites among men over fifty” (page 58 — but when shifting from TV to the internet, Sunstein doesn’t clarify whether he is still referring to the “top 10″ or perhaps just the top 3 or 5 sites).  Internet users, Sunstein writes, “find each other, swap information, and stoke each others’ passions” (page 58). “Many of those with committed views on one or another topic . . . speak mostly with each other” (page 59).

Sunstein then makes some huge leaps, asserting without support:

* “[T]here is a natural human tendency to make choices, with respect to entertainment and news, that do not disturb our preexisting view of the world” (page 57).
* “In general, is is precisely the people likely to filter out opposing views who most need to hear such views” (page 67).
* “All too many people are now exposed largely to louder echoes of their own voices, resulting, on occasion, in misunderstanding and enmity” (page 74).

Given the importance of these statements to Sunstein’s arguments for government regulation, I think these statements deserve some concrete examples and statistical support, but Sunstein provides none.

If Sunstein’s assumptions are correct, then one result (in theory), could be isolation, as many consumers are simply unaware of the issues that concern their neighbors. Another result might be “fragmentation,” in which like-minded individuals communicate only with each other, and never hear the different viewpoints of others (pages 54-56). And the end result could be “polarization,” in which each groups’ beliefs become more intense and extreme.

Sunstein is concerned about “the pervasive risk that discussion among like minded people will breed excessive confidence, extremism, contempt for others, and sometimes even violence” (page 14). “If diverse groups are seeing and hearing quite different points of view, or focusing on quite different topics, mutual understanding might be difficult, and it might be increasingly hard for people to solve problems that society faces together” (page 61).  “To say the least, it will be difficult for people, armed with such opposing perspectives, to reach anything like common ground or to make progress on the underlying questions” (page 62).

To his credit, Sunstein turns around and argues that society can benefit when like-minded individuals with committed views speak only with each other, calling this “enclave deliberation” (pages 75-79).  Enclaves are suitable for “incubating” ideas, and for encouraging contributions from some individuals who might not speak in a broader group, Sunstein writes. But he argues that such enclave discussions must always be migrated into broader discussions that include opposing views (page 79). (I disagree.)

And finally, Sunstein writes, as individual consumers consume only their personal “Daily Me,” they might find that they can find no common experiences or events to unify a community and maintain a broad identity. Today, a huge cross-section of Americans share certain media experiences, including such fare as the Super Bowl and presidential debates, but over time a shrinking portion of Americans share these media experiences, as they fragment into ever-smaller interest groups.  In the end, if there are no “common ground” experiences or viewpoints shared by a majority of Americans (“social glue”), it may become difficult for Americans to communicate, deliberate, and resolve their differences over public policy issues (Chapter Four).

Sunstein does not suggest that these outcomes are likely, only that they are possible. His concern, is that if “consumer sovereignty” runs amok, and consumers neglect their duties as citizens, the result might be be impairment of our republican model of government, in which citizens (and their representatives) communicate and deliberate to reach some common ground on matters of public importance.  In other words, we could become an “inert people,” Brandeis’ “greatest menace to freedom.” Sunstein would prefer “citizens who are active rather than passive, curious rather than indifferent, engaged rather than inert” (page 110).

To counter “inertness,” Sunstein says, Americans have long benefited from “unwanted and unchosen encounters” with unexpected speakers and topics.  “First, people should be exposed to materials that they would not have chosen in advance” (page 8, page 34, and all of Chapter Two).  “Unplanned and unchosen encounters often turn out to do a great deal of good, both for individuals and for society at large. In some cases, they even change people’s lives” (page 35). Even if you are irritated by such encounters, and cannot be convinced to change your views, “At the very least, you will have learned what many of your fellow citizens think and why they think it.” (page 35).

Sunstein cites America’s long “public forum” history of permitting free speech in public places (parks, streets, and near institutions of government), and even extending free speech rights to some private places, such as California’s shopping malls (page 157).  He laments the possibility that in the internet age, consumers might not visit such places and thus might not be exposed to these speakers.

