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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,
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
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,
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
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
such revisionist theories represent "a radical change in the way we think
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
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
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
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
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

For more information about The Media Institute and the Public Interest
visit the Institute's Web site at www.mediainst.org. 

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