Democracy and the Problem of Free Speech.

Cass R. Sunstein The Free Press, 866 Third Ave., New York, NY 10022. 284 pp., $22.95.

The main goal of this encyclopedic and minutely reasoned work is to create a reinterpretation of the First Amendment that is powerful enough to promote a more open and vigorous exchange of views and "reinvigorate processes of democratic deliberation."

Along the way, Cass Sunstein, a professor of jurisprudence at the University of Chicago, reviews the major changes in First Amendment doctrine that have characterized the last 40 years. And he begins a needed critique of the inadequacies of current doctrine and of the often twisted logic by which the Supreme Court has brought the law of freedom of expression to its present confused state.

Democracy and the Problem of Free Speech does not attain Sunstein's very challenging goal. But it does contain important ideas and useful analyses, and it attempts to broaden the discussion on freedom of intellect and spirit in the electronic age.

It is Sunstein's contention that neither the government nor the courts' application of the First Amendment should become an obstacle to a reinvigorated democratic discourse and that, in particular, "what seems to be government regulation of speech might, in some circumstances, promote free speech. . . ." Government regulation of hate speech, for example, may advance First Amendment principles when the hate speech prevents the people at whom it is directed from participating in the public discourse. This is a powerful and important insight.

In addition to racist and homophobic speech, Sunstein applies this insight to a number of the thorniest free speech issues on the current landscape: misogynist pornography, censorship and government arts funding, and corporate speech. In discussing each issue he demonstrates that "American law protects much speech that ought not to be protected." Unfortunately, he rarely demonstrates the equally important fact that some expressions that ought to be protected--for example, family schooling choices based on beliefs central to religious identity--are not.

Each case the author discusses becomes an impetus for rethinking our understanding of the First Amendment. The central theme in this effort at reformulation is the need to make protecting political speech a priority above the other principles that might be used in interpreting the First Amendment.

Here Sunstein relies heavily on James Madison's concept of the First Amendment as essential to popular sovereignty--the free speech and free press guarantees as the sine qua non of democratic politics. Anchoring this political-discourse interpretation of the First Amendment in Madison's thought works well. But even as Sunstein praises Madison, he slights his own debt to two works by Alexander Meiklejohn--Free Speech and Its Relation to Self-government (1948) and "The First Amendment is an Absolute" (1961 SUP. CT. REV. 245 (1961)). Meiklejohn took an even broader and more powerful view of the fusion of politics and culture than Sunstein.

There is much to be said for the Madison-Meiklejohn-Sunstein idea that the First Amendment ought above all else to protect the vigor and accessibility of political discourse in a democracy. But the view ultimately succumbs to the same narrowness as current formulations. It does not explain enough to be considered a reinterpretation, and it ignores the fact that today almost every expression is a form of participation in the ongoing process of redefining American culture.

Sunstein's book is primarily a work for lawyers, legal scholars, and judges because of the density of its argumentation and the detail with which it treats both real and hypothetical cases. It is worth reading just for the review and critique it presents of existing law. But though Sunstein is adept at exposing the shortcomings of our understanding of the First Amendment, his apparent understanding of 21st century culture dominated by the electronic media is so narrow that it thwarts the broad synthesis he tries to produce.

Sunstein's inability to produce a powerful explanatory reformulation of the First Amendment is due not only to his somewhat formal view of American culture but also to his decision not to consider any part of the First Amendment except the free speech and press clauses. Had he tried to deal with the freedom of belief embedded in the religion clauses, or with the freedom of assembly and petition, he might have gotten more leverage for his "New Deal for Speech."

By starting with a more comprehensive view of the system of freedom of expression and a more sensitive vision of modern culture, Sunstein might have been more successful in addressing the crucial problem of protecting freedom of intellect and spirit in a society in which the lines between culture and politics, image and reality, public and private, have become nearly indiscernible.

Still, Democracy and the Problem of Free Speech stimulates and informs both the legal and the public debate about how to apply age-old democratic principles to modem realities unimaginable only two generations ago.