Sunstein also cites the “range of chance encounters” (page 11) that arise from “general interest intermediaries” (such as newspapers, magazines, and radio and TV stations) which deliver a wide variety of news and entertainment content. Their consumers are exposed, at least briefly, to a wide range of “unchosen” or “unwanted” content, while they search to find content they want.  Automatic filtering would reduce these chance encounters.

Oddly, Sunstein repeats one confusing point several times in his book: that if one citizen is exposed to an issue or viewpoint, that exposure may benefit many others. Each time he cites this example, he follows up with a limiting example of how that first citizen may share the information with others (page 93). I think he misses another important benefit: many people can benefit from the knowledge of the first citizen, even if the information is not shared . If my neighbor learns that a local factory is polluting, and my neighbor takes some action to stop or reduce the pollution, I benefit even if I never learn about the issue at all. Even if ignore the crusades and education efforts of one of Ralph Nader’s consumer or environmental crusades, I will still reap the benefits of safer products and reduced pollution.

In a democratic society, Sunstein argues, it is important for citizens to be exposed to “unchosen” and even “unwanted” speech, so that they are aware of issues asnd viewpoints that fellow citizens consider important. In fact, Sunstein notes, people often react to “unchosen” or “unwanted” speech by becoming more interested in the subject, choosing to learn more, and perhaps acting on this new knowledge for the benefit of their community (pages 107-110).

Sunstain also argues: “Second, many or most citizens should have a range of common experiences” (page 9, and Chapter Four). The notion here is that common experiences, including widely-shared exposure to some identical media content, provides both a common vocabulary and perhaps even a unifying “identity” for all citizens.

III. Where Does Sunstein Go Wrong? Part I: Flawed Assumptions

Alas, I disagree with many of Sunstein’s assumptions in Republic.com, starting with the notion that a significant number of consumers either could or would actually choose to completely block themselves off from a wide range of news topics or political viewpoints.

First, the technology question.

Sunstein writes: “As of this writing, many newspapers, including the Wall Street Journal, allow readers to create “personalized” electronic editions, containing exactly what they want, and excluding what they do not want” (page 5, emphasis added).

I don’t think Sunstein lives in the same technological universe I do, because no effort I have ever made to “personalize” or “customize” newspapers has allowed me to be exposed only to “exactly” what I want. Instead, every filtering technology I’ve seen is both over-inclusive and under-inclusive, delivering many articles that are of no interest to me and failing to deliver articles on topics that I expressly stated that I wanted to see.

Sunstein also quotes Gordon Bell, then-CEO of search engine Excite, as saying “About 43 percent of out entire user data base has personalized their experience on Excite” (page 7). Alas, I’m pretty sure that Mr. Bell and Excite (like Yahoo and other “portal” sites) view any user who has ever registered or selected a single preference, as having “personalized” their experience, even though the system may not actually provide a personalized experience based on the user’s actions, and the user may have received no benefit from the so-called “personalization.’

In other words, I believe that personalization technology is still in its infancy, with extremely limited capabilities, and that only a tiny fraction of consumers are “filtering” their news or information in any meaningful way.

Of course, improvements will come in time, and I can imagine a day in the not-so-distant future in which I can design my “Daily Me” to include all articles that contain certain keywords, or pertain to certain subjects selected from a huge menu, while excluding articles that contain certain other keywords or pertain to certain subjects. If this technology had been in place in 2001, perhaps I’d know nothing about any sports scores or celebrity rumors, and I’d spend the time saved reading substantive news.

But even if I’d expressed a desire to learn nothing at all about international news, politics, or crime, and implemented filters accordingly, I’m quite certain that on September 11, I’d have seen headlines and news (within hours) about the airplanes crashing into the World Trade Center towers and the Pentagon. (In reality, I was in Paris on September 11, 2001, and ascended the Eiffel Tower in late afternoon, completely unaware of the tragic events that had occurred a few hours earlier in New York.)

