Constitutional Right and Normative Frameworks: The Information Age

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Stephen Gikow

Lingering in the background of many of the articles appearing in The Constitution in 2020 is a debate about the rhetorical framing of rights and policy.  The debate is perhaps nowhere more evident than in the transition from Robert Post’s "A Progressive Perspective on Freedom of Speech" to Yochai Benkler’s "Information, Structures, and the Constitution of American Society." The authors of these two articles agree on the underlying goals of information policy: that it should encourage the public to participate in a democratic culture, foster a democratic society, and promote democratic legitimacy.  (Benkler assumes that we should “strive for a more democratic society, where individuals are ever more free and equal citizens”  (Benkler at 195). Post notes that “[t]he First Amendment safeguards the ability of persons to participate in the formation of public opinion so as to preserve the democratic legitimacy of our government”  (Post at 182). Both Benkler and Post train their arguments on similar countervailing interests (the commercial and the individual) and come to similar conclusions (generally favoring the individual).)

Despite their similar goals, Post and Benkler present markedly different ways of reaching those goals.  These different strategies create a tension, reflecting the authors’ divergent agendas. 

Post is trying to make room for good information policy within the normative framework of First Amendment jurisprudence.  His argument is about shaping information policy through a rejuvenated First Amendment: "A strong normative vision of a healthy public sphere will enable progressives to make visible important constitutional questions that are simply invisible when seen through the lens of received First Amendment doctrine." (Post at 185). At the same time, Post steers the First Amendment discussion away from the question of what we have a right to say to a question about how we ought to encourage people to speak in democratically conducive ways. 

Benkler, meanwhile, writes bluntly that information policy “must be concerned with the constitution of the U.S. society, rather than with the U.S. Constitution.”  (Benkler at 187).  He wants policy to incorporate perspectives that lie outside of constitutional jurisprudence.  Benkler (as well as Sunstein in his piece "The Minimalist Constitution") is trying to move the debate out from under the purview of the Constitution. 

It is important to keep these rhetorical frameworks in mind, since they have normative implications  Any constitutional conclusion will necessarily be more rigid and entrenched, for better or worse.  In the area of information policy specifically, this rigidity may be problematic when it comes to regulating an incredibly dynamic and unpredictable medium.  The same constitutional framework, however, provides a stronger normative foundation that appeals to both the jurisprudential and popular, in that an argument founded on constitutional principles appeals to a commonly held, more traditional set of values.  Post is right to seize on this aspect of the argument; progressives need to hang their hat on a normative perspective that has durability. 

At the same time, an overly fluid First Amendment doctrine will struggle to gain traction against a simpler normative framing (such as “all speech is free”).  Benkler, for his part, is skeptical of the boundaries that a constitutional argument imposes; he wants progressives to think as broadly as possible, to consider “the totality of the sources of freedom and constraint, equality and inequality, and to think of law in terms of its role in that broadly defined system of freedom and constraint.”  (Benkler at 195).  This added flexibility is particularly important within the information technology world where innovations are made daily and the wrong regulation could stifle individual creativity and contribution.

In outlining the differences between Post and Benkler’s respective views, I don’t intend to set-up a false choice, to suggest that we have to resolve this conundrum decisively in one direction or the other.  Rather, I think that Benkler and Post would agree that progressives will have to rely on both approaches. We will need a Post-like First Amendment argument to counter conservative appeals to more traditional First Amendment doctrine.  At the same time, we will want to push information policy further and further from under the Constitution, so we can tweak it as we learn what works best.  In other words, the successful implementation of a sound information policy will depend on harmonizing Benkler’s bid for fluidity and Post’s desire for constitutionally derived legitimacy.