DEMOCRACY AND THE PROBLEM OF FREE SPEECH by CASS R. SUNSTEIN

Author:CASS R. SUNSTEIN
Language: eng
Format: epub
Publisher: The Free Press
Published: 1993-07-15T00:00:00+00:00

Counterarguments combined. The strongest general argument against the Madisonian view would bring together several of the points made thus far. It would stress the considerable difficulty of defining political speech. It would also insist that a political conception of the First Amendment, far from fitting our convictions about particular cases, does extreme violence to them.

With respect to the problems of definition, the claim is both conceptual and institutional. It is conceptual insofar as it stresses that if we try to work with the Madisonian framework, we will be unlikely to generate a definition that fully captures what we really believe. It is institutional insofar as it stresses that even a good working definition will be susceptible to misapplication by a diverse, decentralized, and sometimes biased judiciary. And with respect to our judgments about particular cases, the claim would be that art, literature, and science are simply at excessive risk in the system I propose.

I can offer no algorithm to respond to these concerns. But I do not believe that the definition of the political is beyond judicial capacities. Under the approach I recommend, art, science, and literature would not be at serious risk. To support these claims, I now turn to particular cases.

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