In my opinion, the technology will never be perfect (and I doubt anyone would want it to be perfect), and as a result even the most ardent isolationist will be exposed to news and viewpoints she did not want to see. But I’m sure that even with imperfect technology, it will be possible for some consumers to filter out content and never learn about a major buildup of troops on the India-Pakistan border, nor about a toxic-gas release in their own city.  And this is a concern to me, just as it is a concern to Professor Sunstein.

An interesting side note: as filtering technology improves, I’m sure that many clever speakers will find ways to “spoof” filters, so that their news or information will appear to pertain to a subject people wish to see, when in fact it is about a subject or viewpoint that people dislike. And the filtering technology will then be adapted to impair such spoofing, and the cycle will probably continue forever. (We already see this with “email spam,” in which the subject and sender’s name are forged to make the unwanted advertisement appear to be something else.)

If Technology Permits, Will Sunstein’s Problems Actually Arise?

Sunstein writes that “there can be no assurance of freedom in a system committed to the “Daily Me’” (page 50), as if this is a new risk. But there is no assurance of freedom for any of us, in any system. The absence of an “assurance” does not mean that there is actually any genuine risk that we will lose freedoms.

In arguing that “consumer sovereignty” (via unrestricted filtering) conflicts with the duties of citizens, Sunstein writes: “The choices people make as political participants seem systematically different from those they make as consumers” (page 114).  Yet Sunstein admits: “Everything depends on what people seek to do with the new opportunities that they have” (page 87), and he fails to demonstrate that most people will actually make the wrong choices.

Indeed, Sunstein concedes several times in his book that the “Daily Me” only creates problems if a significant number of consumers choose to limit their exposure to just a few topics or viewpoints, and that consumer-citizens may make wiser choices. “Citizens are often aware that their private choices, under a system of limitless options, may lead in unfortunate directions, both for them as individuals and for society at large. . . . They might attempt to restructure alternatives and institutions so as to improve the situation” (page 107).  “Indeed people [often] make choices so as to promote wider understanding and better formation of their own preferences” (page 112).

Sunstein also acknowledges that even if people make the “wrong” choices, filtering content in ways that cause isolation, fragmentation, polarization, and ill-prepared citizens, there might still be no way to improve the situation: “If, for example, people will never listen to points of view with which they disagree, there would be little point in exposing them to those points of view” (page 168).  In other words, Sunstein suggests that there may be no way to turn around those “consumers” who won’t live up to his expectations for citizens.

If Technology Permits, Will Many Consumers Filter So Narrowly?

I know that if I could customize my local newspaper to create a “Daily Me,” I would immediately jettison all sports content, and I would likely exclude gossip and celebrity news. And I might seek ways to limit the number of times I would be exposed to endless scandals (I’d want to know if my Congresswomman had an affair with an intern in her office, but I would not want to read the same “gussip and rumors” repeated every day, as occurred in the past few years). And if I find a particular columnist to be uninformative and vitriolic, I might block his column.

I know I’m unusual because I read at least a half-dozen weekly and a half-dozen monthly magazines (mostly specialized for the computer industry, plus some lawyer magazines and some general interest stuff). And I’m not a typical consumer or citizen (in part, because I was trained first as a journalist and later as a lawyer).

But I can’t imagine that anyone I know would simply block all news on any subject, nor editorials based solely on viewpoint.

If the technology allowed:

* I might decide that I don’t want to read the police blotter, but I’d want to read crime-news articles that my local editor deemed suitable for publication.
* I might decide that I don’t want to read the day-by-day accounts of the San Francisco “dog-mauling murder” case, but I’d still want to know of major developments and certainly the verdict.
* I might decide to exclude music reviews and standard news accounts of local concerts, but I’d still want to know if there was a riot at a local concert.
* Since I am a “socially liberal, fiscally conservative” Democrat, and since I’m a member of the Sierra Club and the ACLU, I might choose to allot a higher priority to news subjects or editorial viewpoints that match my interests, but I’d still want to see different articles on a fair number of topics and viewpoints.
* And no matter what news or information I select for inclusion or exclusion, I’d always make room for the “top three” news headlines selected by a local editor, and probably another “top three” news headlines selected by an editor at the New York Times or the Washington Post or some other “trusted” publication, and I’d also make room for a dozen or so “random” news selections each week.

