NONFICTION - Nov. 21, 1993

DEMOCRACY AND THE PROBLEM OF FREE SPEECH by Cass R. Sunstein (Free Press: $22.95; 300 pp.). In the most famous passage in one of this century’s most famous Supreme Court cases, Abrams v. United States, Oliver Wendell Holmes Jr. wrote that “when men have realized that time has upset many fighting faiths, they may come to believe . . . that the ultimate good desired is better reached by free trade in ideas--that the best test of truth is the power of the thought to get itself accepted in the competition of the market . . . .” It is, deservedly, a celebrated defense of free speech--but also a misguided one, according to University of Chicago law professor Cass Sunstein in this important and persuasive new book. In “Democracy and the Problem of Free Speech,” Sunstein calls for a “New Deal for speech,” a reformulation which abandons the marketplace model set forth by Holmes in favor of one based on the thinking of James Madison (and, later, justice Louis Brandeis)--that the First Amendment is itself “part of the commitment to the experiment in self-government.” The principle of free speech, in Sunstein’s view, should be viewed “through the lens of democracy,” which means valuing political speech (very broadly defined) more than non-political, and limiting the ability of the wealthy to buy themselves favored access in what is, now, a generally unregulated media market (see Ross Perot). Sunstein’s re-evaluation of free speech is more and less radical than it initially appears: more, in that it would result in much greater protection from defamation for non-political entertainers and increased restrictions on some corporate speech, and less, in that many of the ideas presented here have been advocated, piecemeal, elsewhere. Sunstein’s achievement lies in fusing apparently disparate free-speech views into a principled, overarching, and (usually) convincing theory, a feat he manages in part by acting out within the book the sort of “deliberative democracy” that Madison, in his gloss of the First Amendment, sought to encourage. Many books on the First Amendment are published every year; very few are as significant as this one, or as likely to work their way--sometime, somewhere--into the everyday law of the land.