Cass Sunstein, professor at the University of Chicago Law School, spoke Oct. 18 at the Annenberg School for Communication about the roots of extremist activities. Sunstein has been involved in constitution-making and law reform activities in a number of nations, including Ukraine, Poland, China, South Africa and Russia. This excerpt from his lecture discusses the role that democracy and First Amendment rights play in preventing extremism from flourishing.
There’s no question that the same social process that I’ll be emphasizing here contributed to the falling of communism in Poland, Ukraine and contributed to the fall of apartheid in South Africa.
It should be clear now that my principal theme will be the importance for democracy of unchosen encounters with diverse people, including diverse topics of ideas. Democracy requires, I’ll suggest, … that it’s a situation in which you’re exposed to topics, points of view and people that we didn’t self-consciously select as part of our universe.
My secondary theme has hit home, literally in the aftermath of Sept. 11, and that is the importance of a democracy and shared experiences including shared communications experiences which can make diverse people believe rightly that they’re involved in a shared endeavor and seeing one another as fellow citizens who sometimes need help. That’s basically all I’m going to say and the rest is just details... .
I’ve been accustomed to think of free speech as mostly about censorship. And surely what a tyrant is most concerned to do is to censor disagreeable speech. But every tyrant knows that the free speech principle will be violated to the tyrant’s advantage if public meeting spaces can be closed off.
There is a somewhat exotic constitutional doctrine which focuses on government not to censor disagreeable speech but to keep streets and parks open for expressive activity. If the mayor of, let’s say, Chicago decided it was very important just to take expressive activity off the streets so as to insure that if people are speaking they’ll do so on their own property and not use public forums for expression, the mayor would be violating the Constitution of the United States.
The First Amendment is understood to create a kind of subsidy of expression by government in the sense that streets and parks have to be open for expression.
Now if you think a bit about this idea, that public forums had to be available in the 18th and 19th centuries, it was an exceptionally important democratic safeguard and it had three different functions.
• One thing it did was to give disaffected individuals a chance to launch a specific protest against institutions or organizations that they didn’t like very much. If you wanted to organize a labor union, for example, and you were pretty unhappy with the company across the street, [the company] can’t be insulated if … the disaffected workers continued to use that street to make that protest heard by the company. So the launching of specific objections is authorized just by the virtue of having streets and parks as your own.
• If people are unhappy and have something to say to their fellow citizens, they have a right of access to diverse others by virtue of this public forum notion. If a protester wants to speak to lots of different people from lots of different walks of life, religions, race, education and such, you have a right to do that just by the virtue that you can get to the street and the park and [get your point across to] people. …
• Maybe the most important function of the pubic forum doctrine is that it imposes on all of us something like a legal—if unreinforced-by-real-duty—obligation to see people who are very different from others, from ourselves. In a way, it’s our duty to do that, so long as you’re using those streets and parks. Unchosen, unanticipated encounters with diverse others are guaranteed in a way by the public forum doctine.
Originally published on November 8, 2001