Certainly, I assume that some people would elect to implement extremely narrow filters, including filters on both subjects and viewpoints. After all, some people elect to live in isolated communities, and many people are quite reasonably upset if their children are exposed to inappropriately sexual content, or to political or social speech they consider hateful or sacreligious. And of course, many people don’t read at all, nor watch news programs on TV, and choose not to be informed citizens.

But in the end, I doubt that “filtering technology” and the “Daily Me” will result in the level of isolation, fragmentation, or polarization that Sunstein considers problematic.

IV. Where Does Sunstein Go Wrong? Part II: Bad Solutions

Sunstein recognizes that most (perhaps all) of the potential “problems” he identifies might be avoided or solved if consumers or technology providers anticipate the problems. For example, he writes that even private partisan websites miight “take steps to ensure that people are exposed to a diversity of views” (page 30), and he acknowledges that “Indeed, people [often] make choices so as to promote wider understanding and better formation of their own preferences” (page 112).

Chapter Six of Republic.com is entitled “What’s Regulation? A Plea” and as I read it, I quickly assumed that Sunstein’s proposed solutions would include government regulation of internet news or filtering technology. I was right. To his credit, Sunstein clearly recognizes that any regulation of speech is controversial, and while I disagree with some aspects of his analysis, I think he is mostly accurate when discussing the state of American constitutional law on this subject. In other words, he is correct that in some situations, when the reasons are compelling, regulation of speech is permissible and even desirable.

Alas, Sunstein proposes that regulation be considered in the absence of any genuine problem, and he proposes regulations that would actually create some of the very problems which he claims they are intended to solve!

Disclosure of Content and Viewpoints, and Enabling of Filtering

In Chapter Three, “Fragmentation and Cybercascades,” Sunstein discusses the issue of “filtering” and notes that if consumers are permitted to filter out content and viewpoints they do not agree with, they may become more fragmented and polarized. In the absence of exposure to opposing viewpoints, some people may believe that their position is widely accepted and popular (since they only communicate with other believers), or that opponents have no valid arguments (since they only learn of opponent’s arguments from the mocking reports of fellow believers).

In other words, filtering may sometimes be a bad thing, if it causes isolation, polarization, and fragmentation.

Despite this apparent belief that filtering may have serious negative effects, one of Sunstein’s proposals in Chapter Eight is that producers (of broadcast or web content) be required to make disclosures which consumers could use to filter the content they see! (‘If viewers know the content of television programs in advance, they can use market pressures, by refusing to watch,” page 173).

Sunstein goes on to imply that only web sites with certain viewpoints be subjected to disclosure requirements: “The idea would be to ensure that anyone who is engaging in a practice that might produce harm, or do less good than might be done, should be required to disclose that fact to the public,” (page 174).

In fairness, Sunstein’s actuall recommendation is less clear than the last two quotes may imply. His actual “proposal” is so vague that it’s possible that he only intends to require that large broadcasters be required to disclose their public-service programming on a quarterly basis. If so, we must ignore dozens of pages of analysis about regulation of the internet and “harmful” web sites.

‘Must Carry” and Requiring Links to Opposing Viewpoints

Sunstein devotes many pages of his book to observations that many political web sites include links only to “like-minded” web sites, and rarely include links to web sites with opposing viewpoints (except when ridiculing such sites). Two of his six “proposals” would create< > “must carry” rules, in which “popular” or “highly partisan” web sites would be required to provide free hyperlinks to other web sites.

