Thursday, January 8, 2009

Free speech under Obama: First Amendment Center Loves Kagan; Sunstein freaks me out

The First Amendment Center gushes over President-elect Obama's nomination of Harvard Law School Dean Elena Kagan as Solicitor General. Seems Kagan refuses to join some fellow liberals' quest to regulate disfavored forms of expression including "hate speech" and porn:

President-elect Barack Obama’s nominee for U.S. solicitor general — Harvard Law School Dean Elena Kagan — has an impressive pro-First Amendment record of scholarship.

An academic who also worked in the Clinton administration, Kagan wrote a number of First Amendment-related law-review articles while teaching at the University of Chicago Law School in the 1990s. In those articles, Kagan — who clerked for the late Justice Thurgood Marshall — has tackled such issues and doctrines as hate speech, pornography, viewpoint discrimination, secondary effects and more.


In her 1993 University of Chicago Law Review piece, she wrote that proposed regulations on hate speech and pornography failed to adhere to the fundamental First Amendment principle of viewpoint neutrality — that the government cannot favor certain private speakers or viewpoints over others.

Between this good news about Kagan and the early indications of the Administration's views on IP, I had started to wonder whom I could spend the next four years complaining about. I think I've found him! As Adam Thierer helpfully reminds us, Cass Sunstein, Obama's nominee as head the White House Office of Information and Regulatory Affairs (OIRA), has proposed some truly batty ideas, including (at least until recently) some form of a "fairness doctrine for the Internet":
In, Sunstein argued that the Internet is destroying opportunities for a mingling of the masses and shared social experiences. The hyper-customization that specialized websites and online filtering technologies (blogs, portals, listservs, political websites, etc.) offer Americans is allowing citizens to create the equivalent of a highly personalized news retrieval service that Sunstein contemptuously refers to as “The Daily Me.”
To Sunstein, the Internet is apparently guilty of the unspeakable crime of offering citizens and consumers too much of exactly what they want! But, according to his logic, the masses just don’t know what’s good for them so they must be aggressively encouraged (and potentially forced) to listen to things that others — namely, Sunstein — want them to hear. As Thomas Krattenmaker and Lucas Powe, authors of Regulating Broadcast Programming, argue: “Sunstein has dressed an older argument in more modern garb, but at bottom it is the persistent belief of some elites that if only they could gain power, they would use it to impose their views of the good on those who are less enlightened.” It’s what my favorite political scientist Thomas Sowell refers to as “The Vision of the Anointed.”
Sunstein also says he believes "the idea that the Constitution protects commercial advertising is a mistake" -- which he concedes is "a pretty extreme position." Everyone who's comfortable with a self-described anti-commercial-speech "extrem[ist]" as an uber-regulator, please raise your hand.

I suppose we're supposed to take comfort in the fact that Sunstein now admits the Internet fairness doctrine idea he had touted only a few years before is "stupid and almost certainly... unconstitutional." But I remain nervous; he will rip my "
blogs, portals, listservs, political websites, etc." from my cold, dead hands...


  1. Thierer was much too harsh on Sunstein. In his most recent book on the Internet, "Infotopia," he is much more reasonable. He is affiliated with Harvard's Berkman Center - a pretty good indicator that pro-Internet types like him.

  2. I find this nominee at the greatest peril to our constitutional subjectees & those readers i.e; those whom find freedom at large in which Americans enjoy and have preserved since the founding of our fathers. I pray to God that our Congress and it appears that the Republicans or independents must keep the Democrats nose to the grindstone in pursing all avenues of viable information on Ms Kagan or otherwise as you have informed we may find that she will lead us on a primose path as those the Anointed One has appointed to such high politico offices.


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