Proposal #5 would require the “most popular Websites” to carry links to other web sites, in order “to provide exposure to substantive questions.” Proposal #6 would require “highly partisan” web sites provide links to opposing views.

I simply can’t imagine what Sunstein is thinking here. He borrows a now-abandoned notion (the “Fairness Doctine,” requiring broadcasters to provide time for opposing views, and create and broadcast “public interest” programming — requirements that were imposed on broadcast stations who were granted free government licenses from a very limited broadcast spectrum), and attempts to apply it to a new medium which has no similar spectrum limitations or licenses.

What would it mean? What would the regulations say?  Sunstein certainly doesn’t offer a clue.

Let’s assume we are trying to write the regulations to require links to substantive sites, or to opposing views.

What exactly is a “highly partisan” web site? What exactly is a popular web site?

Where do the links go? Do they replace current paid advertising, or the webmaster’s existing links to other web sites she endorses? Do they get dumped on a “links page” that nobody ever visits? What if my site has a policy of not linking to ANY other web site (as it appears 50% of partisan sites do, in Sunstein’s examples on pages 59 and 64)?

Many web sites, especially partisan web sites, have a policy of not linking to any other sites (including “like-minded” web sites). Indeed, Sunstein’s own analysis (at pages 59 and 64) show that about half of partisan web sites contain no external links at all, (probably to avoid claims or favoritism, or in the case of political candidate and party web sites, potential problems with the Federal Election Commission or state election rules). Apparently Sunstein wants to force these sites to spend money to re-design their sites and submit more paperwork?

Okay, assume now that we agree on where the links will appear on my popular or highly-partisan web site; what sites do I link to?  Can I choose which opposing view sites I link to?  Can I link to the poorly-designed, poorly-written, and absurdly extremist site, or must I link to a better-designed, more rational and reasonable opposing view?  If I operate a pro-choice site, I might find it preferable to link to a hateful “murder the abortionists” site instead of linking to a thoughtful site offering support and funds to women who wish to consider adoption instead of abortion.  Can I decide to link just to a few poorly-designed extremist sites, or must I link to the “most popular” of the “pro-life” web sites? Who decides? Am I allowed to mock the sites when I link to them?  If I am the Democratic candidate for office, do I link to my Republican opponent but not the Green candidate?  If I am the Republican candidate, can I link to the Socialist and Green candidates but not my Democratic opponent?

He Must Be Kidding: Oddly, although Sunstein devotes considerable discussion to the issues of “content-neutral” versus “content-specific” speech regulations and “viewpoint-neutral” versus “viewpoint-specific” regulations, he makes no reference to the notion of “forced speech,” in which a speaker is required to make a disclosure, or worse to actually say something he believes is untrue. Of course, such laws can be written, if there is a compelling governmental interest ” we know this from viewing any American cigarette package, and we also know that in the context of an election subject to campaign-funding laws, disclosures may be required to identify the entity paying for the election advertisement or materials. But even in these extreme cases, the tobacco companies are not forced to provide the phone number for the American Lung Association, and a Republican candidate for Congress cannot be required to provide the name and contact information for the Democratic opponent!

Sunstein’s proposal to require partisan web sites to link to opposition views is intolerable under American free speech principles.

Conclusion: In Republic.com, Cass Sunstein offers some interesting ideas — worth thinking about — but unfortunately he fails to provide any credible support for some of his most surprising conclusions and concerns.  And ultimately, the book is fatally flawed by Sunstein’s earnest support for government regulation of speech and his bizarre proposals for unworkable regulatory “solutions,” some of which seem aimed at enabling rather than discouraging, the often-implausible problems that he identifies.  It would be great to read a book on this subject that wasn’t marred by muddled thinking.

(January 21, 2002) by Mark J. Welch

• Mark Nadel’s review in the Stanford Law Review (March 2002)
• Stephen Labaton’s review in the New York Times
• James Fallows’ review in the Industry Standard
• George Will’s review at TownHall.com
• Matt Gaylor’s review at the Ethical Spectacle.com
• Peter Coy’s review in Business Week (copy)
• Merle Rubin’s review in the Christian Science Monitor
• Nancy L. Savitt’s review in the New York Law Journal and Yang Yunyun’s review in The Edge (Malaysian)
• Adam D. Thierer’s review in Regulation (Cato Institute) [PDF]
• Discussion at ChristopherLydon.org about Republic.com
• Analysphere review of Republic.com
• Paul Rosenberg’s review in Philadelphia CityPaper.net
• Jason Roth’s Letter to Princeton University Press
• Web of Politics (multiple comments about Republic.com)
• Richard R. Forsten’s review for the Delaware State Bar Ass’n
• Archive of closed discussion forum with Cass Sunstein at Princeton University Press
• Article by Cass Sunstein in The Little Magazine, borrowing from Sunstein’s “forthcoming book” Republic.com
• Article by Cass Sunstein in Boston Review

“When I saw the December [1993] issue of the ABA Journal , I immediately felt irritated at finding yet another lawyer’s magazine cover story on a death penalty case (‘Reasonable Doubts,” page 38). I thought, haven’t we read enough about this subject by now?
“But then I read Richard Fricker’s article and I realized that no, we have not read enough yet.
“The article was a remarkable piece of investigative journalism. What impressed me most was that it did not seek to vindicate the man convicted of this crime, buyt instead focused on the system that has probably made it impossible for us to ever know if he was guilty.
“I encourage you to resist any nagging suggestions in the future that we have already read enough about injustice.’

– Mark J. Welch, Pleasanton, Calif.

But invariably, when I think about why I chose to attend law school, and when I think about what I would like to achieve as an attorney, I am drawn back to a newspaper article I read in the spring of 1980, while I was a freshman in college. I can’t find that clipping, but here’s what I remember:

The State of Virginia had discovered that certain individuals who were institutionalized decades earlier had never been told that they had been sterilized. One of those women was named Doris, and she was surprised to be told that the operation she had been forced to undergo when she was a teenager was not an appendectomy. She had later married and she and her husband tried for many years to conceive a child, but they believed that God had decided they would not, and they had accepted it.

As it turned out, Doris was the sister of Carrie Buck, who was famous for having been the subject of a U.S. Supreme Court case, Buck v. Bell. In that case, the state of Virginia sought to sterilize Carrie Buck, because so-called “experts” testified that she, her mother, and her illegitimate daughter were all “imbeciles.” In a unanimous, sweeping decision written by Justice Oliver Wendell Holmes, the U.S. Supreme Court gave states broad license to sterilize persons deemed defective.

But no one ever told Doris Buck that she was being sterilized, until a half-century later.

It was a poignant news article, published on a slow news day (Saturday). For reasons I could not comprehend, the story gripped me. Assigned to compile a research bibliography for an English class, I chose the subject of “eugenic sterilization.” I scoured the college library for related articles and books, and I made my first trip to a law library to read the U.S. Supreme Court case.

And I slowly realized something, seemingly for the very first time in my life: the law can be wrong. Even a unanimous opinion by the nine most powerful judges in the nation can be one hundred percent wrong. And somehow, I wanted to fix that. I wanted to step in and figure out why the world could be so wrong.

As I did my research, I learned a lot about how the law had changed, and why, and I was pleased to learn that eugenic sterilization had been thoroughly discredited. A later Supreme Court decision even prohibited sterilization of convicted criminals. But still I was dissatisfied, because it was so clear that something was wrong.

Today, I know what was grinding at me: the U.S. Supreme Court ruled that someone could be sterilized only under stringent safeguards to insure that “due process” was honored — it should never have been done secretly, without the patient knowing. And the testimony and evidence should be compelling, not weak.

Several years ago, I bought a book on natural history by Steven Jay Gould (“The Flamingo’s Smile”), to read on an airplane. I was shocked to find that one chapter was about this same family, the Bucks. Mr. Gould, clearly no fan of eugenic sterilization, had done some homework and discovered that Carrie Buck had been sterilized based on the flimsiest of “evidence.” She had been impregnated by a foster brother, and institutionalized not because she was mentally defective but because it was an embarassment to the foster family. Her daughter was diagnosed as being “slow” at the age of two months, by an incompetent social worker whose measure was that the baby was less developed than another six-month-old baby she saw at the same time. And it turns out that this “imbecile” baby later enrolled in regular school and was an honor student (but died from illness in childhood). It turns out that the “facts” in the case were compiled by a “scientist” who sought broad authority to permit eugenic sterilization across the country. And that’s exactly what happened during the next few decades.

In the end, eugenic sterilization was not abandoned because of legal jurisprudence, or better science: instead, the primary reason was that it became offensive when Hitler abused it, citing the false science of eugenics as authority to exterminate millions of people, all branded as “defective.” Slowly, or perhaps suddenly at the end of World War II, Americans realized that it was impossible for human scientists to set aside their own prejudices when evaluating “defects” in others.

As compelling as this story is, it took me more than a dozen years to understand why it grasped me so tight.

Today, the newspaper reported that the Nobel Peace Price was awarded to two men working to resolve another injustice: the annexation and repression of the former Portuguese colony of Timor by Indonesia over the apst 20 years. Oddly enough, that tiny and short-lived independent nation was the subject of another research paper I wrote during my second year of college. At the time, I was amazed that such injustice could be tolerated and ignored by the rest of the world.

In the end, it was not Carrie Buck or her sister Doris, or the repressed people of Timor, but something my own experience that was gripping me: the experience of having the American system of law and justice fail completely.

You see, as a child, I was sexually abused by my brother, and when I found the courage to report it, I found no justice. My parents, and psychologists, and even police, could not decide what was true and what was not (although my brother had molested several other children already), and in the end the abuse even resumed, and after that the abuse was not just my brother but the whole “system.”

A decade later, while I was in college, my brother was finally arrested convicted of abusing other children; five years after that, he was convicted again and imprisoned for seven years. But I found no justice in that; it was too late.

I researched the case of Buck v. Bell and related issues of eugenic sterilization because I wanted to see that in the end, injustice can be ended. But it wasn’t ended: Doris Buck was denied due process and children, and being told after fifty years that she had been lied to was hardly justice. And in my own case, seeing my brother in prison didn’t bring me justice either. And it was those experiences that drew me into the law, and made me want to do something to change the system.

Over these last few years, as I have practiced law, I have learned how unfair and arbitrary the law can be. I have seen lawyers lie, cheat, and steal from their own clients. I have seen judges make bad rulings, and I have felt helpless as I saw injustice occur.

And gradually, I have begun to adjust my expectations of what the law can do, what the system can do, and what I can do. And this makes me uncomfortable. No, more than that: it makes me feel less human. What kind of person am I, if I can shrug off a story about the incompetence of a child protective services worker, or the sight of a judge ignoring the facts and the law to return a vulnerable child in a dangerous home?

I suppose I am only human, and somehow that does not make me feel satisfied.

Why did I become a lawyer? I wanted to change the world. I still want to change the world. But in the end, it is not “the world” or “the system” we must change: it is ourselves. The fault I find most often is not in the law or the legal system, but in the people whose judgement is wrong; and I cannot find in my heart any better tool for improving judgment, except time dedicated to the tasks at hand, and perhaps this is the one flaw in the legal system: it does not allocate enough time or attention to those who encounter it, and quick decisions are often wrong.

Some related web sites:

• Two New York Times news articles from Spring 1980: http://www.law.du.edu/sterling/Content/ALH/buck_ps.pdf (see also: http://www.buriedinside.com/sex.html).
• From the National Center for Human Genome Research: Scope Note: Eugenics (by Mary Carrington Coutts & Pat Milmoe McCarrick) and Eugenics Bibliography – includes many links related to Buck v. Bell
• Biographical information on eugenicist Harry Hamilton Laughlin (“worked on Buck v. Bell decision”) — written by the “American Life League” (pro-life group)
• Eugenics in Iowa – research paper by Catherine Ingram
• Choose Better Human Genes – by Howard Holme
• Morning and < a> afternoon Transcripts from Clarence Thomas’ confirmation hearing – including quote in which Thomas criticizes the opinion in Buck v. Bell.
• Roe v. Wade – portion of US Supreme Court opinion citing Buck v. Bell as authority – copy
• Chapter 12 from SHAPING GENES: Ethics, Law and Science of Using New Genetic Technology in Medicine and Agriculture – by Darryl R. J. Macer, Ph.D. Eubios Ethics Institute 1990
• “Techniques in Conflict: Science, Technology, and the Courts in American Public Policy” First Draft of Adam Stone’s thesis

(February 9, 1996) The First Amendment of the Constitution of the United States of America provides that Congress may enact no law which abridges “freedom of speech, or of the press.” The Supreme Court has interpreted this to mean that Congress may not prohibit speech merely because it offends some people; after all, Americans often offend each other, especially when discussing politics. Congress also may not impose restrictions that would reduce all discourse to the level of a child, or to avoid offending hyper-sensitive people.

In February 1996, Congress violated the Constitution of the United States by enacting the “Telecommunications Act of 1996,” which included provisions from the “Communications Decency Act” that outlaw any online communications which might be considered “indecent” or “patently offensive” to someone. (See the excerpts from the Act below.)

The law also expressly authorizes any online service or Internet service provider to censor any communications which it believes might be “objectionable” to someone, and removes all legal remedies otherwise available to those affected by that censorship. This amounts to an unlimited censorship license.

These provisions are designed to undermine free speech. And, although I’d like to blame this misguided law on the Republicans and their “Contract on America,” the truth is that about 90% of Congress voted for the law.

What can we do about it? Not much. Fortunately, theAmerican Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF) filed a lawsuit challenging the Constitutionality of the Communications Decency Act in federal court immediately after President Clinton signed the law. But until that suit is resolved, anyone whose message might be “indecent” or “offensive” risks criminal prosecution, and online service providers have unlimited discretion to censor any information which someone might consider “indecent” or “offensive.”

I find this law to be indecent and offensive to the American people, and to the tradition of free speech in this country. I don’t want obscene pornography to be available to children on the Internet, but that’s not what this law is about. The “Communications Decency Act” is about imposing broad restrictions on speech protected by the U.S. Constitution. It’s about stifling public debate on issues like abortion and birth control; it’s about barring access to art and literature. It’s wrong.

“Whoever (1) in interstate or foreign communications
“(A) by means of a telecommunications device knowingly (i) makes, creates, or solicits, and (ii) initiates the transmission of, any comment, request, suggestion, proposal, image, or other communication which is obscene, lewd, lascivious, filthy, or indecent, with intent to annoy, abuse, threaten, or harass another person;
“(B) by means of a telecommunications device knowingly (i) makes, creates, or solicits, and (ii) initiates the transmission of, any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age, regardless of whether the maker of such communication placed the call or initiated the communication;
“shall be fined under title 18, United States Code, or imprisoned not more than two years, or both.

A new section 223(d) is added, which reads:

“Whoever (1) in interstate or foreign communications knowingly (A) uses an interactive computer service to send to a specific person or persons under 18 years of age, or (B) uses any interactive computer service to display in a manner available to a person under 18 years of age, any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs, regardless of whether the user of such service placed the call or initiated the communication; or (2) knowingly permits any telecommunications facility under such person’s control to be used for an activity prohibited by paragraph (1) with the intent that it be used for such activity, shall be fined under title 18, United States Code, or imprisoned not more than two years, or both.”

This law appears to prohibit most messages about abortion or birth control.

“No provider or user of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected”