Republic.com.

REPUBLIC.COM. By Cass Sunstein. Princeton: Princeton University Press. 2001. 224 pp.

I. INTRODUCTION

In his perceptive work, Code and Other Laws of Cyberspace, Larry Lessig observed that the efforts of businesses to modify the code of cyberspace to satisfy their commercial interests were producing an environment that threatened many of society's fundamental values. Lessig urged the public, particularly libertarians, to carefully consider both the full social costs and benefits of such architectural changes to the Internet before they were a fait accompli. To the extent the public believed social values needed protection, he warned that passivity could be more dangerous than careful governmental action. (1)

Cass Sunstein's Republic.com offers an intriguing and complementary message. His is a Huxleyan Brave New World perspective in contrast to Lessig's Orwellian concerns. While Lessig focuses on how the acts of others may harm society, Sunstein concentrates on the dark consequences of the self-serving actions of citizens. He extends the approach of Nell Postman's Amusing Ourselves to Death--a criticism of the television medium's surreptitious harmful effects--to the Internet:

   What Orwell feared were those who would ban books. What Huxley feared was
   that there would be no reason to ban a book, for there would be no one who
   wanted to read one. Orwell feared those who would deprive us of
   information. Huxley feared those who would give us so much that we would be
   reduced to passivity and egoism. Orwell feared that the truth would be
   concealed from us. Huxley feared the truth would be drowned in a sea of
   irrelevance. (2)

Sunstein argues that if people come to rely on custom-edited newspapers, which MIT's Nicholas Negroponte has dubbed the "Daily Me," (3) they will, unintentionally, threaten a foundation of the American democratic system. By efficiently serving citizens' consumer goals, he believes that Daily Mes actually undermine citizens' political interests, permitting consumer sovereignty to trample political sovereignty. (4) He concludes that "[r]ather than a utopian vision, [the Daily Me] is best understood as a kind of nightmare," (5) and his warning about the socially isolating consequences of such specialized technologies (6) echoes, in some respects, those of Charlie Chaplin in "Modern Times." (7) He asks the public to think carefully before embracing the attractive, but stealthily harmful, Daily Me option.

Sunstein expresses concern that Daily Me filters will restrict the attention of even open-minded citizens to the few areas of their specialized interests. He fears that they will leave individuals oblivious of many of the shared experiences that now unify the nation (8) as well as the challenging new viewpoints and issues that now reach them via unexpected or unchosen exposures. He also worries that the Internet will invite close-minded citizens to become more extreme in their views by helping them to congregate with other extremists in enclaves where, psychological studies show, such deliberation generally heightens their extremism. Sunstein sees these phenomena as threatening a well-functioning system of free expression, and thus, a strong deliberative democracy, issues also explored by Andrew Shapiro's The Control Revolution. (9) Although Sunstein often refers to and relies on Shapiro, Sunstein focuses more on the impact of consumer interests as manifest in the Daily Me and of "enclave deliberation"--deliberation by fragments of a community. (10)

Certainly Republic.com deserves praise for channeling public attention to and stimulating thinking about the potential hidden effects of cyberspace on the American system of democracy, and for advocating efforts to preserve and promote deliberation and address polarization in a cyberspace environment. It is comforting that someone with Sunstein's stature and both breadth and depth of knowledge of freedom of expression and democracy is worrying about this issue. He deserves particular praise for his inter-disciplinary approach--considering significant research in psychology--in analyzing enclave deliberation.

It is somewhat disappointing then to report that Sunstein does not deliver the deep and perceptive treatment of the issues that this author had expected. For example, Sunstein fails to prominently acknowledge that individuals most commonly use filtering as a time management tool to help them consume information more effectively, not as a screen against serendipity or challenging viewpoints. Hence, he neglects to observe that open-minded citizens are likely to design customized filters to provide precisely the kinds of information that he fears that filters will exclude: common experiences and diverse views on important public issues.

Furthermore, he fails to note that even close-minded individuals will find filters ineffective for diminishing their most significant daily contacts with unwanted messages, which now occur through unfiltered channels of communication. Those channels include private contacts with family, friends, and colleagues, passages through public spaces, and the efforts of Hollywood and Madison Avenue, whose sine qua non is generally to create the most broadly shared experiences possible. Moreover, creative artists are likely to include at least some examples of contrasting viewpoints and deliberations about important public issues in their products because such contrast and tension works as effective drama.

It is also regrettable that Sunstein offers only a cursory treatment of proposals for taking advantage of the attributes of cyberspace to combat polarization and promote deliberative democracy. He explicitly states "I do not intend to offer a set of detailed policy reforms or any kind of blueprint for the future; this is not a policy manual," and the six proposals he offers in one 24-page chapter resemble retreads of older standard proposals. (11) They lack the imagination typical of his other work.

The rest of this review considers these matters in more detail. Part II examines the two types of information that appear to be most important for citizens to share so as to preserve an effective deliberative democracy: common experiences and contrasting viewpoints on public policy issues. Part III discusses why both open- and close-minded individuals are likely to use Daily Me filters to gain access to common experiences and that the open-minded citizens will also likely seek access to contrasting viewpoints. Part IV explains why even the Daily Me filters of closed-minded individuals will not protect them against exposure to opposing viewpoints via the many channels of communication that are beyond the coverage of such filters: the many forums of private conversation as well as public forums. Part V discusses Sunstein's concern that deliberative enclaves maintained by close-minded extremists will lead to increased polarization. Part VI touches on a few ideas about how cyberspace may be employed to promote more effective democratic deliberation.

II. THE INFORMATION CITIZENS NEED TO FOSTER DELIBERATIVE DEMOCRACY

Sunstein finds that for a deliberative democracy to function effectively, it is important that citizens have access to three types of information:

   [1] ... materials, topics, and positions that people would not have chosen
   in advance, or at least enough exposure to produce a degree of
   understanding and curiosity; [2] ... a range of common experiences; and [3]
   ... exposure to substantive questions of policy and principle, combined
   with a range of positions on such questions. (12)

His concern with the first type of information, which he characterizes elsewhere as a kind of serendipity, appears to be somewhat misplaced to the extent he treats it as separate and apart from the other two. The second category of information, which he describes as providing a social glue, appears important for fostering community. The third type is clearly important and appears to be virtually identical to the type of information sought by the FCC's former "fairness doctrine."

A. Common Experiences

Sunstein believes that to ensure an effective system of freedom of expression in a democracy, many or most citizens should have a range of common experiences, (13) well characterized by one commentator as "a kind of social glue, a common cultural reference point in our polyglot, increasingly multicultural society. (14) In addition to enabling communication, common experiences can also stimulate conversation, by creating mutual interests. (15) In fact, he defines "solidarity goods" as particularly valuable precisely because they are consumed by many others and thus provide a common experience that can be shared. (16)

Certainly Sunstein is correct that "[t]o the extent that choices ... proliferate, it is inevitable that diverse individuals ... will have fewer such reference points. Events that are highly salient to some people will barely register on others' viewscreens." (17) Yet, three institutions make particular efforts to provide Americans with common experiences: schools, the entertainment industry, and advertisers. (18) Those setting the curriculum for public elementary and secondary schools seek to ensure at least a minimum familiarity with general world knowledge, and post-secondary schools often establish minimum breadth requirements to ensure that their graduates share some further understanding of the world. (19) As already noted, most of those producing films, television shows, musical recordings, etc., also generally attempt to gain the largest possible audiences for their stories. (20) Finally, advertisers, seeking to maximize the sales of whatever product or service they are promoting, seek to spread their message to a maximum audience of potential buyers.

Two types of common experiences are particularly important for enabling individuals to be part of a community: a common language to communicate and awareness of important names, places, events, etc., and significant details and stories associated with them. Having a common language (21) is probably the most important element for fostering community. (22) Thus, the reality of a truly global community is facilitated by the hegemony of English language entertainment, science, and business enterprises. (23) One also needs to know the relevant jargon and well-known names. These would include national political, religious, or business leaders, and other celebrities, past, present, and fictional. (24) In a local community, one must generally have at least some knowledge of prominent local personalities, including past and present leaders and sports stars, and places. (25) Famous works of art, (26) film and TV scenes, and both jingles and phrases from famous music would also be relevant.

In addition to knowing the names of people, places, books, etc., just noted, it is also important to know the key details of the stories associated with them. This includes a significant amount of history, gossip, and plot summaries of old films, books, and television shows. (27) It would also include knowing the words that go with song titles, nursery rhymes, fairy tales, and hymns and gospel songs. In some communities, knowledge of at least the most significant Bible stories is quite important, while in others, familiarity with classics, like Shakespeare, and ancient classics, like the Iliad and Odyssey may be equally useful. (28) The issue of what basic knowledge of this type a "well-educated" person should have lies at the heart of the debate within top liberal arts colleges concerning graduation requirements. (29) Two particular categories of vocabulary and stories appear particularly relevant to the effect of a Daily Me: 1) recent developments and 2) messages fostering a national or community identity. A third type--social and political issues--is discussed in more detail in part II.B below.

1. Recent developments.

Because casual conversations often turn quickly to the latest news, most citizens try to stay aware of the most important recent developments in the world, nation, and their local communities. (30) This would include the latest political and economic news and gossip, the latest results of sporting events, and at least some of the stories from current television shows and movies, as well as news about music and celebrity gossip. This might also include the identity of the hottest restaurants, shoes, sales, diets, eligible singles, and "popular" people, as well as the cool parties and clubs. Most significantly, it would also include knowledge of upcoming or ongoing events, including dinner, cocktail, block, and fundraising parties, art, film, and theater openings, and ongoing shows and performances. Given the value of this information to someone desiring to mix well with others (31) and comprehend the jokes in the monologues of late-night comedians, (32) citizens programming their Daily Mes would likely set it to provide this information.

2. National identity.

Common experiences are also important in fostering a sense of national or local community identity, and helping to protect a democracy against fragmentation. Of course, many experiences exist outside the media, but to the extent that daily media play a part, it is useful to examine these experiences in some detail.

Probably the most significant bonding experiences are wars fought proudly to defend American freedoms and values, (33) where citizens lose friends and loved ones or suffer other losses and unite against a common enemy. (34) Communities are also unified by other shared national tragedies, like the September 11, 2001 terrorist attack destroying the World Trade Center Towers, a presidential assassination, or the Challenger disaster. Individuals would be expected to program Daily Me filters to include such critical news when it is fresh as well as subsequent commemorations of such events. (35) Some might screen out news about other unifying activities, such as competitions--sports and other--that pit the United States or local communities against others. Still, almost all are likely to program filters to include news about Americans achieving heroic victories-- in the Olympics, the World Cup, (36) by winning a Nobel Prize, or by becoming the first human to walk on the moon. (37)

Events related to important or popular intranational competitions that may unify the nation are also unlikely to be filtered by many Daily Mes, although many citizens may prefer to know little more than a headline summary or sound bite about them. These include results from Election Day and the Inauguration, as well as the preceding national political conventions and debates. Although the Super Bowl may gain higher audience ratings and be as uniquely American as the World Series, baseball has long been recognized as the American Pastime by authors, and even scholars of the classics. (38) Other events are likely to be of sufficient human interest, due to their potential historical significance that media editors are likely to ensure that no filters completely block them out. These would include events like Woodstock (39) and the Washington D.C. civil rights rally highlighted by Martin Luther King's "I Have a Dream" speech or the experiences of the freedom riders who sought to register blacks in the South in the 1960s. (40)

Another set of unifying experiences captures the myths and values that comprise the conceptual essence of the nation. (41) These, such as images of the American farm (42) and the rags-to-riches American dream, (43) are more likely to be presented in films and literature than by daily news media. (44) Still, there are exceptions. For example, a claim that the estate tax harms "family farmers" is still an effective tool for generating opposition to that tax, even if the claim is a myth. (45) Other important community unifiers are icons designed to promote patriotism, including the American flag (which many citizens appear to value even more than the fundamental values for which it stands), (46) national monuments, and cemeteries. There are also national songs, like "The Star Spangled Banner" and "America the Beautiful," (47) as well as the pledge of allegiance to the flag, and lines from famous speeches, known by many, if not all citizens. American foods, like apple pie, turkey, and burgers also provide a unifying influence. Yet none of these are experiences for which Daily Me filters are likely to be relevant.

Rather, citizens would be expected to learn about the latter, as well as American heroes and other icons, in classes on American history. The Supreme Court has recognized that society relies on public schools to provide tomorrow's leaders with the "fundamental values necessary to the maintenance of a democratic political system." (48) That is, the public educator nurtures students' social and moral development by transmitting to them an official dogma of "community values." (49) Nations are often very sensitive about what they include in school textbooks. (50) The U.S. Immigration and Naturalization Service (INS) uses a citizenship test to insure that those seeking citizenship who may not have learned such history in American schools study it on their own. (51) These are not likely to be particularly relevant for Daily Me filters, unless there is some special community effort to study some issue, such as the recent emergence of certain cities' efforts to encourage all residents to read the same book. (52)

B. Social and Political Options

For a democracy to function effectively, a sufficient number of citizens must be adequately aware of the critical issues of social, political, and economic policy that the government may want to address. (53) A more precise description of the information to which citizens should have easy access was offered by the Federal Communications Commission in the "fairness doctrine," which it imposed on all broadcasters:

   [S]tripped to its barest essentials, the fairness doctrine involves a
   two-fold duty: (1) the broadcaster must devote a reasonable percentage of
   [its] broadcast time to the coverage of public issues; and (2) his coverage
   of these issues must be fair in the sense that it provides an opportunity
   for the presentation of contrasting points of view. (54)

Although both broadcasters and First Amendment scholars strongly criticized the doctrine, (55) their attack was on the means of achieving the goal--government second-guessing and micromanaging editorial decisions--rather than the goal itself. As the D.C. Circuit Court of Appeals observed in 1989 in upholding the FCC's repeal of the doctrine, "There is no real dispute that fostering fair, balanced and diverse coverage of controversial issues is a good thing." (56) Moreover, that goal appears to be an ideal for all news media. (57) In its 1974 Fairness Report, the Commission elaborated further on how to identify a "controversial issue of public importance":

   [T]he degree of media coverage is one factor which clearly should be taken
   into account in determining an issue's importance. It is also appropriate
   to consider the degree of attention the issue has received from government
   officials and other community leaders. The principal test of public
   importance, however, is not the extent of media or governmental attention,
   but rather a subjective evaluation of the impact that the issue is likely
   to have on the community at large. If the issue involves a social or
   political choice, the licensee might well ask himself whether the outcome
   of that choice will have a significant impact on society or its
   institutions. (58)

Sunstein characterized the most important and relevant categories of content in similar terms in a 1993 article. (59) He praises the fairness doctrine for providing the kind of balanced views on important issues that a deliberative democracy requires and questions whether its repeal has produced a net benefit. (60) As discussed below, in part III.D.1, it appears likely that open-minded citizens will program their Daily Mes to provide them with this background, and even close-minded citizens may seek minimal awareness of the views against which they may have to defend themselves.

C. Serendipity Is Not Important

In its opening chapter, Republic.com states that "[a] large part of my aim is to explore what makes for a well-functioning system of freedom of expression.... First, people should be exposed to materials that they would not have chosen in advance. Unplanned, unanticipated encounters are central to democracy itself." (61)

Sunstein blames the Internet for "producing a substantial decrease in unanticipated, unchosen interactions with others," (62) adopting a position consistent with the Supreme Court's dictum that "[u]sers seldom encounter content `by accident.'" (63) Shapiro's book also cautions against the loss of the subtle pleasure of serendipitous encounters. (64)

On deeper review, however, these authors' concern that citizens not lose touch with unplanned, unexpected messages appears to represent not so much a concern about surprises, per se, but rather, fear that the average citizen will not voluntarily seek out the two types of messages just discussed. They appear to assume that, lacking the curiosity of ideal liberal arts students or a preference for the unexpected, (65) average citizens will fail to gain contact with news about public policy issues and the news needed to provide common experiences, absent unplanned or unexpected exposures. The analysis in Part III, below, challenges that assumption.

Furthermore, claims that the Internet diminishes exposure to unplanned and unexpected messages (66) seem about as soft as assertions purporting to find that the Internet diminishes social relationships. (67) This is not to challenge the fact that time spent on the Internet almost necessarily diminishes the time one spends in other activities, such as walking through public forums and thus being exposed to unexpected and unsolicited messages. Yet studies that stop their analysis there ignore the activities that users engage in while they use the Internet. (68) These may well more than compensate for any losses from the time lost for other activities. (69)

This certainly appears to be the case with respect to access to unexpected and unplanned messages. For example, junk e-mail or spam is an increasingly significant source of unwanted, unsolicited messages. Similarly, those surfing the web are bombarded with banner and other web page ads, and those participating in chat rooms and many other unmoderated, online discussion forums are exposed to unexpected and unplanned comments from other participants. Meanwhile, the phenomenon of surfing the web, like the channel surfing that arose as cable television systems offered greater numbers of channels, represents a kind of browsing and exposure to unknown materials that certainly resembles a visit to a public forum. Not only do search engines often yield unexpected and unintended messages, but those seeking to disseminate such messages may take advantage of the software's loopholes. (70)

III. HOW AND WHY FILTERS ARE USED

A. The Need for Editors, Filters, and Moderators

As Sunstein acknowledges, "[f]iltering is inevitable, a fact of life. It is as old as humanity itself.... Filtering, often in the form of narrowing, is inevitable to avoid overload, to impose some order on an overwhelming number of sources of information." (71) Human brains cannot effectively process all of the information that the five senses deliver. Therefore, evolution has led human brains to filter out significant amounts of that information (72)--sometimes to a person's great detriment. (73) The key constraint on life is time or its corollary: speed. (74) Even used bookstores recognize the need to exclude "junk." (75) And the need for such editorial filtering appears greater in cyberspace than anywhere else, (76) as manifest in Jorge Luis Borges's 1941 short story "The Library of Babel," (77) and as noted by Glen Robinson:

   Already the world of cyberspace has become so clogged with information
   that, as Esther Dyson puts it, "the new wave is not value-added; it's
   garbage-subtracted." The "garbage" to which Dyson referred is not
   indecency, but merely content of low value.... [I]ncreasingly it will be
   necessary to rely on third persons (or, what amounts to the same thing,
   software programs) to serve as information-selection agents for us. (78)

Moreover, as three Stanford University researchers observe: "Selectivity would seem especially important in the domain of political campaigns." (79)

Most of the information that people would generally choose to filter out appears to fall into one of three categories: expressions completely lacking meaning or relevance, upsetting material, and relatively less interesting content.

The first category can be called noise and would include unintelligible languages or formats; overheard conversations about meals, meeting times, or the weather; and junk mail, spam, and unwanted telemarketing calls that are of no interest to the listener. The second category-upsetting information--would include material intended to inflict emotional harm (by harassing or causing embarrassment) and to serve personal, rather than public goals. This category also encompasses distressing messages intended to provoke change and which therefore may hold long-term redeeming value. The third category would include material of some value, but whose value is insufficient to justify the time it would take to consume it. Parts B, C, and D, below, discuss the use of filters for these types of content.

Sunstein's central concern about customized filters, however, appears to derive from a pessimism, if not a confusion, about what information citizens want to receive. He states that "people often know, or think they know, what they like and dislike," (80) but he also reports:

   In some cases, you might be irritated by seeing an editorial from your
   least favorite writer. You might wish that the editorial weren't there. But
   despite yourself, your curiosity might be piqued, and you might read it.
   Perhaps this isn't a lot of fun. But it might prompt you to reassess your
   own view and even revise it. At the very least, you will have learned what
   many of your fellow citizens think and why they think it. (81)

Now there is no contradiction in wishing that some article had never been written or published and at the same time wishing to read it if it has been published. Sunstein, however, expresses a concern that someone using a Daily Me would intentionally choose to block access to this article, but once exposed to the article, would prefer to read it even if it isn't a fun read. These positions are somewhat contradictory. If one found it was sometimes valuable to read some particular type of article, depending on the headline, byline, or one's mood, then, presumably, one would set one's Daily Me to list the headlines for articles of that type, rather than completely excluding all such articles. Thus, the Daily Me would not cause the harm that Sunstein fears. A perfect filter would only block out material that one would not even want to waste time considering by scanning a list of headlines/bylines. Citizens could, and likely would, choose filters that included headlines and bylines that trusted editors believed were worth skimming rather than filters limited to only specific topics of interest.

An analogy to restaurants might clarify the issue. Suppose one had a choice between two restaurants, both managed by a chef intimately familiar with one's food preferences. The first provided Daily Meals that included only foods for which one had expressly indicated a preference. The second, however, would serve smaller portions of those favorites, but compensate by also serving unexpected dishes. Although on initial viewing some of the latter occasionally proved disappointing, even unappetizing, these surprises often proved to be the highlight of the meal. Even when the unexpected dishes were not as appetizing as one's favorites, one frequently valued them for the exposure they provided to offerings that others were talking about or for breaking the routine. Presumably, most consumers would choose the Daily Meals from the second restaurant, and thus eateries of the latter type would predominate.

Sunstein appears to assume, however, that when people customize their Daily Mes they are likely to act with less understanding of their long-term interests than they do when making ad hoc decisions about what to read on a daily basis. Certainly individuals often act based more on short-term than long-term gratification, probably more so as consumers than citizens. Furthermore, the tension he reports between an individual's roles as consumer and citizen (82) is real. Still, he also states, "social and cultural norms often incline people to express aspirational or altruistic goals more often in political behavior than in markets." (83) The best example of people's ability to take proactive steps to protect their long-term goals against short-term irrationality may be their adoption of a constitution, rather than simply being governed by laws. Constitutional democracy is premised on the belief that a constitution, formulated during a period of mature reflection, can protect a democracy against moments of passionate irrationality, by delaying any changes sufficiently long to permit such passions to cool. (84) It is unclear why Sunstein treats Daily Mes as market rather than political tools, and why, if he questions the ability to citizens to design them maturely and effectively, he does not advocate that schools and other institutions help citizens program filters more maturely.

In fact, one should expect that a Daily Me will facilitate customization to aid even those citizens too busy or lazy to explicitly design a filter. First, the Daily Me provider might offer a set of a dozen basic templates based on known "brands" of magazines as default choices open to further customization. (85) Second, the provider might offer to customize a filter based on which stories a customer has viewed, the way a secretary may learn a boss's tastes over time. (86) Those choices would indicate whether one preferred to search for all perspectives on an issue or only the most popular two or three. It would be important, however, that the mechanism make it easy to correct any inaccurately drawn inferences. Otherwise, it would operate like some of the editing assistance macros on Microsoft Word 97, which override the choices that the writer wishes to make.

B. Filtering Out Irrelevant and Uninteresting Content, i.e., "Noise"

Sunstein and Shapiro both emphasize the value of citizen exposure to unfiltered and, one might say, "noisy" environments. As discussed in Part IV. B below, such forums continue to serve an important role, particularly with respect to close-minded citizens. Still, Sunstein and Shapiro both recognize that even the most open-minded individuals generally want an editor or moderator to provide them with a news summary free of irrelevant noise.

In fact, by providing citizens with a comfortable way to survey the most valuable tidbits quickly and effectively, the use of quality filters may actually increase the likelihood of citizen exposure to the occasional valuable insights available in noisy media. Denied the aid of effective filters, citizens may find noisy forums overwhelming and may thus avoid them. Filters for excluding noise vary depending on whether they define noise based on topic, quality, or both, and whether they are based on the judgments of third party experts, other consumers, or the author.

Secretaries or administrative assistants typically help employers filter out noise, including junk mail and unwanted phone calls. Without that assistance, many people would not have the time to sort through their mail to find valued letters. Junk e-mail (spam) is commonly an even greater distraction. (87) It leads many Internet users to abandon e-mail boxes, even at the cost of losing some valued messages. (88)

Editors and other selection assistants also help individuals avoid noise by evaluating messages and labeling or organizing them so that individuals can focus solely on the categories of messages they desire. (89) Such organizational schemes include the layout of newspapers into subject-based sections or subsections accompanied by a table of contents. Libraries use the Dewey Decimal system or the Library of Congress catalog categories to organize their materials; Westlaw uses its "keynote" categories to organize sections of judicial decisions; and economists use Journal of Economic Literature (JEL) codes. Absent these tools for separating wheat from chaff, many researchers would find comprehensive searches too overwhelming to even attempt, and many would rely solely on their limited circle of colleagues, missing many new and important materials. (90) Thus, tools that enable one to avoid unwanted noise may actually increase consumer exposure to interesting messages. Even librarians recognize the value of "weeding" their shelves of materials that have lost their relevance. (91)

Excessive noise is often a problem for unmoderated online discussion forums. (92) discouraging many from sifting through them for insightful comments. To address this phenomenon without losing its "no paternalistic editor" status, Slashdot.org employs a filtering system based on the judgment of other participants. (93) Readers are asked to rate the quality of comments on a one-to-five scale and, by choosing a "noise threshold," they can filter out messages whose average rating is below that level. Similarly, Quorum.org asks readers to give a thumbs up or thumbs down to postings, and those reactions determine the placement of a comment. (94) Such rating systems resemble the model of debate in ancient Sparta called the Shout, where the winner was the candidate who received the most applause or loudest shouts. (95) More sophisticated systems on other websites also permit users to filter based on the reputation of the raters. (96) Software, like pnyxUnchat, developed by bodieselectric.com, allows users to set their own parameters. (97)

Now that the Internet permits scholars of all quality to post their preliminary and final drafts online, the leaders of many fields are struggling with the question of how to make them more accessible and useful to the community of scholars. (98) While the National Institutes of Health could maintain a webspace for all researchers to post their materials, few would be likely to have the time to browse it for new ideas if lower quality (noisy) work dominated the site and made it difficult to identify the best material. Hence, a proposal for "e-biomed" included a provision to require those seeking to post papers to obtain recommendations from either an editorial board of a recognized journal or approval by two individuals with appropriate credentials. (99) Other proposals in the legal field have suggested that an article simply include a searchable label with the respected individuals who would recommend it, thereby enabling potential readers to avoid most of the material that might be too noisy for them to trudge through. (100)

Sunstein might believe that society should adjust its values to devote more time to random forays through noisy environments. (101) Yet, if this was his point, he should have explained what specifically would be lost and why it would deserve to displace whatever activity on which citizens now prefer to spend their time. In fact, many selection assistants, including reporters, anthropologists, and individuals who contact the media, watch for the kind of unplanned and unexpected stories that Sunstein seems to value and which are disseminated through the media. (102)

C. Filtering Out Upsetting, Threatening and Antagonistic Content

Sunstein is concerned that Daily Mes will censor upsetting and antagonistic viewpoints, despite their long-term value to democracy, society, and individual citizens. (103) Yet a further review of the issue suggests that Daily Me filters may actually lead open-minded citizens to enjoy greater, not less, exposure to such challenging messages, even if close-minded citizens do not. With respect to the latter category of citizen, it is important to note that a Daily Me should not significantly aggravate their close-mindedness. (104) Citizens that are close-minded about an issue desire messages that provide comfort and support for their position; they are not really seeking additional news about an issue. They will, presumably, ignore all challenges to their position, although they will still be exposed to unpopular unsolicited messages in the unfiltered forums discussed in Part IV, below.

Sunstein states that "society's general interest intermediaries--newspapers, magazines, television broadcasters--can be understood as public forums of an especially important sort," (105) and, to one extent, this is certainly true. (106) By including a broad coverage of differing viewpoints, (107) general interest intermediaries generally seek to maximize the quantity and quality of the audiences they serve, and may occasionally serve the public more effectively than competitive firms. (108)

Yet advertising-supported media face strong financial pressures to filter out material that might offend sensitive groups and lead to protests or other harmful publicity, or anything inconsistent with putting their audience in a buying mood. (109) Advertisers are generally unwilling to associate their brands with even potential controversy, even if the relevant material is recognized as being of award-winning quality. (110) Although most examples of such self-censorship arise with respect to entertainment shows, (111) even The News Hour with Jim Lehrer has been accused of avoiding topics to appease sponsors. (112) Paternalistic motives and the desire to maintain local civility lead some publishers to exclude some controversial messages. (113) With notable exceptions, such as the 1970s Norman Lear television sitcom All in the Family, the general media are typically not hospitable to material that is sexist, racist, or sacrilegious. (114) The press is also inclined to make editorial decisions based on its own self-interest. (115)

Daily Me filtering permits subscribers to set even lower levels of tolerance for offensive and challenging material by filtering out content that the general media would have exposed them to for at least an instant before they looked away. Yet individuals who set such filtering thresholds are likely to be close-minded to opposing viewpoints and/or in denial about them and thus, prior to Daily Me filters, would quickly have averted their eyes when exposed to them. Meanwhile, Daily Me filters seem likely to also have a positive effect. That is, to the extent that producers filter out high quality material for fear of inciting a protest from some ethnic or religious group, Daily Me filters may enable them to provide such material to subscribers who indicate a willingness to consider more edgy subject matter. Moreover, once such content is spread, those subscribers who receive it would be free to pass it on to others in deliberative media, such as those noted below.

Content that is designed simply to express anger and injury to a target and that is not deemed to have any redeeming value is likely to be screened out by both traditional editors and Daily Me filters. Similarly, both are likely to screen out clearly offensive language designed to generate controversy and attract attention unless it is deemed politically important. (116) The key point, discussed in more detail in Part III.D.1 below, is that citizens are likely to desire access to even offensive and upsetting material, if the editors they trust deem it worthy of attention. In fact, the use of Daily Me filters may lead individuals to gain greater access to the type of opinionated material that appeared in the media at the time of the passage of the First Amendment, but which is considered too partisan and politically incorrect to satisfy today's general media. Certainly one cannot argue that such a partisan environment was not contemplated by those who adopted the First Amendment. (117)

Sunstein also ignores that, when allocating their scarce media resources--space and time--even general media often tilt coverage and tend to neglect the views of the interest groups they oppose. (118) This is why many supporters of free speech asked the Supreme Court to uphold a private right of access to the media in Miami Herald Publishing Co. v. Tornillo. (119) Although that decision struck down a statutory right-of-reply that applied to newspapers, most of the Court's opinion was devoted to a sympathetic review of the dangers of the increasingly oligopolistic general media. (120)

After observing that at the time the First Amendment was ratified in 1791, "[a] true marketplace of ideas existed in which there was relatively easy access to the channels of communications," (121) the Court described the industry structure that technology, circa 1974, had wrought:

   Newspapers have become big business and there are far fewer of them to
   serve a larger literate population.... [O]ne-newspaper towns are the
   dominant features of a press that has become noncompetitive and enormously
   powerful and influential in its capacity to manipulate popular opinion and
   change the course of events....

      The result of these vast changes has been to place in a few hands the
   power to inform the American people and shape public opinion.... [T]here
   tends to be a homogeneity of editorial opinion, commentary, and
   interpretive analysis.... [I]t is claimed [that] public has lost any
   ability to respond or to contribute in a meaningful way to the debate on
   issues....

      ... The First Amendment interest of the public in being informed is said
   to be in peril because the `marketplace of ideas' is today a monopoly
   controlled by the owners of the market. (122)

Now that the Internet has helped to dramatically diminish entry barriers and much of the homogeneity of the still concentrated mass media, (123) Sunstein's preference for monopoly over a "marketplace of ideas" is discomforting, to say the least.

One might defend Sunstein's preference for general media based on a belief that they are economically necessary to finance "civic" or "public" journalism, (124) where the press is expected to "self-consciously intervene in public affairs--not on behalf of particular viewpoints, but on behalf of invigorating public involvement." (125) Moreover, rather than threatening the economic viability of a general media source, the ability of that single source to use a Daily Me to provide customized content to readers of all views probably fortifies that source's economic position. By enabling the general media owner to present opposing partisan content packages, simultaneously, a Daily Me makes it more difficult for new partisan media firms to win over partisan readers. Thus, a Daily Me would seem to foster, rather than threaten, public journalism.

Many of Sunstein's and Shapiro's protests against perfect filters also complain that they will displace the vibrant and raucous atmosphere of public forums, and yet, as discussed below, in Part IV, they offer little reason to believe this. Similarly, it is unclear what, if any, effect a Daily Me would have on the current partisan conservative and liberal talk-radio shows, which are easily accessible--even to citizens without Internet access. (126) Presumably, those who enjoy one or more of them would continue to do so and those who find them upsetting would avoid them. (127)

Daily Me filters may also be used by parents to filter what television shows their children may see in a more sophisticated manner than provided by the V-chip. Given that Daily Me filters are more sensitive, and conducive to flexible standards, they would likely grant children greater access to redeeming material. To the extent they are applied more widely than simply to the news, they could also lead to increased production of "edutaining" content. (128)

D. Filtering Out Less-Relevant and Less-Interesting Content

Sunstein is also concerned that the Daily Me will lead citizens to miss important information because it will screen out all material except that which fits into one of the few specific categories they have chosen to consider. He fears that "tens of millions of people [may choose mainly to listen to] louder echoes of their own voices." (129) He worries that the Daily Me will not force citizens to browse through the broader variety of news presented by the general interest media of today. Shapiro complains that those using a Daily Me, motivated by selection avoidance, would be inclined to use that tool to narrow their horizons. (130) On careful analysis, this appears to translate into two distinct, albeit related, concerns. First, there is the possibility that without the general media forcing them to wade through unsolicited materials, citizens will simply avoid them. Second, there is the fear that if citizens are able to draw from deep reservoirs of material about one or a few narrow topics of particular interest, they will have little, if any, time left to sample material in other areas.

1. People's demand for breadth.

Sunstein's fear that Daily Me filters will diminish citizen access to the two types of important news, discussed in Part II above, ignores an apparently strong citizen demand for such general news presentations, for at least four purposes. Not only do adults want to avoid appearing ignorant when they mix with others at parties, but most are at least curious to discover new things. All also have strong interests in making wise decisions in their purchases as well as during elections. In addition, many have at least some intellectual curiosity.

Vocabulary for mixing with others. One reason why citizens are likely to program their Daily Me filters to provide at least a short overview of the latest news is to prepare them to converse with others without embarrassment. (131) Certainly no one wants to appear ignorant in a casual conversation about a current event at a party, after religious services, or between innings at a child's baseball game, and most would likely want to be prepared to defend themselves against challenges to their political positions on current issues. Many also like to understand all the jokes made in political cartoons, the monologues of comedians, and the answers to clues in television shows like Who Wants To Be a Millionaire? and crossword puzzles.

Daily Me filters will be able to provide citizens with the top news stories of the day. In fact, to aid those most concerned about the most popular "solidarity goods," many online newspapers have begun to keep track of how many times their stories have been e-mailed to others and to permit consumers to identify and retrieve such "most popular" stories. Thus, the Daily Me is likely to increase citizen access to the common vocabulary needed to communicate easily with others of different social classes or political or social affiliations.

The Daily Me may also help citizens discover stories that may be helpful to their families and friends. Sunstein notes that "[p]erhaps you would not ordinarily seek out material about new asthma treatments for children; but once you learn a little bit about them, you might tell your friends whose children have asthma." (132) He worries that perfect filtering will likely diminish such sharing; yet, the opposite effect seems more likely. With a Daily Me "news headline" option of receiving one-sentence summaries of major articles, one who saw such a story and believed it to be of potentially great interest to others could quickly and easily e-mail it to everyone on a list of people with that interest. Furthermore, the Daily Me could note one's interest in particular topics (whether for a friend, family member, or boss) even if one did not list them explicitly, and automatically flag future related articles. (133) This would enable one to strengthen multiple relationships by becoming an appreciated source for such news. Similarly, one could use the Daily Me to help motivate one to contact friends in other cities or industries by designing it to flag stories useful as icebreakers to e-mail a friend (134) or for other uses during that day.

Daily Mes could also make their news overviews more enticing by offering a choice among hundreds of versions, ranging from a standard front-page layout, to a column like the national news summary of the Wall Street Journal. They might also offer the thirty-to-sixty-second audio introductions that television and radio networks use to introduce hourly news broadcasts, full five- or ten-minute radio news broadcasts, thirty-minute network television shows, or The News Hour with Jim Lehrer. Furthermore, Daily Mes could offer multiple versions of stories, based on the subscriber's background on a topic, and stylistic preferences, such as for sports metaphors. (135)

Daily Mes could also offer plot summaries of television shows from the previous night that colleagues talk about and that one often misses. (136) One might also be permitted to choose between two versions of film reviews: one that revealed the plot while analyzing the film and one designed to help one decide whether to view the film without revealing key plot twists.

   Desire for variety and something new. Sunstein recognizes:

   Many people like surprises....

   [And] are also prepared to develop an interest in topics that they would
   not choose and in fact know nothing about....

   Most of us have a great deal of curiosity, and sometimes we like to see
   materials that challenge us and that do not merely reinforce our existing
   tastes and judgments. (137)

Many shoppers enjoy simply browsing through stores to look for unexpected offerings, just as if they were seeking to expand their horizons at an art gallery or other museum of culture. The fashion industry and car manufacturers continuously change to meet--if not to help encourage--this desire for change and new experiences. Most travelers also appear to value the opportunity for exposure to unexpected and unknown sites and experiences. In fact, news-media marketing research has shown that consumers desire exposure to surprising or interesting stories on unexpected topics, (138) and thus media firms search through the news of the day for serendipitous stories to meet that demand. (139) Many newspapers try to place at least one of those stories on their front page, (140) and television newscasters generally present one of those stories daily during their broadcasts.

One problem with this desire, however, is that it can be difficult to tell which news items a citizen is likely to find of interest. It was this problem that spawned the development of the early "collaborative filtering" systems, (141) about which Sunstein is also concerned. (142) Those systems arose as a more formalized means for individuals who read a particular news article to assist others in determining whether they would like it. That is, collaborative filtering enables a Daily Me filter to include articles that are likely to appeal to a subscriber based on their appeal to other individuals who had the same reactions as the subscriber to previous articles. This should encourage individuals to welcome exposure to material that they might otherwise never have considered. (143) One type of story that is invariably of interest to individuals is one about an unsolved crime or scandal in the area. (144)

Options relevant to a particular decision: a purchase or election. Sunstein observes that people often like to watch commercials for cars that they have already purchased to comfort themselves with the wisdom of their choice. (145) He infers from this that many, if not most, individuals prefer comfort to conflicting viewpoints, but this certainly does not follow. First, a preference for comfort over conflict after one has made a decision does not imply anything about one's preferences prior to making decisions. In fact, before making any important decision, individuals generally want to consider multiple competing options, (146) which is why Consumer Reports, with its comparison charts, is a favorite of educated buyers. (147) Admittedly, consumers may become overwhelmed by too many choices, (148) and many may prefer to avoid the time and effort, not to mention the negative emotions often involved in comparison shopping. (149) Hence, individuals probably prefer to be presented with a small, manageable set of options likely to be best suited to their needs, and most appear to rely on retailers or other selection assistants to provide those choices. (150) Daily Mes, armed with collaborative filtering technologies, however, are likely to dramatically increase the likelihood that consumers will be exposed to content of interest to them. (151)

This would also appear to apply to alternative views on issues of public policy. To the extent that citizens have already formed their opinions on questions of public policy, they probably seek only confirmation and shun contrary views. (152) If their minds were still open, however, they would probably welcome competing views. (153) In the former case, a Daily Me would, presumably, only filter out stories that the citizen would have avoided anyway; it might, however, include material explaining why opposing views are flawed so as to prepare those who might need to defend their views. In the latter case, the Daily Me might help citizens ensure that they are aware of viewpoints that they might otherwise have missed amidst "noisy" environments or might have shunned based on the article's headline or opening sentence. Assuming that a Daily Me earned credibility with a citizen, the citizen would trust it not to include materials that they preferred to exclude, and thus would presume that articles included were worthwhile even for someone with their tastes.

Intellectual curiosity. Sunstein describes a "utopia" where, "[i]f you are interested in politics, you may want to restrict yourself to ... hearing only from people you like.... [or] reading about [a] problem ... [only] from the point of view that you like best." (154) Yet this description is misleading. Someone who is only interested in hearing confirmation of his or her views is not really "interested" in politics in the way that term is normally used. In fact, these individuals would likely ignore opposing viewpoints, even without a Daily Me. Their exposure to such material would likely be limited to those that reached them via channels discussed in Part IV.

In contrast to the way individuals are "interested in politics" in the utopia Sunstein describes, many individuals are intellectually curious and seek to broaden their horizons by analyzing competing viewpoints on an issue. Many students probably welcome exposure to a diverse set of classmates and enjoy listening to debates and having their views and values challenged and critiqued. Many adults also welcome critical guidance from their religious leaders. Most recognize that constructive criticism is important and useful to enabling one to improve one's life. Scholars, in particular, often enjoy considering criticisms of their positions from colleagues and qualified members of the general public. Some attribute the Nobel Prize-quality work of professors at Sunstein's University of Chicago to their particular encouragement of vigorous criticism, which they realize can help them improve their thinking and writing. (155)

Recognizing consumer demand for contrary viewpoints, newspapers have long printed letters to the editor that often criticize the newspaper's editorials and articles. Many also include editorial features by regular or guest columnists who espouse provocative viewpoints, (156) if not perspectives, actually contrary to most readers. (157) In fact, after careful consumer marketing, USA Today designed its editorial page to explore a single issue with an editorial, at least two different expert op-ed pieces, and views from a handful of people from the street. (158) Similarly, many television news departments present discussions among experts on an issue with opposing viewpoints. These include The News Hour with Jim Lehrer and Nightline, while many others, like the McLaughlin Group and Crossfire, offer comparable discussions among journalists with opposing viewpoints.

2. Depth does not preclude breadth, but there is a tradeoff

Sunstein also appears concerned that a Daily Me, by providing greater depth of coverage of an individual's specialized interests, may leave him or her with little if any time to consider anything else, (159) or at least to understand anything else. (160) Yet this neglects to recognize that citizens will almost certainly select a general daily news overview as one of their "specialized" interests, as discussed above. It also ignores the impact of the cross-fertilization that is likely to arise when individuals with different specialized interests mix with each other online or in the many domains beyond the range of the Daily Me. (161) Sunstein's fear of fragmentation echoes the fears expressed by others decades ago, when the cable television industry unleashed the potential for hundreds of specialized cable networks. (162) Furthermore, although the First Amendment's protection of religious freedom has produced bitter fragmentation on many important social issues, it has not undermined the foundation of the United States. (163)

There are now more than two hundred different cable television networks, (164) which have greatly fragmented audiences by category and subcategory, (165) leading viewers with more choices--who had only watched "politics by default"--to watch less news. (166) Similar divisions are produced by the 10,000 specialized magazines and a comparable number of radio stations, including many extremist talk shows, thousands of specialized books, and hundreds of films released annually. (167) If these have not already irreparably fragmented American society, Republic. corn does not explain why quantitatively better Internet filtering would change things.

Meanwhile Sunstein recognizes that there is nothing wrong with narrow specialization if it is supplemented with breadth. (168) Colleges recognize this as well, as evidenced by the fact that most top liberal arts schools require students to focus their studies by declaring a major (specialization), as well as mandating that students take some specific core courses or courses from a variety of different disciplines and that they expose themselves to other students with different majors and perspectives. (169) Even parents of child prodigies generally recognize that an excessive commitment to a sport, music, or other pursuit can damage a child's ability to be happy in the long term even if it may improve his or her short-term chances of success. (170) Scholarly researchers, also recognize the value of frequent, very narrowly targeted searches, and they effectively use such filters when employing research assistants to help track down the materials most relevant to issues about which they are writing. (171)

If Sunstein's concern is that specialization will leave citizens with too little time for staying in touch with other important matters, he could focus on embracing the position advocating that citizens make more time for the latter. Those in this camp complain that people's preference for content comparable to mediocre television is crowding out time for more worthwhile information. Supporters of this view, including Democratic Senator Joe Lieberman and conservative Republican William Bennett call for parents to regulate what their young children watch in order to promote better quality fare (something that filters can provide.) (172) Still, urging adults and broadcasters to avoid such a vast wasteland is clearly a more difficult task, (173) particularly given television's inherently "disinforming" nature. (174) In fact, the public's preference for entertaining, rather than hard news has been recognized by newspaper publishers since at least the 1830s. (175)

Sunstein recognizes that the preferences that people express may be distorted by sensational or other information they have received, (176) but he also notes that "people are often aware of this fact, and make choices so as to promote wider understanding and better formation of their own preferences." (177) They even permit their political preferences to override their consumer choices. (178) In fact, the Internet appears to offer a tool for individuals to improve their consumer selection decisions (179) as well as their electoral choices. (180)

E. Ineffective and Deceptive Filtering

Although Sunstein does not assume that Daily Me filtering would be perfect, it is interesting to note that perfect filtering is theoretically impossible (181) and that filters designed to apply on the fly to the entire Internet are, invariably, seriously flawed. (182) Much of this is due to the rapidly growing and changing nature of web pages. (183) Yet Daily Me filters need not face these flaws, because they only attempt to filter a very finite set of news stories written or purchased by a particular media entity. This makes it quite practical for the editors at the Daily Me to ensure that articles are carefully coded so that they are only included in the editions of subscribers who desire them. To the extent that such coding is badly managed, Daily Me entities will likely suffer the same failures as badly edited offline media entities, while well-edited products will earn credibility and survive, provided that they can find a profitable audience to serve.

Separate and apart from the issue of imperfection is another concern raised by some, that online editors may act deceptively, surreptitiously excluding material with which they disagree. (184) To the extent that such exclusions represent viewpoint discrimination, the use of such filters by public schools or libraries would violate the First Amendment. (185) To the extent that private individuals used such filters and discovered undisclosed exclusions, they would probably stop using the filter, (186) leading filter providers to lose credibility and probably go out of business. Larry Lessig suggests that these firms might be required to disclose what they excluded, but newspapers do not disclose the oped articles and letters-to-the-editor that they do not print. A better response would probably be to teach consumers to demand that filters earn their trust through positive experiences over time and as judged by trustworthy evaluators, such as Consumer Reports or other online raters. (187) One might, however, want the FTC to clarify and enforce disclosures needed to prevent conflicts of interest from producing false or misleading advertising, already prohibited by law. (188)

IV. EXPOSURE TO UNFILTERED CONTENT WILL CONTINUE

All humans must not only use real space for eating and sleeping, but also for many types of communication. 189 Moreover, even individuals who live in very insular communities, such as those established by the Amish and some Hassidic Jews, find it virtually impossible to protect themselves against all unfiltered expressions. The films Witness and A Stranger Among Us illustrate only a few of the circumstances apt to attract outsiders into the community or require the community to seek help from outsiders, e.g., advanced medical help for children. (190) Similarly, the needs or talents of insiders are also apt to lead many to enter the outside world, while maintaining ties to insiders. In the real-space world, biological, psychological, and economic pressures expose both open and close-minded citizens to unfiltered messages in both private personal forums and public forums.

A. Private Personal Forums

1. Sex, love, and companionship.

The human genetic code creates multiple predispositions to contact with others in real space. A biological sexual drive generally leads individuals to seek more than mere cyber-sex and to expose themselves to unfiltered conversations in its pursuit. Furthermore, an evolutionary aversion to incest (harmful to bio-diversity) or simply chance, often leads individuals to fall in love with others from very different political backgrounds a la Romeo and Juliet. Separate and apart from sexual attraction, most humans also seem to be wired with a strong need for physical companionship. (191) While pre-screened cyber-space companions can certainly fill a large role for many individuals, most will also want to attend parties, bars, and family gatherings, where they may be exposed to unfiltered messages.

2. Children.

The natural urge to produce children (192) is also likely to force exposures to unfiltered material. Efforts to home-school children and train them never to utter potentially upsetting expressions (and even "to hate all of the people their relatives hate") (193) are unlikely to keep them from transmitting unfiltered material. Even children prohibited from socializing with other youngsters are likely to discover other fictional playmates in literature, television, and the Internet. Parents may try to completely deny them access to any such "forbidden fruits." This, however, would seem likely to produce rebellious teenagers with psychological needs to assert independence and to intentionally challenge their parents' views. (194)

3. Economics and transit.

The need to earn a living generally requires one to work with others who may have different political views. Similarly, obtaining food, shelter, clothing, and other goods generally requires contact with retailers who may articulate different values. (195) Almost all adults must travel through real-space public forums, like roads, sidewalks, public parks, etc., to get to work, visit friends, go to stores or on vacations, etc. None of these are subject to Daily Me filters, as discussed in Part IV.B below.

4. Relaxation, health, and exercise.

The need to relax with popular culture, including books, films, music, and television can also be strong and hard to resist, and such content is more than likely to include bold and subtle mentions of unwanted messages. Even if Daily Me filters were extended to all media, writers and other creative artists often create the tensions and conflicts comprising the drama people enjoy by introducing characters with conflicting fundamental philosophies. Screening out all material with characters expressing opposing viewpoints would probably exclude a large portion of popular culture, including most stand-up comedians. Keeping healthy also requires exercise. Many enjoy participating in team or other competitive sports, including softball, tennis, golf, bowling, etc. (196) These activities force one to interact with teammates, if not opponents, whose unfiltered views may be challenging. If and when one faces health problems, one may need to visit a doctor's office or hospital, which usually involves unfiltered contact with doctors, nurses, and, typically, other patients.

5. Governance.

Those who seek to participate in government are forced to expose themselves to others with opposing views. Even extremist groups that criticize incumbents from afar are likely to be sought out by the press to participate in panels and to face off against opponents. While individuals certainly can choose to resist such requests, most leaders have a strong desire to defend their views against others. In particular, as groups grow in size and desire to influence governing bodies from local school, PTA, and library boards to local, state, and national legislatures and executive offices, they are forced to interact with opposing viewpoints.

B. Public Forums

Sunstein and Shapiro both complain that the Internet is diminishing the effectiveness of the soapboxes traditionally used by unpopular speakers, particularly "urban sidewalks and street comers, marketplaces and town squares [where unpopular speakers can] shout slogans, wave signs, and hand out leaflets." (197) As Sunstein recognizes, the issue is more about the modern "equivalent of `street comers,' or `commons,' where people are exposed to things quite involuntarily." (198) Still, they are not clear in defining their baseline and explaining why they are blaming the Internet for causing any harm. Certainly the Daily Me would not filter these channels.

Sunstein observes that the "public forum doctrine," recognized by the Supreme Court, "represents one area of law in which the right to free speech demands a public subsidy to speakers." (199) He also understands that public forums warrant protection for three important roles that they play in society:

(1) They "ensure[] that speakers can have access to a wide array of people";

(2) they allow speakers to have access to "specific people and specific institutions with whom they have a complaint"; and

(3) they "increase[] the likelihood that people generally will be exposed to a wide variety of people and views." (200)

Under careful scrutiny, it appears that while the second role continues to retain its original relevance, the other two roles have been significantly altered.

1. Access to specific people and institutions.

The second role Sunstein identifies for public forums is to provide an opportunity to confront one's specific adversaries directly or indirectly. It includes the ability to hold a protest rally in front of a government body (201) or at an international meeting, (202) or to picket a business (203) or an abortion clinic. (204) The Internet would appear to have little effect on this goal. Shapiro voices concern that online stores do not permit shoppers the chance to stand on the sidewalk in front of an actual brick-and-mortar store, but this ignores the comparable, although not identical, variety of opportunities that cyberspace offers. (205)

2. Access to a wide array of people.

It has been decades since citizens received any significant portion of their news directly by visiting public lecture halls, (206) attending live debates, (207) or walking through streets, parks, or other public forums. (208) Just as individuals have shifted their attention from live vaudeville to higher quality mass-mediated entertainment, so too they have learned to rely on those firms' editors to provide them with news. (209) Today, a public forum's role as a mass media channel for speakers is primarily as a location for staging presentations, including protests and rallies, intended to reach mass audiences via conventional mass media. (210) In fact, most organizers of demonstrations probably judge the success of their protests and rallies on how much time and attention they earn on mass media channels. (211) In fact, protesters in foreign lands who do not speak English often parade with posters in English.

The creation of electronic soapboxes in cyberspace for direct communication to citizens appears impractical due to the high opportunity cost faced by audiences searching for attractive material in noisy environments. This is a lesson that can be learned from the disappointing results of optimistic efforts in the 1970s to use cable television channels as electronic soapboxes. (212) With 20/20 hindsight, it now appears that these forums are better recognized as opportunities for individuals or groups to hone their skills and showcase their talents to mass media editors. (213) If they present an important message effectively, the traditional mass media will likely pick it up to give it the wide attention it deserves. (214) The FCC recognizes this in its proposal "to encourage broadcasters to use their websites to conduct discussions with members of the public." (215) While cyberspace does not eliminate the access problem, Sunstein is unclear about why he believes that reaching audiences would become more expensive. (216)

3. Increasing the likelihood of audience attention.

The third role--increasing the likelihood of audience attention--is probably best interpreted as enabling protestors to distract even those who might prefer to ignore them. According to Shapiro, "The American system of freedom of expression includes a kind of unspoken compromise between the unpopular speaker and the reluctant listener ... [in particular] that a speaker will get at least one bite at the apple--one chance to confront passersby and capture their attention before they avert their eyes." (217) Even if Shapiro is correct that "nothing may be more important than a person's ability to temporarily dislodge fellow community members from their worlds of individual control," as by staging protests in their pathways, it seems clear that perfect filters would not upset that situation. (218)

Individuals today can still use public forums to attract the attention of large audiences by causing congestion to traffic or other disruptions, like protests at the World Bank, International Monetary Fund (IMF), and global economic summits. (219) Still, other media have long offered alternative channels for presenting unsolicited messages. These include direct mail and, even more effectively, telemarketing calls--although the latter invades private homes and infringes individual privacy, (220) and has lead to the imposition of government restrictions. (221) The broadcast and cable television media also provide pathways for reaching audiences, but the channels with the largest audiences are apt to prohibit content that is not politically correct (222) while the other channels are likely to reach relatively small audiences.

The Internet now provides its own tools for protesters to make unsolicited entreaties, including the ability to send spam, e-mail bombs, and to engineer denials of service, even without the addition of the cyberspace sidewalks proposed by Noah Zatz. (223) As Sunstein observes, while people seeking access to Time magazine's website would find it intrusive to be bombarded with a page from Citizens for Control of Nuclear Power, this is not very different from reading a newspaper or walking down the street. (224)

Sunstein states that public forums can ensure that "[p]eople will get a glimpse, at least, of the lives of others, as for example through encountering people from different social classes." (225) Yet Peter Breughel, Victor Hugo, and Charles Dickens, among many others, have long made those images pervasive in the media, and Hollywood has only continued that process. To the extent that Sunstein believes that citizens should encounter individuals from different social classes in real space, the Daily Me and the Internet would not appear very relevant.

V. EXTREMIST ENCLAVES AND THE DANGER OF POLARIZATION

Although close-minded citizens with extremist views can generally not avoid exposure to challenging messages in the forums just discussed, Sunstein is perceptive to recognize that filters will facilitate the formation of insulated enclaves of extremists, (226) and that enclave deliberation will aggravate such extremism. (227) Certainly cyberspace enables isolated individuals to overcome geographic constraints that previously deterred many of them from actively participating with extremist hate groups. Not only do such connections nourish their hatreds, but they make it more likely that they will recruit others. (228) Sunstein's fear is that informational and reputational cascades (also known as the bandwagon or mob effect), (229) which he has discussed in more detail in earlier articles, will polarize the nation and threaten democracy. (230)

A. Informational Cascades

Informational cascades arise when a relatively large portion of a population has relatively little direct knowledge about some matter and is willing to defer to the judgments of a few very vocal advocates. (231) Those to whom others defer can gain substantial power, and yet, under many circumstances, deference to experts is a very rational approach to decision making.

Given the limited time courts have to concentrate on important issues, it makes good sense for judges to defer to their own previous decisions or holdings of higher courts, under the doctrine of stare decisis, or to other courts whose reasoning appears sound. (232) Instead of duplicating the exhaustive efforts expended by respected colleagues, it seems reasonable for courts to rely on their colleagues' analyses, absent compelling reasons to disturb them. A similar form of rational deference would appear to be a key premise of representative democracy. Voters are assumed to benefit from deferring to the judgment of representatives able to invest more time and effort studying and deliberating about a matter, even if, at times, such study leads those representatives to reject the majority opinion of their constituents. (233) Deference takes advantage of specialization of resources.

The deference that Sunstein fears occurs when individuals mistakenly presume that those showing the greatest interest and enthusiasm for a position possess relevant special knowledge or expertise. (234) In fact, the intensity of an individual's feeling may have nothing to do with understanding and analysis and everything to do with blind faith or reliance on some religious, political, or other value or agenda. Plantation owners threatened by the abolition of slavery and advocating principles to rally public support in their defense were probably actually more concerned about their financial interests. Christian leaders threatened by the theories of Galileo and Darwin, who urged the public to reject such ideas as immoral, were probably most concerned about the threat to their own authority. Unfortunately, Sunstein somewhat muddles the matter here by characterizing advocates of a position as strongly "convinced" of the position they are taking--implying rational weighing of the options--when they may well be acting primarily out of self-preservation, fear, denial, or plain deceit. Such deference commonly leads individuals to spread misinformation, producing results like the Love Canal panic and the Alar apple scare. (235) In fact, the Internet probably aggravates the spread of misinformation. (236)

Because members of extremist enclaves will face challenges to their views in unfiltered forums, one might presume that the danger of enclave deliberation generally would be only temporary. And yet this ignores another powerful finding of psychology, one that Sunstein does not discuss: the tremendous effect of a first impression, even after one recognizes that it has been blatantly misleading. Once information is processed, it may produce unconscious effects, and no obvious way exists to prevent resulting thoughts from lingering to distort unbiased judgments on a policy issue. (237) For example, in the criminal law, there is no psychological tool that can achieve the Fourth Amendment doctrine for prohibiting the fruits of an illegal search from affecting judgments. Thus, if one's first impression is to think of an issue as one of private "consumer" interest, rather than as a public policy "political" matter, then it may be difficult to relinquish that initial judgment.

B. Reputational Cascades and Anonymity

Sunstein also discusses reputational cascades, explaining that individuals often take public actions and positions so that they may maintain a desired public or self image, one which may well conflict with their actual beliefs. In fact, peer pressure and other social norms are critical to ensuring that people act in a civilized manner. After all, many people may only refrain from voicing their tree views so as to protect their reputations. Although the Internet admittedly shackles all individuals by making their historical behavior more accessible to all--thereby diminishing their ability to "restart" their lives--it is also likely to decrease hypocrisy and enhance the ability of social norms to control deviant behavior. Politicians, in particular, may now be more hesitant to urge positions that might help them in the short term, but for which they would not want to be held accountable in the long run.

When extremists segregate themselves from moderate individuals, the social pressures exerted by the latter evaporate, and the former are generally able to espouse more radical viewpoints. Thus, Sunstein recognizes that enclaves can be quite helpful to new anti-establishment movements, such as those supporting civil rights or sexual equality. (238) In fact, the strongest justification for the maintenance of black and women's colleges is probably to provide a supportive enclave for individuals whose views might otherwise be suppressed in larger heterogeneous groups. Sunstein acknowledges that such supportive enclaves can also be beneficial to the polity. (239)

Yet reputational pressures can be quite dangerous to a democracy when they foster intolerance and the positions of close-minded extremists, such as during the McCarthy hearings and as illustrated by the folk tale "The Emperor's New Clothes." Extremist enclaves can produce this effect by also providing participants with limited pools of information, and a combination of

these informational and reputational effects can frequently lead to polarization and fragmentation. Sunstein offers an explanation of how such extremism can be aggravated. (240) Some of the polarizing effects of extremist enclave deliberation would probably disappear once individuals were forced to interact in more heterogeneous groups. Certainly some reputational pressures would be relieved. Yet both the power of first impression and the tendency of group support to increase an individual's confidence seem to produce more permanent polarizing effects. Given the presumably close-minded attitudes of most extremist groups, it would seem unlikely that they would adopt Sunstein's proposal, as discussed below, for linking to opposing viewpoints. On the other hand, the infiltration, which is also discussed below, might well succeed.

C. The Evidence of Gore v. Bush, the Clinton Impeachment Effort, and Islamic Fundamentalists

In a supplement to his book, entitled "Echoes," Sunstein offers the Clinton impeachment controversy and the Gore v. Bush Florida balloting controversy as examples of polarization. (241) It is not clear, however, how these examples illustrate much about the impact of the Internet. (242) While it is certainly true that Internet news websites enjoyed record levels of traffic during the 36 days after Election Day 2000, so did television broadcast networks like CNN. It seems likely that, rather than seeking deliberative discussions, most of those checking websites were seeking specific factual information about the latest developments in the case or reading stories that were also running (or could have been running) in traditional print publications. There is also the matter of how Sunstein can treat such results as if they arose from fragmented enclaves, when broadcast television ratings suggest the likelihood that most members of the public received their information from two-sided presentations, as well as discussions with others holding different views. Thus, it is unclear how these examples are relevant to Sunstein's thesis.

A better example supportive of Sunstein's thesis appears to be Saudi Arabia's failed attempt to transform American Muslims to the extremist version of Islam, called Wahhabism, despite spending hundreds of millions of dollars in this effort. Although that sect is popular in many nations where its members are segregated from those with differing beliefs, the situation is very different in the U.S. where such isolation is lacking. As noted by one reporter:

   [M]any scholars and American Muslims [say that] the influence of Wahhabism
   has faded because its inflexibility is ill suited to life in the United
   States and to the multiethnic mix of American Muslims. About 30 percent of
   Muslims in this country are African-Americans, 33 percent are of East Asian
   origin, and 25 percent are of Arab decent.

      "Living in America pushes people into the mainstream," said Dr. Zahid
   Bukhari, a fellow at Georgetown University's Center for Muslim-Christian
   Understanding. "Muslims in this country are blending with each other. There
   is more convergence and more acceptance of each other's opinion." (243)

VI. FOSTERING CROSS-FERTILIZATION IN CYBERSPACE

A. Justifying Governmental Intervention

Sunstein hopes that citizens will demand--and private producers provide--a range of initiatives designed to alleviate the problems he has identified. (244) As indicated above, the private sector entertainment and advertising industries are already providing citizens with many of the common experiences they need. Still, Sunstein recognizes that "to the extent [private interests] fail to do so, it is worthwhile to consider public initiatives designed to pick up the slack." (245) In chapters 6 and 7, covering much of the same ground as Lessig's Code, he outlines why it is silly to ask the government to refrain from governing the Interact. (246) He reviews how the government created and nurtured the original Internet (247) and is the obvious candidate to help individuals protect themselves against harms unique to the Internet, e.g., the Love Bug virus. Sunstein lucidly explains why laws carefully designed to foster deliberative democracy, and lacking viewpoint discrimination, would likely be consistent with the First Amendment. (248)

B. Aiding Open-Minded Citizens

1. Linking.

Sunstein's approach. One proposal Sunstein offers for improving deliberation in cyberspace is for websites to make better use of hyperlinks, to enable readers to gain balanced perspectives. (249) He complains that relatively few websites now offer links to opposing views, and even when they do, "it is often [only] to show how dangerous, or dumb, or contemptible the views of the adversary really are." (250) He states that it may be desirable to adopt a rule that websites must carry such links. (251) Although a common carrier-like must-carry rule would appear to be constitutional, (252) requiring a website to carry a link to an opposing viewpoint would likely fail First Amendment scrutiny for two reasons. First, a contingent right of access is inherently more chilling--and thus threatening to free speech--than non-contingent common carrier obligations. Second, enforcing such a contingent rule would require the government to judge whether a site offered a truly opposing viewpoint or simply a slightly different variation of the initial website's position, an editorial judgment that courts are reluctant to make. (253)

Meanwhile, there appear to be much better approaches than a must-carry requirement. Rather than establishing links to opposing viewpoints, as Sunstein did when he responded to complaints from commentators offering links to prominent libertarian and radical feminist law professors on his University of Chicago website, he should have explained his more relevant actions. He should have observed that, as a legal scholar, his books and articles generally include references, i.e., links to (and often sensitive discussions of) opposing views on an issue-by-issue basis. Moreover, the "but see" footnotes used by most legal scholars usually link to specific page numbers of opposing arguments, in contrast to the more general references used in other disciplines. Furthermore, Westlaw, Lexis, and some online journals use hypertext in their footnotes to permit direct links to many of the materials referenced. (254)

The burdens that traditional newspapers and magazines have long borne to somewhat balance their news stories and editorials with letters-to-the-editor pages are dramatically smaller for online publishers (and others). (255) Thus, the Princeton University Press was able to follow a model used by many other publications (256) by hosting a discussion of Republic.com on its website, albeit for only a week. (257) That forum provided a tremendous opportunity for readers to consider views opposing Sunstein and to correspond with him directly. (258) Following this example, scholars could treat each of their major articles as a forum for a discussion on that issue, and websites advocating positions on political issues could allocate space for similar discussions. It is unclear why Sunstein did not mention this as something worthy of emulation.

Other approaches. Authors or site operators desiring to foster discussion could either edit such spaces themselves or seek credibility by employing some trusted editor/auditor. In fact, websites lacking either the resources or interest to manage such discussions, but that sought to present themselves as open-minded, could link to a willing and reputable specialized discussion site. Those sites could offer to post all relevant comments, editing out only noise and messages that were potentially libelous or otherwise illegal. University professors or student organizations would appear particularly wellsuited to play this role or to audit website discussions in their fields.

Auditors would operate by verifying that a website had prominently posted its complaint process (including the auditor's e-mail address) and then certify that the website had posted all bona fide comments on its discussion. (259) Auditors would permit sites meeting these standards to display the auditor's certification of "openness." These would function like the seals used to demonstrate that websites meet acceptable privacy guidelines, (260) and students and other open-minded researchers could be taught to look for seals of "openness" as a mark of credibility.

Librarians could also use links to promote deliberation by patrons about public policy issues. (261) Many already create their own "recommendation pages" for particular topics, and some already list online discussion forums on their chosen topic, with notes reviewing the forums as if they were books. Ideally, more would do so, and the reviews would note the quality of any moderator, the general background of participants (experts v. novices), their political perspective, etc. Ideally, the pages would also include an e-mail address to enable patrons to make suggestions or ask specific questions. Librarians nationwide could then pool those resources by identifying their sites to the Library of Congress's (LOC) Collaborative Digital Reference Service (CDRS). (262) They could send a short message with three pieces of data: the catalog number that would apply to their page if it were a book, their topic, and the URL of their recommendation page. The CDRS would then arrange the topic names/URL links of all bona fide submissions on a virtual online shelf according to catalog number, enabling library patrons throughout the nation to find discussion forums recommended by librarians.

Another idea for using the Internet to link different viewpoints would use the pen pal model. Colleges and universities that currently recognize the value of diverse student bodies could go one step further to stimulate students to take full advantage of diversity. (263) School admissions offices could ask applicants to demonstrate their willingness and ability to benefit from diversity by maintaining relationships (links)--as through Internet versions of pen pal relationships--with others from different backgrounds and life experiences. Such an incentive would encourage parents, teachers, and schools to promote such linking, and the potential relationships it could foster might well produce new social webs.

2. Adding important content.

Sunstein also suggests that regulators might take advantage of the Internet to impose disclosure requirements (264) that generated "a kind of competition to do more and better," encouraged by public interest groups. (265) He suggests, for example, that broadcasters be "required to disclose, in some detail and on a quarterly basis, all of their public service and public interest activities," (266) believing that such disclosures might shame or inspire them to act better. (267) In fact, this was an actual proposal by the President's Advisory Committee on the Public Interest Obligations of Digital Television Broadcasters, (268) and the FCC tentatively concluded that it should require such a disclosure (269) and posting on the Internet. (270) Posting online data about every farm subsidy payment made since 1996 has helped change U.S. farm policy. (271)

Given Sunstein's focus on unintended consequences of the use of cyberspace, he might also have wanted to consider a potentially harmful consequence of increased disclosure. For example, the ability of pollsters to immediately disclose constituent viewpoints can pressure representatives to favor the most popular positions rather than their own more carefully reasoned views, behavior that threatens a system of representative government. (272) There is also the point that some online information, including polling results, can be dangerously misleading. (273)

Consistent with his approval of programs such as CPB, NEA, and public libraries, as well as the indirect support (of policy-oriented programming) that the fairness doctrine formerly provided, Sunstein favors public subsidies to cyberspace content with the attributes of a public good, where appropriate. (274)

3. Supporting a moderated forum.

Sunstein favors the establishment of websites like deliberativedemocracy.com, ideally by private sector firms. (275) In fact, it would be hard for a government entity to maintain an unmoderated forum, given the possibility that participants could submit defamatory or privacy-invading statements. While the government entity that served as site webmaster, perhaps the local library, might be exempt from liability for such actions, (276) this would not solve the problem of what to do about such postings. Meanwhile, it appears that many local "general" media are already encouraging discussions on their websites. (277)

The only specific third-party proposal to which Sunstein devotes significant attention is James Fishkin's exciting deliberative polling process--in which citizens are polled on issues only after participating in informative and deliberative sessions. (278) As Sunstein explains, that process combats polarization in two ways. It diminishes irrational information cascades by expanding the information pool with broad background presentations and the inclusion of a diverse group of participants. Meanwhile, the diversity of the group virtually eliminates harmful reputational cascades. Sunstein also observes how chat rooms established in this spirit may produce desirable results. (279) Sadly, he does not comment on mechanisms such as Minnesota E-Democracy's discussion list (280) or any of the earlier government-based FreeNets and community networks and other experiments, discussed by Shapiro (281) or others. (282) Fortunately, there appear to be many creative new ways for public journalism to embrace cyberspace. (283)

C. Infiltrating Close-Minded Enclaves

When strong supporters of the First Amendment face examples of extremist hate speech, they generally recommend a "more speech" response, implicitly relying on a paraphrase of Newton's Third Law that every example of hateful speech creates an opportunity for an equally powerful effective response in the form of more speech. Sunstein worries, however, that this approach is inadequate in the context of extremist deliberative enclaves, (284) given that close-minded extremists have no interest in linking to or otherwise encouraging consideration of opposing viewpoints. Yet Sunstein's conclusion may be unnecessarily pessimistic and may overlook an intriguing, albeit somewhat complicated, response: infiltration.

While a citizen's right of privacy allows him or her to avoid exposure to unwanted messages within his or her home, the First Amendment right of speakers generally trumps that right when the communications are outside the home. (285) Enclaves in cyberspace that are open to strangers would fall into this latter category, and thus they would have no right to enforce a general exclusion against those desiring to confront members of the enclave with opposing viewpoints. Thus, those desiring to counter enclave indoctrinations would have a First Amendment right to act as "opposing viewpoint vigilantes." Just as the Internet makes it much easier for extremists to congregate over great distances, it also enables such vigilantes to infiltrate those websites by masquerading as "supporters" and to artfully introduce moderation and opposing viewpoints into the deliberation. Similarly, while Sunstein recognizes that extremist enclaves are especially dangerous because participants lower their guards, listen to, and often adopt viewpoints aired there, infiltrators would enjoy this same advantage. This would aid them in pursuing any of three strategies: promoting moderation as pragmatic compromise, staging dialogues to "accidentally" highlight the flaws in some positions, or using satire to divide and diminish the cohesiveness of groups. (286)

This is not to claim that such infiltration would be easy, and yet a vibrant democracy could strongly encourage this kind of "outreach" to extremists modeled on two other analogous ethics. First, the original "hacker ethic," which has been somewhat smeared by later-generation hackers, encouraged computer experts to enter "secure" computers both for the challenge and to help the parties they raided to find and fix security flaws. Hackers did not do harm except to the extent they believed damage was necessary to gain the attention of the victimized party. (287) Political leaders could encourage a new breed of these "guardian angels" to try to hack extremist websites and pass the secrets of such entry to those desiring to aid the security of American democracy by presenting opposing viewpoints.

Second, such actions should appeal to those subscribing to the religious ethic expressed in the New Testament: "Go where the sinners are" to spread their message. (288) This would seem to justify efforts to enter and attempt to give more balanced information to currently close-minded people. Meanwhile, volunteers would not have to pursue such a mission in an all-inclusive one-year effort, as Mormons are expected to do, (289) but rather, they could make visits to their needy at convenient times. (290)

VII. CONCLUSION

In summary, Republic.com deserves credit for asking important questions concerning the potential impact of the Internet, particularly customized newspapers and extremist enclaves, on deliberative democracy. Although its conclusions appear unnecessarily dark, it should stimulate many others to undertake further analysis of this topic. Hopefully, it will encourage policy analysts to devote their attention to thinking about how both the government and private sector may capitalize on the opportunities that cyberspace provides for enhancing deliberative democracy.

(1.) LAWRENCE LESSIG, CODE AND OTHER LAWS OF CYBERSPACE (1999).

(2.) NEIL POSTMAN, AMUSING OURSELVES TO DEATH vii-viii (1985); see also id. at 155-63. Postman also acknowledges journalist Robert McNeil's observation that "Television is the soma of Aldous Huxley's Brave New World." Id. at 111. Sunstein sees the Daily Me in this role. On the other hand, Republic.com does not echo any of the claims made in JAMES FALLOWS, BREAKING THE NEWS: HOW THE MEDIA UNDERMINE AMERICAN DEMOCRACY (1996) that television's effect on journalists has harmed democracy.

(3.) NICHOLAS NEGROPONTE, BEING DIGITAL 153 (1995). For a history of customized electronic news services, see J.D. Lasica, The Promise of the Daily Me: From My News to Digital Butlers: An In-Depth Look at the Different Flavors of Personalization, U.S. CAL. ANNENBERG ONLINE JOURNALISM REV., Aug. 2, 2001, at http://ojr.usc.edu; J.D. Lasica, The Second Coming of Personalized News, U.S. CAL. ANNENBERG ONLINE JOURNALISM REV., Aug. 2, 2001, at http://ojr.usc.edu.

(4.) Sunstein contrasts the different approaches that Oliver Wendell Holmes and Louis Brandeis took in their dissenting opinions urging greater protection of free speech. CASS SUNSTEIN, REPUBLIC.COM 44-48 (2001).

(5.) Id. at 192.

(6.) See also ANDREW L. SHAPIRO, THE CONTROL REVOLUTION 115-16 (1999). Sunstein also relies on Marshall Van Alstyne & Erik Brynjolfsson, Electronic Communities: Global Village or Cyberbalkans? (MIT Sloan School, Working Paper 96/09/20, 1997), available at http://web.mit.edu/marshall/www/Abstracts.html, but others have also recognized the potential of personalized newspaper services to fragment the audience. See, e.g., C. Edwin Baker, The Media That Citizens Need, 147 U. PA. L. REV. 317, 365-66 (1998); Tom Regan, The New Economics of Journalism, 49 NIEMAN REP. 38 (1995), available at 1995 WL 14987684 (referencing comments by Arthur Sulzberger, publisher of the New York Times, Esther Dyson, internet industry analyst and publisher, and Walter Isaacson, a senior editor of Time magazine); Eugene Volokh, Cheap Speech and What It Will Do, 104 YALE L.J. 1805, 1834-35 (1995); Pat Kane, Let's Not Get Too Wired Up, TIMES (LONDON), Jan. 22, 1995, available at 1995 WL 7642803; Michael McKeon, Fragmenting of the News, WASH. POST, May 11, 1994, at A21; cf. Elihu Katz, And Deliver Us from Segmentation, 546 ANNALS AM. ACAD. POL. & SOC. SCI. 22 (1996).

(7.) MODERN TIMES (Image Entertainment 1936).

(8.) Some claim that typography "destroyed the medieval sense of community and integration." POSTMAN, supra note 2, at 29.

(9.) SHAPIRO, supra note 6.

(10.) P. 203.

(11.) Pp. 167-90.

(12.) Id. at 167.

(13.) Id. at 92-93.

(14.) David Shaw, Digital Age Poses the Riddle of Dividing or Uniting Society, L.A. TIMES, June 15, 1997, at A26.

(15.) Absent mutual interests, Henry David Thoreau's famous remark about the new invented telegraph is apt: "We are in a great haste to construct a magnetic telegraph from Maine to Texas; but Maine and Texas, it may be, have nothing important to communicate." HENRY DAVID THOREAU, WALDEN 36 (Riverside ed. 1960) (1854).

(16.) Pp. 94-96. Sunstein discusses this concept in more depth in Cass R. Sunstein & Edna Ullmann-Margalit, Solidarity Goods, 9 J. POL. PHIL. 129 (2001).

(17.) P. 97. See, e.g., Mike Wise, Nelsons Go Spanning the World for Players, N.Y. TIMES, Apr. 22, 2001, [section] 8, at 6 (noting that, in the mid-1980s, Miami Dolphin head coach Don Shula failed to recognize that Don Johnson, introduced to him as from "Miami Vice," was an actor in the hit TV show, not a police officer).

(18.) One might also want to consider a fourth institution: designers. See William L. Hamilton, With the World Redesigned, What Role for Designers?, N.Y. TIMES, Oct. 25, 2001, at F1 ("IT]he shared experience is, in fact, the most profound resource of any designer.... Designers have to be radical advocates for preservation of this shared experience.... "(quoting John Hockenberry)).

(19.) The difficult issue of how much of a common education to require, as opposed to permitting specialization and exploration into interesting electives is discussed infra Part III.D.2.

(20.) Interestingly, that common experience may be one that neither has experienced directly. For example, although most Americans have never seen an episode of Home Box Office's (HBO's) The Sopranos, the countless references to the show lead many who have not seen it to discuss it with others. E.g. Ted Rall political cartoon, N.Y. TIMES, July 15, 2001, [section] 4, at 16, available at www.rall.com.

(21.) Spoken languages are not the only languages of communication.

(22.) This is the moral of the biblical story of the Tower of Babel. It is also what fuels the hot issue of whether to provide bilingual education. Although language barriers can be overriding, those unable to converse in the dominant community's language may still share common experiences by relying on translated versions of the news and other stories. See, e.g., David W. Chen, All Languages, All the Time, and All Over the Suburban Dial, N.Y. TIMES, July 17, 2001, at B1. Furthermore, even two people who have grown up in the same home may find that gender and family dynamics may frustrate effective conversation. See DEBORAH TANNEN, I ONLY SAY THIS BECAUSE I LOVE YOU: How THE WAY WE TALK CAN MAKE OR BREAK FAMILY RELATIONSHIPS THROUGHOUT OUR LIVES (2001); DEBORAH TANNEN, YOU JUST DON'T UNDERSTAND (1990).

(23.) Thus, most of the Internet is English. Neil Gandal & Carl Shapiro, The Effect of Native Language on Internet Usage 1 (Sept. 2001) (unpublished draft article), available at http://www.arxiv.org/pdf/cs/0109009. English is often used as the common second language when two non-English speaking nations meet, and even for meetings of countrymen. See Barbara Wallraff, What Global Language?, ATLANTIC MONTHLY, Nov. 2000, at 53.

(24.) These would include the infamous, like Timothy McVeigh and Theodore J. Kaczynski, see NEAL GABLER, LIFE THE MOVIE 181-84 (1998); those in advertisements; and also famous places, books, films, and television shows; famous events like "Pearl Harbor" and "Hiroshima;" holidays, such as "Labor Day," and "Father's Day;" and court decisions, like "Roe v. Wade," "the OJ Simpson case," and maybe "Dred Scott," and the "Scopes Monkey Trial."

(25.) These would include the "Old Bowling Alley" or "where the Howard Johnson's used to be." One should also be familiar with a community's icons, such as traffic signs, flags, and corporate logos and famous trademarks, like McDonald's golden arches and the CBS eye, as well as symbols, like a "Pacman," the Red Cross icon, and e-mail emoticons. But see supra note 17.

(26.) See, e.g., Karal Ann Marling, Salve for a Wounded People, N.Y. TIMES, Oct. 14, 2001, [section] 2, at 1 (article inset) ("In crisis, America's popular arts have rallied first. The fine arts come later, voicing a consensus on the meaning of an event."); Bruce Weber, The Expression of Grief and the Power of Art, N.Y. TIMES, Sept. 13, 2001, at E1.

(27.) See GABLER, supra note 24, at 168.

(28.) The famous law professor Job Tyson argued that a lawyer needed to be familiar with the words of Seneca, Cicero, and Plato. See POSTMAN, supra note 2, at 56. Today, such knowledge is only essential for communicating in very specialized scholarly communities.

(29.) At one extreme, St. John's College (Annapolis, MD) has a fixed "great books" curriculum that all students must take, with very few choices for electives. See Ruth M. Bond, St. John's Clings to Classics, N.Y. TIMES, Jan. 10, 1993, [section] 4A, at 18, Emily Eakin, More Ado (Yawn) About Great Books, N.Y. TIMES, Apr. 8, 2001, [section] 4A, at 24. It may seek to replicate nineteenth century-style classical education, supplemented by additional newer materials, but time constraints are quite significant. At the other extreme, in the 1970s, Hampshire College (Amherst, MA) had no specific course requirements at all.

(30.) This is, at least in part, a function of the media. See POSTMAN, supra note 2, at 7-8.

(31.) See infra Part III.D.1.a.

(32.) In fact, many citizens appear to get a significant portion of their local news, at least political news, from comedians. See Rebecca Fairley Raney, Political Laughs for Internet Users, N.Y. TIMES, Dec. 4, 2000, at C4 (discussing survey which found that internet users were much more likely to read political jokes than do political research).

(33.) Robert Putnam found that the shared war experience was the strongest reason why earlier generations are much more active in civic endeavors than younger Americans. ROBERT D. PUTNAM, BOWLING ALONE 267-71(2000); Robert Putnam, A Better Society in a Time of War, N.Y. TIMES, Oct. 19, 2001, at A19; see also Gregory Rodriguez, Melting Pot: Identify Yourself, N.Y. TIMES, Sept. 23, 2001, [section] 4, at 1 ("Historically, war and the crises associated with it have been instrumental in terms of nation-building." (quoting University of Maryland historian Gary Gerstle)).

34. As playwright Melissa James Gibson insightfully observed in her new play, [sic], "[W]hen you share a landlord with people you have, of course, a built-in common enemy, and there's just about nothing more bond-inducing than sharply focused ill will." Bruce Weber, 3 People at an Uncertain Stage Making Their Uncertain Way, N.Y. TIMES, Nov. 20, 2001, at E1 (quoting Gibson's unpublished play [sic]); see also Dean E. Murphy, Two Unlikely Allies Come Together in Fight Against Muslims, N.Y. TIMES, June 2, 2001, at B1. ("Hindus and Jews have discovered that sharing a distant enemy is sufficient basis for friendship."). Shared hatred of a common sports opponent, e.g., the New York Yankees, can also create a friendship. In addition, the bombing of Pearl Harbor may have done more for American unity than any other event of the twentieth century. See LIFE, OUR CALL TO ARMS: THE ATTACK ON PEARL HARBOR (2001). Similarly, Hiroshima may have done more to unite the world against nuclear weapons. See, e.g., Nikolay Palchikoff, The Nuclear August of 1945, N.Y. TIMES, Aug. 6, 2001, at A13; Irma B. Jaffe, Letter to the Editor, N.Y. TIMES, Aug. 7, 2001, at A12.

(35.) Sunstein observes that "[a] shared celebration of a holiday with a clear meaning helps to constitute a nation and to bring diverse citizens together." P. 94.

(36.) At the right time, such competitions can have major effects. Cf. Juan Forero, Soccer Provides a Tonic for Nation's Glum Mood, N.Y. TIMES, July 28, 2001, at A4 (discussing the positive effect the success of the Colombian soccer team at the Copa America soccer tournament has had on residents of the nation). Sunstein recognizes this. P. 94. Local communities often unite around sports teams, whether professional, college, or high school, and although winners are preferred, Red Sox and Chicago Cub fans are strongly united by a form of tragedy. See, e.g., H.G. BISSINGER, FRIDAY NIGHT LIGHTS (1991); Lewis Beale, Watching a Game Rule a Town, N.Y. TIMES, Sept. 16, 2001, [section] 2, at 17 (discussing the film "Go Tigers" about Massillon, Ohio); R.D. Rosen, In the Inner Game, You Really Can Win for Losing, N.Y. TIMES, Aug. 21, 2001, at A17. This unifying role might be why many communities seek out professional teams and agree to subsidize stadiums for rich owners, when studies indicate that the team's financial contribution to the city would not justify the cost. See, e.g., SPORTS, JOBS, AND TAXES: THE ECONOMIC IMPACT OF SPORTS TEAMS AND STADIUMS (Roger G. Noll & Andrew Zimbalist eds., 1997).

(37.) Ever since pictures in 1957 of the Soviet Union's Sputnik spurred the United States to compete for dominance in space, the public has closely followed major American achievements and tragedies in space. Furthermore, NASA appears to have recognized that this media attention required human heroes rather than animals or unmanned systems. See THOMAS WOLFE, THE RIGHT STUFF 126-29, 218-25 (1979).

(38.) See BERNARD MALAMUD, THE NATURAL (1952); Charles Siebert, Baseball's Renaissance Man: Bart Giamatti, N.Y. TIMES, Sept. 4, 1988, [section] 6 (Magazine), at 36.

(39.) See, e.g., Caryn James, Woodstock Just Isn't What It Used to Be, N.Y. TIMES, Aug. 16, 2001, at E1.

(40.) See, e.g., Estate of Martin Luther King, Jr. v. CBS, 194 F.3d 1211 (11th Cir. 1999); MISSISSIPPI BURNING (MGM/United Artists 1988).

(41.) See BENEDICT ANDERSON, IMAGINED COMMUNITIES (rev. ed. 1991); Michael Kimmelman, Flags, Mom and Apple Pie Through Altered Eyes, N.Y. TIMES, Nov. 2, 2001, at E35 ("What [Norman] Rockwell painted was not what America, in its complexity, ever quite looked like. But at his best he captured what many Americans really felt and desired--and many now feel and desire--which is truth on a level deeper than surface appearance.... Rockwell has always been the perfect homely barometer of national self-identity.").

(42.) E.g., THE GRAPES OF WRATH (Twentieth Century Fox 1940) and the nine books and nine seasons of the television show (1974-83) spawned by LAURA INGALLS WILDER, HOUSE ON THE PRAIRIE (1953).

(43.) E.g., HORATIO ALGER, STRUGGLING UPWARD AND OTHER WORKS (1945); THEODORE DREISER, AN AMERICAN TRAGEDY (1946); F. SCOTT FITZGERALD, THE GREAT GATSBY (1925); ALAIN BOUBLIL & CLAUDE-MICHEL SCHONBERG, The American Dream, on MISS SAIGON (Geffen Records 1988).

(44.) Rick Lyman, Bad Guys for Bad Times: Hollywood Struggles to Create Villains for a New Climate, N.Y. TIMES, Oct. 3, 2001, at E1 ("A nation imagines itself in the stories it tells, and in the United States for the last century those stories have come from movies, joined by radio and then television."). The arts often serve to foster community. See Stephen Kinzer, After a Pause, Arts Companies Find Their Role, N.Y. TIMES, Sept. 18, 2001, at E1.

(45.) See David Cay Johnston, Talk of Lost Farms Reflects Muddle of Estate Tax Debate, N.Y. TIMES, Apr. 8, 2001, [section] 1, at 1.

(46.) Many legislators continue to favor prohibitions against damage to privately owned American flags, despite their inconsistency with the fundamental core of First Amendment freedom: to criticize the government. See, e.g., Texas v. Johnson, 491 U.S. 397 (1989).

(47.) See Celestine Bohlen, No. 1 Anthem: `God Bless America,' N.Y. TIMES, Sept. 19, 2001, at E1.

(48.) Ambach v. Norwick, 441 U.S. 68, 77 (1979).

(49.) Bd. of Educ. v. Pico, 457 U.S. 853, 864 (1982).

(50.) See CENSORING HISTORY: CITIZENSHIP AND MEMORY IN JAPAN, GERMANY, AND THE UNITED STATES (Laura Hein & Mark Selden eds., 2000). Given the significance of such textbooks, it is not surprising to see great hate grow between many Palestinians and Israelis. See Lee Hockstader, At Arab, Israeli Schools, Hatred Is Common Bond; Conflict Hardens 8th-Graders' Stereotypes, WASH. POST, Sept. 5, 2001, at A1. Moreover, this raises the question of how the U.S. can consider Saudi Arabia and Jordan to be allies when "Saudi Arabia's textbooks, which are widely distributed to less-wealthy Muslim countries, advise high school students that non-Muslims deserve only contempt. In Jordan and some of Pakistan's thousands of religious schools, children are tutored to regard Jews and Christians as blood enemies of Islam." Susan Sachs, In One Muslim Land, an Effort to Enforce Lessons of Tolerance, N.Y. TIMES, Dec. 16, 2001, [section] 4, at 4; see also Thomas L. Friedman, Drilling for Tolerance, N.Y. TIMES, Oct. 30, 2001, at A17.

(51.) For examples of sample questions, see http://www.ins.usdoj.gov/graphics/services/ natz/natztest.asp.

(52.) Beginning with Seattle in 1998, a number of cities have been conducting "All of [name of city] Reads the Same Book" programs, stimulating discussions among residents and thereby connecting them and increasing social capital. Stephen Kinzer, Quiet Please; Chicago Is Reading. The Same Book at the Same Time., N.Y. TIMES, Aug. 28, 2001, at E1.

(53.) For a discussion of how one's theory of democracy affects what service one expects from the media, see Baker, supra note 6.

(54.) The Handling of Public Issues Under the Fairness Doctrine and the Public Interest Standards of the Communications Act, Fairness Report, 48 F.C.C.2d 1, 1, [paragraph] 15 (1974) [hereinafter Fairness Report]. See also Editorializing by Broadcast Licensees, Report, 13 F.C.C. 1246, 1249 (1949).

(55.) See, e.g., THOMAS G. KRATTENMAKER & LUCAS A. POWE, JR., REGULATING BROADCAST PROGRAMMING 237-75 (1994).

(56.) Syracuse Peace Council v. FCC, 867 F.2d 654, 660 (D.C. Cir. 1989).

(57.) In fact, many have suggested that this duty should also apply, albeit informally, to the print media. This was addressed most significantly in the 1947 Robert M. Hutchins Commission report. COMMISSION ON FREEDOM OF THE PRESS, A FREE AND RESPONSIBLE PRESS (1947) [hereinafter HUTCHINS REPORT]. As it stated, its intent was to study "the role

of agencies of mass communications in the education of the people in public affairs." Id. at vi. It concluded that, substantively, the press should provide "a truthful, comprehensive, and intelligent account of the day's events in a context which gives them meaning; ... the opinions and attitudes of the groups in the society ... the goals and values of the society...." Id. at 20-21. Many believed that the marketplace would supply this if the public wanted it, and if it didn't, due to the existence of substantial positive externalities or public goods, that the government's role was to supplement the private press, as with public broadcasting, rather than to regulate it. See generally Lee C. Bollinger, Why There Should Be an Independent Decennial Commission on the Press, 1993 U. CHI. LEGAL F. 1 (1993).

(58.) Fairness Report, supra note 54, at 11-12 [paragraph] 27, 30.

(59.) [W]e should evaluate any system of free expression at least in part by attending to two matters: the amount of attention devoted to public issues and the expression of diverse views on those issues. Use of these criteria accords well with the original Madisonian vision of the First Amendment. It also draws support from a range of important writings, most prominently those of Alexander Meiklejohn. Many people are skeptical of the idea that the.... First Amendment is exclusively or even primarily connected with democratic self-government in order to conclude that something is wrong if the system deals little with public issues and contains little diversity of views.

Cass R. Sunstein, Half-Truths of the First Amendment, 1993 U. CHI. LEGAL F. 25, 33 (1993).

(60.) P. 74.

(61.) Id. at 8.

(62.) Id. at 23.

(63.) Reno v. ACLU, 521 U.S. 844, 869 (1997) (quoting the District Court opinion).

(64.) SHAPIRO, supra note 6, at 197-207.

(65.) See Doreen Carvajal, A Club Where Flamboyance is Queen; The Barracuda Welcomes Outre, From Tammy Faye to Tonya, N.Y. TIMES, Aug. 1, 2001, at E1 ("`The overall philosophy behind [the Chelsea club] Barracuda is that it always be fun and unexpected.'").

(66.) Based on data indicating the increasing prominence of a small number of websites, see Amy Harmon, Exploration of World Wide Web Tilts from Eclectic to Mudane, N.Y. TIMES, Aug. 26, 2001, [section] 1, at 1, Shapiro believes that phenomena like junk e-mail and even web surfing will likely be transitional until stronger filtering tools are developed and individuals become accustomed to using them. Personal Communication from Andrew L. Shapiro to author (Nov. 6, 2001) (on file with author).

(67.) Lisa Guernsey, Cyberspace Isn't So Lonely After All, N.Y. TIMES, July 26, 2001, at G1. For reports based on hard data, which reach what appear to be more reasonable conclusions, see James E. Katz, Ronald E. Rice & Philip Aspden, The Internet, 1995-2000: Access, Civic Involvement, and Social Interaction, 45 AM. BEHAV. SCIENTIST 405 (2001); John B. Horrigan, Online Communities: Networks that Nurture Long-Distance Relationships and Local Ties (Oct. 31, 2001), at http://www.pewinternet.org/reports/pdfs/ PIP_Communities_Report.pdf.

(68.) For example, an early 2000 study by Stanford professor Norman Nie that found that time spent online led to diminished social contacts did not appreciate the positive role of e-mail. See Guernsey, supra note 67.

(69.) The significance of the Internet may be analogous to the example Sunstein gives of the automobile, which was criticized for "`its extreme unsociability' especially compared with the railway, `which tended to gather [people] together.'" P. 206 n.2. Of course, that neglects the positive impact of the automobile on eliminating the need to shape visits around train schedules, diminishing the incremental price of visits, and expanding the locations that visitors could meet at quickly and easily.

(70.) See Neil Strauss, Foraging For Music in the Digital Jungle, N.Y. TIMES, Aug. 20, 2001, at E1 (observing that musicians can "sneak" into listeners' ears by titling their song similarly to a popular tune).

(71.) Pp. 10, 57.

(72.) See DAVID H. DODD & RAYMOND M. WHITE, JR., COGNITION MENTAL STRUCTURAL PROCESSES 36-47 (1980). One expert conceives of the brain primarily as a "reducing valve," whose function is to reduce the amount of information received to a manageable amount. ALDOUS HUXLEY, THE DOORS OF PERCEPTION: HEAVEN AND HELL 24 (Chatto & Windus eds., 1960) (1954); see also Louis B. Rosenfeld & Maurita P. Holland, Automated Filtering of Internet Postings, ONLINE, May 1, 1994, at 27.

(73.) For example, drivers often fail to notice stop signs, and psychology experiments have demonstrated that some audience members viewing a basketball-like exercise over some period may fail to even notice the prominent entrance of a woman in a gorilla suit. See Malcolm Gladwell, Wrong Turn, NEW YORKER, June 11, 2001, at 50, 54-55.

(74.) As Sunstein observes, "Consumers' attention is the crucial (and scarce) commodity...." P. 18.

(75.) Thus, Pulitzer Prize-winning author Larry McMurtry, who also runs a profitable second-hand book business, observes: "It's very easy to have a million books.... The factor that concerns me most is keeping out junk." John Schwartz, Secondhand Book Wrangler, N.Y. TIMES, July 23, 2001, at C1.

(76.) See Kendra Mayfield, Ask a Librarian, Not Jeeves, WIRED NEWS, NOV. 24, 2000, at http://www.wired.com/news/print/0,1294,40308,00.html (observing that because of the volume of information on the web, librarians become "mediators" to provide knowledge-seekers with "good information"). As New York University professor Neil Postman has observed, in the nineteenth century the problem journalism solved was the scarcity of information, while in the late twentieth century, journalism must instead tackle an information glut. The problem, he says, "is how to decide what is significant, relevant information, [and] how to get rid of unwanted information." Katherine Fulton, A Tour of Our Uncertain Future, COLUM. JOURNALISM REV., Mar./Apr. 1996, at 19, 23.

(77.) Jorge Luis Borges, The Library of Babel, in FICCIONES 79 (Anthony Kerrigan trans., 1962), available at http://www.analitica.com/bitblioteca/jjborges/library_babel.asp. In the story, an infinite library, containing books with every possible combination of letters and words appears at first to be a beautiful dream, but on further thought, it became evident that, without a catalogue, discovering the gems of beauty amidst the myriad collections of junk was not a practical task. Id.

(78.) Glen O. Robinson, The Electronic First Amendment: An Essay for the New Age, 47 DUKE L.J. 899, 970 (1998) (quoting Esther Dyson, Intellectual Property on the Net, available at http://www.eff.org/pub/Publication/EstherDyson/ip_on_the_net.article).

(79.) See Shanto Iyengar, Kyu Hahn & Markus Prior, Has Technology Made Attention to Political Campaigns More Selective? An Experimental Study of the 2000 Presidential Campaign (Sept. 2, 2001) (unpublished manuscript) (During political campaigns, "the range of incoming stimuli is vast and prospective voters, characterized generally by low levels of information and interest, are more than willing to adopt reasonable short-cuts to decision-making."), available at http://pcl.stanford.edu/common/docs/research/iyengar/2001/ selatt.pdf.

(80.) P. 55.

(81.) Id. at 35. See also infra note 137. Shapiro's assumptions about a woman on guard to avoid information that challenged her strong opposition to homosexuality may slip into a similarly erroneous assumption. See SHAPIRO, supra note 6, at 112.

(82.) P. 114.

(83.) P. 115.

(84.) As Professor Larry Tribe has noted, even pigeons can learn to recognize that binding their future actions can be beneficial. LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 10 (1978) (seeking "the outlines of an answer" as to why the Constitution should be regarded as legitimately barring legislation favored by current majorities in "the parable of the pigeon"--an experiment showing that pigeons sometimes prefer to "bind their `own future freedom of choice'") (citing G.W. Ainslie, Impulse Control in Pigeons, 21 J. EXPERIMENTAL ANALYSIS BEHAV. 485 (1974)). See also the example of Ulysses' decision to "precommit" himself against being swayed by the Sirens. P. 115.

(85.) See Mark S. Nadel, The Consumer Product Selection Process in an Internet Age: Obstacles to Maximum Effectiveness and Policy Options, 14 HARV. J.L. & TECH 183, 252-53 (2000) [hereinafter Nadel, Selection]; see also Mark S. Nadel, The Consumer Product Selection Process in an Internet Age: Obstacles to Maximum Effectiveness and Policy Options, at http://www.ssrn.com/abstract=247818 (containing supplementary material).

(86.) Id. at 253 n.408 and accompanying text.

(87.) And spam is now spreading to Instant Messaging. See Lisa Guernsey, Message to Marketers: RU4 Real?, N.Y. TIMES, Jun. 28, 2001, at G1.

(88.) Cf. Lisa Guernsey, Why E-Mail is Creating Multiple E-Personalities, N.Y. TIMES, Sept. 26, 2001, at H3.

(89.) See Mark S. Nadel, Editorial Freedom: Editors, Retailers, and Access to the Mass Media, 9 HASTINGS COMM. & ENT. L.J. 213, 225-33 (1987).

(90.) Book fairs and sidewalk sales that offer books in unorganized presentations may be fun for browsing, but researchers with time constraints would be unlikely to conduct research in such noisy environments.

(91.) Mark S. Nadel, The First Amendment's Limitations on the Use of Internet Filtering in Public and School Libraries: What Content Can Libraries Exclude?, 78 TEX. L. REV. 1117, 1137 n.98 (2000) [hereinafter Nadel, Libraries]; see also The First Amendment's Limitations on the Use of Internet Filtering in Public and School Libraries: What Content Can Libraries Exclude?, at http://www.ssm.com/abstract=230834 (containing supplementary material).

(92.) See LESSIG, supra note 1, at 78-82; Richard C. MacKinnon, Searching for the Leviathan in Usenet, in CYBERSOCIETY: COMPUTER-MEDIATED COMMUNICATION AND COMMUNITY 112, 129-32 (Steven G. Jones, ed., 1995). This appears to arise, in large part, from participants' ease of exit. Neil Weinstock Netanel, Cyberspace Self-Governance: A Skeptical View from Liberal Democratic Theory, 88 CAL. L. REV. 395, 429-32 (2000).

(93.) See Yochai Benkler, Coase's Penguin, or, Linux and the Nature of the Firm, 13-17 (Oct. 2001), available at http://arXiv.org/pdf/cs.CY/0109077. Yet even Slashdot.org filters out stories that have technical formatting problems or, in principle, if they are poorly written or outdated. Id. at 14.

(94.) Alexander Stille, Adding Up the Costs of Cyberdemocracy, N.Y. TIMES, June 2, 2001, at B9 (reflecting comments of Scott Reents, president of quorum.org and E-ThePeople).

(95.) Id.

(96.) This seems to be even more common among consumer product and service-rating services, where opinions are labeled based on the reputation of those writing them. See, for example, eBay.com; epinions.com; and Amazon.com.

(97.) See www.bodieselectric.com.

(98.) See Ann C. Weller, Editorial Peer Review for Electronic Journals: Current Issues and Emerging Models, 51 J. AM. SOC'Y INFO. SCI. 1328 (2000).

(99.) Original Proposal for E-biomed (draft and addendum 1999), available at www.nih.gov/about/director/pubmedcentral/ebiomedarch.htm.

(100.) See Bernard J. Hibbitts, Last Writes?: Reassessing the Law Review in the Age of Cyberspace, 71 N.Y.U.L. REV. 615, 673 (1996); Bernard J. Hibbits, Yesterday Once More: Skeptics, Scribes, and the Demise of Law Reviews, 30 AKRON L. REV. 267, 300 (1996). Consumers also rely on publishers to help them identify the most worthwhile books, although the latter certainly make many mistakes. See D.T. Max, No More Rejections, N.Y. TIMES, July 16, 2000, [section] 7, at 35.

(101.) Larry Lessig believes that the nation's founders relied upon the limitations of technology to provide a number of results that new technologies are now threatening, including individual privacy and Congressional deliberations free from the pressures of daily polling. LESSIG, supra note 1, at 228.

(102.) See Sherri Day, For All Creatures, a Publicity Hound: Getting Results for Pets (It's Not Hard), N.Y. TIMES, Aug. 15, 2001, at B1 (observing that Jane Colton is an expert at placing animal stories in the media); infra note 140 and accompanying text. Museums are also playing this role. See Michael Kimmelman, Museums in a Quandary: Where Are the Ideals?, N.Y. TIMES, Aug. 26, 2001, [section] 2, at 1 (arguing that museums are "places to show things people didn't know they wanted or may not think they want to see").

(103.) Of course, the First Amendment prohibits the U.S. government from using filters to censor offensive viewpoints the way that other nations do. See, e.g., SHAPIRO, supra note 6, at 65-67; Jennifer 8. Lee, Companies Compete to Provide Internet Veil for the Saudis, N.Y. TIMES, Nov. 19, 2001, at C1; Jennifer 8. Lee, Punching Holes in Internet Walls, N.Y. TIMES, Apr. 26, 2001, at G1 (discussing the efforts of nations to control the Internet messages that flow within their borders and the technologies that are defeating those filters); Jennifer 8. Lee, United States Backs Plan to Help Chinese Evade Government Censorship of Web, N.Y. TIMES, Aug. 30, 2001, at A10; Shanthi Kalathil & Taylor C. Boas, The Internet and State Control in Authoritarian Regimes: China, Cuba, and the Counterrevolution (July 2001) (Carnegie Endowment for International Peace, Working Paper), at www.ceip.org/files/Publications/wp21.asp.

(104.) See Volokh, supra note 6, at 1835.

(105.) P. 34. Still, he acknowledges later that this is not tree in a legal sense, given the difference between public and private ownership and a general right of access. Id. at 36-37.

(106.) Economies of scale and scope in printing and distribution of newspapers led newspapers to gain local monopolies by catering to wider audiences and, like politicians, by avoiding unnecessarily offending any significant group of customers--readers or advertisers.

(107.) See ITHIEL DE SOLA POOL, TECHNOLOGIES OF FREEDOM 238 (1983):

  Newspapers, as they moved into the status of monopolies, had the wisdom to
  defuse hostility by acting in many respects like a common carrier.... Unlike
  their nineteenth-century ancestors, they see themselves as providing a forum
  for the whole community. They not only run columnists of opposite tendency
  and open their local news pages willingly to community groups, but also
  encourage letters to the editor.

Id.; see also HUTCHINS REPORT, supra note 57, at 92 (recommending that the media "accept the responsibilities of common carriers of information and discussion").

(108.) Under certain conditions, monopoly multi-channel video-media firms may provide greater diversity than competing single-channel firms. See BRUCE M. OWEN & STEVENS. WILDMAN, VIDEO ECONOMICS 64-100 (1992); Baker, supra note 6, at 373-74; Lisa George, What's Fit to Print: The Effect of Ownership Concentration on Product Variety in Daily Newspaper Markets (Aug. 1, 2001), at http://www.arxiv.org/spdf/cs/0108014.

(109.) See BEN BAGDIKIAN, THE MEDIA MONOPOLY xxv-xxvii, 152-73 (6th ed. 2000); C. EDWIN BAKER, ADVERTISING AND A DEMOCRATIC PRESS 44-69 (1994) (detailing how media dependency on advertising revenue has led to diminished media treatment of controversial public issues in favor of content designed to put readers and viewers in a "buying mood"); CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH 62-66 (1993); Jayson Blair, Ads Withdrawn from the Post As a Criticism of Anthrax Cartoon, N.Y. TIMES, Oct. 24, 2001, at D8; see also HUTCHINS REPORT, supra note 57, at 64.

(110.) See, e.g., Celestine Bohlen, In New War on Terrorism, Words Are Weapons, Too, N.Y. TIMES, Sept. 29, 2001, at All; Bill Carter, CBS Pulls Show Over Concern From P. & G., N.Y. TIMES, Aug. 17, 2001, at C1 (referring to controversial episodes of the dramatic series Family Law); Bill Carter, Sponsors Defect, N.Y. TIMES, Sept. 26, 2001, at E7 (discussing advertiser defections from the late-night ABC talk show Politically Incorrect with Bill Maher). Thus the Emmy Award-winning HBO series, The Sopranos, would not be acceptable in the "general media." See Bill Carter, NBC Searching For Lessons In `Sopranos,' N.Y. TIMES, May 2, 2001, at C1; Caryn James, `The Sopranos:' Brutally Honest, N.Y. TIMES, May 22, 2001, at E1. Historically, examples have included material on homosexuality. See THE CELLULOID CLOSET (Sony Pictures 1995) (documentary exploring history of sexuality in film that had few sponsors).

(111.) See, e.g., Neil Strauss, After the Horror, Radio Stations Pull Some Songs, N.Y. TIMES, Sept. 19, 2001, at E1.

(112.) John Leonard, How a Caged Bird Learns to Sing, NATION, June 26, 2000, at 11.

(113.) See David Brooks, One Nation, Slightly Divisible, ATLANTIC MONTHLY, Dec. 2001, at 53, 62 ("It would simply be uncivil to thrust ... raw disagreement in people's faces."); Alex Kuczynski, Teenage Magazines Mostly Reject Breast Enlargement Ads, N.Y. TIMES, Aug. 13, 2001, at C1; Evelyn Nieves, Local Newspapers Become the Story, N.Y. TIMES, Mar. 19, 2000, at A24 (discussing the policy of San Luis Obispo County gazettes not to run stories "promoting the gay lifestyle or abortion").

(114.) Lyman, supra note 44. Even a comic genius like Andy Kaufman is not welcome to present material likely to upset the mass audience. See MAN ON THE MOON (Universal Pictures 1999). Moreover, such comments are not tolerated from editors, even in unrelated media. See, e.g., Bernard Weinraub, Editor in Chief of Variety is Suspended, N.Y. TIMES, Aug. 18, 2001, at C1.

(115.) Thus, many have observed that the press--most of whom own or are clearly affiliated with broadcast stations--severely neglected the 1995-96 story of the allocation of an estimated $70 billion in spectrum to broadcasters at no charge. See Neil Hickey, What's at Stake in the Spectrum War?, COLUM. JOURNALISM REV., July/Aug. 1996, available at http://www.cjr.org/year/96/4/spectrum.asp.

(116.) See HUTCHINS REPORT, supra note 57, at 57.

(117.) See GABLER, supra note 24, at 59 ("Prior to the 1830s most American newspapers weren't newspapers at all. They were party broadsheets largely devoted to advertisements and partisan editorializing so rabid that Tocqueville attacked the American journalist as an uneducated vulgarian who makes `an open and coarse appeal to the passions of his readers; he abandons principles to assail the character of individuals, to track them into private life and disclose all their weaknesses and vices.'").

According to the HUTCHINS REPORT: "'[M]ost of the early newspapers were partisan sheets devoted to savage attacks on party opponents.'" HUTCHINS REPORT, supra note 57, at 131 (quoting Charles Beard, St. Louis Post-Dispatch Symposium on Freedom oft he Press 13 (1938)); see also PATRICK M. GARRY, SCRAMBLING FOR PROTECTION: THE NEW MEDIA AND THE FIRST AMENDMENT 97-106 (1994); LEONARD W. LEVY, EMERGENCE OF A FREE PRESS (1985).

(118.) See BERNARD GOLDBERG, BIAS: A CBS INSIDER EXPOSES HOW THE MEDIA DISTORT THE NEWS (2001); Jim Rutenberg, Fox Portrays a War of Good and Evil, and Many Applaud, N.Y. TIMES, Dec. 3, 2001, at C1; Marshall Sella, The Red-State Network, N.Y. TIMES, Jun. 24, 2001, [section] 6 [Magazine], at 26 (comparing Fox News Channel and CNN and finding that "[o]n an average news day, Fox leans to the right just as CNN leans to the left"). As Lee Bollinger observed about even professional journalists:

   There is no guarantee that the press will not abuse the freedom it
   possesses.... And there are many ways in which it might do so. The press
   can exclude important points of view, operating as a bottleneck in the
   marketplace of ideas. It can distort knowledge of public issues not just by
   omission, but also through active misrepresentations and lies. It can also
   exert an adverse influence over the tone and character of public debate in
   subtle ways, by playing to personal biases and prejudices or by making
   people fearful and, therefore, desirous of strong authority. It can fuel
   ignorance and pettiness by avoiding public issues altogether, favoring
   simple-minded fare or cheap entertainment over serious discussion. Even if
   the pressures for low-quality discussion come from the people themselves,
   as to some extent they do, the press acts harmfully by responding to those
   demands and hence satisfying and reinforcing them.

LEE C. BOLLINGER, IMAGES OF A FREE PRESS 26-27 (1991); see also P. 36.

(119.) 418 U.S. 241 (1974). Those the Court called "access advocates" included Justice William Douglas, Thomas Emerson, Archibald MacLeish, and the authors of the HUTCHINS REPORT, supra note 57, and of the TWENTIETH CENTURY FUND'S TASK FORCE REPORT FOR A NATIONAL NEWS COUNCIL, A FREE AND RESPONSIVE PRESS 4 (1973).

(120.) The Court also makes extensive reference to Jerome A. Barron, Access to the Press--A New First Amendment Right, 80 HARV. L. REV. 1641 (1967), Ben Bagdikian's work on concentration of ownership in the media, supra note 109, David Lange, and the sources cited supra note 119. According to Ed Baker, such access would seem to be justified under a liberal pluralistic democracy. See Baker, supra note 6, at 372-73.

(121.) 418 U.S. at 248.

(122.) Id. at 249-51 (citations omitted).

(123.) The current concentration of media is discussed in: DEAN ALGER, MEGAMEDIA: HOW GIANT CORPORATIONS DOMINATE MASS MEDIA, DISTORT COMPETITION, AND ENDANGER DEMOCRACY 153-93 (1998); BAGDIKIAN, supra note 109; ROBERT W. MCCHESNEY, RICH MEDIA, POOR DEMOCRACY: COMMUNICATION POLITICS IN DUBIOUS TIMES (1999); Alex Kuczynski, Feeding Frenzy: Big Magazine Publishers Get Bigger, As the Smaller Ones Get Gobbled Up, N.Y. TIMES, July 30, 2001, at C1; Stephen Labaton, AT&T's Cable Deal: The Regulators; New Era in Washington Paves Way for This and Other Deals, N.Y. TIMES, Dec. 20, 2001, at C8; Stephen Labaton, Broadcasters Ask Senate to Let F.C.C. Loosen Rules, N.Y. TIMES, July 18, 2001, at C4; Seth Schiesel, In Cable TV, Programmers Provide a Power Balance, N.Y. TIMES, July 16, 2001, at C6. But see BENJAMIN M. COMPAINE & DOUGLAS GOMERY, WHO OWNS THE MEDIA? COMPETITION AND CONCENTRATION IN THE MASS MEDIA INDUSTRY (3d ed. 2000) (finding that the media have become less concentrated in the previous twenty years).

(124.) See Baker, supra note 6, at 355-56, 370.

(125.) Id. at 355. Public journalism is oriented toward "citizens as participants, politics as problem solving, democracy as thoughtful deliberation." JAY ROSEN, GETTING THE CONNECTIONS RIGHT: PUBIC JOURNALISM AND THE TROUBLES IN THE PRESS 16 (1996); see also ARTHUR CHARITY, DOING PUBLIC JOURNALISM (1995); DAVIS MERRITT, PUBLIC JOURNALISM AND PUBLIC LIFE: WHY TELLING THE NEWS IS NOT ENOUGH (1995).

(126.) See, e.g., HOWARD KURTZ, HOT AIR: ALL TALK, ALL THE TIME (1996); TALKERS MAGAZINE ONLINE, at http://www.talkers.com.

(127.) Shapiro discusses how people desire consistency in their lives and avoid messages whose inconsistency with their views causes cognitive dissonance. He explains that "`[w]hen a dissonance is present ... in addition to trying to reduce it, the person will actively avoid situations and information which would likely increase the dissonance.'" SHAPIRO, supra note 6, at 109 (quoting Dr. Leon Festinger, A THEORY OF COGNITIVE DISSONANCE 22 (1957)). While close-minded individuals would presumably try to avoid such dissonance by avoiding exposure to messages that challenged their beliefs, open-minded individuals would presumably choose to evaluate the new and old views together first before deciding which one to reject as less convincing. See Iyengar, Hahn & Prior, supra note 79, at 3. That would appear to be the definition of an open mind.

(128.) See generally Mark S. Nadel, Empower Parents to Choose Quality Children's Television, 19 J. POL'Y ANALYSIS & MGMT. 145 (2000) [hereinafter Nadel, Parents].

(129.) P. 16.

(130.) SHAPIRO, supra note 6, at 109-12.

(131.) See Neil Weinstock Netanel, Cyberspace 2.0, 79 TEX. L. REV. 447, 468-69 (2000); supra Part II.A.1.

(132.) P. 101.

(133.) See infra note 141.

(134.) Thus, one might note, "I just saw that they are putting a new shopping center in your town," or "I just saw that Billy's baseball team won the town championship," or "I just saw that a conglomerate is rumored to be considering acquiring your company." As the filter learned to identify stories of interest, id., one could discover many stories for connecting with others that one would otherwise not have the time to search for.

(135.) Just as some students prefer to learn from reading a textbook, and others from a classroom teacher, and still others from films or even games.

(136.) Links could even be provided to a few clips of the key scenes of a program, although if the scenes were not highlighted in preview clips, copyright rules might limit this service to those who owned TiVo recorders. (137.) Pp. 15, 169, 200.

(138.) Cf. Dave Kansas, A Dot-com Editor Sheds His Five-year `Cocoon,' and Looks at How Journalism Has Changed in the Age of the Internet, N.Y. TIMES, July 16, 2001, at C5 ("[M]any readers have always liked a little whispered chatter with their traditional news.").

(139.) Some reporters, like Turner Broadcasting sports essayist Jim Huber, even specialize in stories like these. See Richard Sandomir, No Camera, Just Notebook, for Report on a Life and Death, N.Y. TIMES, Aug. 13, 2001, at D4.

(140.) Although the Wall Street Journal announced that it would be changing its front page design in April 2002, "[l]ike the current front page, the new one is expected to include one offbeat feature article." David D. Kirkpatrick, Wall St. Journal to Redesign Its Front Page, N.Y. TIMES, Dec. 7, 2001, at C6. Of course, there is reasonable disagreement about what the front page of a newspaper should include--only hard news or features too--but probably little disagreement that the newspaper must be "entertaining, amusing, funny, surprising, [and] unpredictable." Felicity Barringer, From Inside, a Critic Challenges a Paper, N.Y. TIMES, Feb. 26, 2001, at C1 (discussing the views of Washington Post ombudsman Michael Getler).

(141.) The phrase "collaborative filtering" was coined by the developers of Tapestry, which was one of the first computerized recommendation systems. "Collaborative filtering" simply means that people collaborate to help one another to identify preferred options by filtering out less worthwhile ones based on the reactions of those who appear to have similar interests. See David Goldberg, et. al., Using Collaborative Filtering to Weave an Information Tapestry, COMM. ACM, Dec. 1992, at 61.

(142.) Pp. 25-26.

(143.) This presumes that collaborative filtering algorithms would recognize that many interests are very transitory; otherwise, recommendations may be obsolete. See Yochai Benkler, Net Regulation: Taking Stock and Looking Forward, 71 U. COLO. L. REV. 1203, 1252 (2000).

(144.) See Samuel G. Freedman, Fighting to Balance Honor and Profit on the Local News, N.Y. TIMES, Sept. 30, 2001, [section] 2, at 26 (discussing the five-hour PBS documentary, Local News); Rachel L. Swains, Johannesburg Journal; Unthinkable Attack Jolts a Crime-Weary Country, N.Y. TIMES, Nov. 16, 2001, at A4 (discussing the rape of a baby girl).

(145.) Pp. 55-56. In fact, advertisers may target such purchasers to reinforce buyer confidence in their choice, fostering long-term brand loyalty, and pre-empt the likelihood of even mild second thoughts of regret. E.g., ROBERT FROST, The Road Not Taken, in THE POETRY OF ROBERT FROST 105 (Edward Connery Lathem ed., 1969).

(146.) Even small children are gratified by the opportunity to choose, and thus parents often find that they can pacify a child angry about being denied one choice, by offering the child a chance to choose between other alternatives.

(147.) Consumer Reports is one of the few websites able to successfully charge subscription fees for access to its content. See Chris Gaither, Major League Baseball to Charge for Web Broadcasts, N.Y. TIMES, Mar 27, 2001, at C4.

(148.) See references cited in Nadel, Selection, supra note 85, at 185 n.3.

(149.) Id. at 198-200.

(150.) Id. at 197-99.

(151.) See supra note 141.

(152.) PAUL F. LAZARSFELD, BERNARD BERELSON & HAZEL GAUDET, THE PEOPLE'S CHOICE 90-91 (3d ed. 1968) ("[W]e find that consumers of ideas, if they have made a decision on the issue, themselves erect high tariff walls against alien notions.").

(153.) Studies indicate that there is only very limited partisan selectivity, which becomes more pronounced as one moves right on the political spectrum. Still, even conservatives pay non-trivial attention to the candidates of opposing parties. See Iyengar, Hahn & Prior, supra note 79, at 15-16.

(154.) P. 4.

(155.) See Nobel Savages: Economists in Academia (University of Chicago), ECONOMIST, Mar. 30, 1996, at 72.

(156.) See POOL supra note 107; Andrew Ciofalo, Survey Probes Status of Op-ed Journalism and Practices of Op-ed Editors, 19 NEWSPAPER RES. J. 18 (Spring 1998), 1998 WL 22435565; Who We Are, What We Do. Reader's Guide to the Editorial Pages, BUFFALO NEWS, Apr. 1, 2001, at G1 ("In the end, hopefully, we will have produced a page that stimulates our readers. We strive to produce a page that makes you remark, to everyone or to nobody in particular, either "Yes!" or "Look at what those idiots are saying today!"). The New York Times' first op-ed page appeared in 1917. See http://infoplease.kids.lycos.com/ year/1917.html.

(157.) For example, the generally liberal New York Times sought out former Nixon speechwriter William Satire. William Satire, Nights of the Round Table, N.Y. TIMES, July 19, 2001, at A25. And the politically left Village Voice also publishes columnists who antagonize a large portion of its readers. See Felicity Barringer, Conservative Gay Columnist is Under Fire, N.Y. TIMES, Aug. 6, 2001, at C1 (discussing Norah Vincent).

(158.) See PETER PRICHARD, THE MAKING OF MCPAPER: THE INSIDE STORY OF USA TODAY 157 (1987). This approach has been reduced more recently, but opposing viewpoints are still featured. Shapiro believes that "information gatekeepers" such as news magazines have an obligation to share their audience with speakers who could not otherwise afford to reach that audience. SHAPIRO, supra note 6, at 225.

(159.) P. 26; see also SHAPIRO, supra note 6, at 105-07. Shapiro fears that feedback loops will further narrow information learned by a given individual. Id. at 113-14.

(160.) Lawrence Lessig, Privacy and Attention Span, 89 GEO. L.J. 2063, 2066-67 (2001) (noting that there is a problem if individuals interested in an issue are not willing to devote the time necessary to understand it).

(161.) Pp. 75-76.

(162.) See, e.g., ITHIEL DE SOLA POOL, TECHNOLOGIES WITHOUT BOUNDARIES 15-16 (1990) for a posthumous publication of concerns expressed by the noted political scientist who died in 1984. Pool appreciated the shift from a concern with a trend to conformity to his concern with excess fragmentation. Id.

(163.) This may be because all the religions with significant followings share a common core of fundamental values.

(164.) See ANNUAL ASSESSMENT OF THE STATUS OF COMPETITION IN MARKETS FOR THE DELIVERY OF VIDEO PROGRAMMING, SEVENTH ANNUAL REPORT, 16 F.C.C.R. 6005, 6014 [paragraph] 15 ("The number of satellite-delivered programming networks has decreased by two from 283 in 1999 to 281 in 2000.").

(165.) Jere Longman, Pro Leagues' Ratings Drop: Nobody Is Quite Sure Why, N.Y. TIMES, July 29, 2001, [section] 8 at 1; Jim Rutenberg, Cable Networks Look for Ways to Stand Out, N.Y. TIMES, Aug. 29, 2001, at C1.

(166.) See Markus Prior, Efficient Choice, Inefficient Democracy? The Implications of Cable and Internet Access for Political Knowledge, in TPRC 2001 PROCEEDINGS 25 (Shane Greenstein & Lorrie Cranor eds., 2002) (forthcoming) (quoting W. R. Neuman, Political Communication Infrastructure, 546 ANNALS AM. ACAD. POL. & SOC. SCI. 9, 19 (1996)), available at http://www.arxiv.org/pdf/cs/0109110

(167.) See COMPAINE & GOMERY, supra note 123, at 150, 287. Not since the 1950s or 60s has most of the public been likely to read or watch the same things. See, e.g., MICHAEL LEWIS, NEXT: THE FUTURE JUST HAPPENED 190-91 (2001) (quoting Nick Donatiello, head of market research for Odyssey).

(168.) Pp. 75-79.

(169.) To foster such free trade of ideas, Yale University requires undergraduates to live in close proximity to their classmates and refused to grant Orthodox Jews an exemption from this educational requirement. As Yale University President Richard Levin stated, "This university has been committed to offering an encounter with difference as part of its educational mission. These students want the education, but they don't want the encounter." Samuel G. Freedman, Yeshivish at Yale, N.Y. TIMES, May 24, 1998, [section] 6, at 32. It is also useful to note, more generally, that in 1776, in The Wealth of Nations, Adam Smith recognized that to make all parties better off, specialization must be coupled with free trade. All so-called developed nations have accepted this analysis and seen their economies and constituents benefit from it.

(170.) Examples of parents who seem to recognize this include the parents of the tennis stars Venus and Serena Williams, see Pat Jordan, Daddy's Big Test, N.Y. TIMES, Mar. 16, 1997, [section] 6 (Magazine), at 28, and those of the chess prodigy portrayed in SEARCHING FOR BOBBY FISHER (Paramount 1993).

(171.) Research assistants may notice and report on interesting, unexpected sightings, but more likely, they will be too busy with other tasks to pursue such inquiries themselves, or they will lack the expertise to recognize the relevance or importance of a serendipitous exposure. Meanwhile, the time demands of family, friends, and work may often prevent senior scholars from allocating sufficient time to debriefing their assistants on such incidental discoveries. Thus, in the interest of efficient and effective research, prolific scholars, senior attorneys, and others forsake significant amounts of serendipitous searching, despite its value. Cf. SHAPIRO, supra note 6, at 263 n. 1 (citing Ted Gup, The End of Serendipity, CHRONICLE OF HIGHER EDUC., Nov. 21, 1997, at A52). The opportunity cost of serendipity is simply too high.

(172.) See Nadel, Parents, supra note 128.

(173.) Despite significant publicity, it is not clear how effective former FCC Chairman Newton Minow's 1961 "Vast Wasteland" speech was. NEWTON N. MINOW & CRAIG L. LAMAY, ABANDONED IN THE WASTELAND: CHILDREN, TELEVISION, AND THE FIRST AMENDMENT 3-4 (1995).

(174.) See POSTMAN, supra note 2, at 107-13. Cyberspace offers an environment potentially more suitable for "typographical" information. Id.

(175.) The emergence of newspapers as purveyors of entertaining news, rather than merely opinion, was marked by the arrivals of Benjamin Day's New York Sun (1833), James Gordon Bennett's New York Herald (1835), Joseph Pulitzer's New York World (1883), William Randoph Hearst's New York Journal (1895), and the first modern American tabloid, Joseph Medill Patterson's Illustrated Daily News (1919). See GABLER, supra note 24, at 59-72.

(176.) Pp. 108-12; see also Nadel, Selection, supra note 85, at 253-54.

(177.) P. 112.

(178.) Id. at 114.

(179.) See Nadel, Selection, supra note 85, passim.

(180.) See Mark S. Nadel, Employing Students, Hollywood, Librarians & Cyberspace to Foster Wiser Decisionmaking (2001) (unpublished manuscript, on file with author) [hereinafter Nadel, Voting]. There would seem to be no reason to believe that consumers could not understand and appreciate the relevance of their frame of reference, as that doctrine has been explained by Robert Frank. See Pp. 119-22 (referencing ROBERT FRANK, LUXURY FEVER (1998)).

(181.) Sunstein defines perfect filtering to be where "people can decide, in advance and with perfect accuracy, what they will and will not encounter," P. 5, and he describes a number of current website filters that appear to be approaching that goal, id. at 5-7. In 1931, German mathematician Kurt Godel proved his landmark "incompleteness theorem," which states that no matter how detailed and comprehensive a set of rules is, if those rules are internally consistent, there will be some statements that they will not be able to label as either true or false. That is, any consistent set of rules will necessarily be incomplete. It follows that, no matter how sophisticated a filter is about distinguishing between acceptable and unacceptable messages, there will be some messages for which the filter will be unable to decide whether or not the message should be screened out, if the filter is not inconsistent. Hence, "perfect filtering" of this form is theoretically impossible. For a fascinating and enlightening explanation of Godel's theorem and proof, see DOUGLAS R. HOFSTADTER, GODEL, ESCHER, BACH: AN ETERNAL GOLDEN BRAID (1979).

(182.) These are the type of filters used by parents to protect their children against unwanted material or used by public libraries. See Nadel, Libraries, supra note 91, at 1151-52.

(183.) John Markoff, As Web Expands, Search Engines Puff to Keep Up, N.Y. TIMES, May 29, 2000, at C3.

(184.) See Lawrence Lessig, What Things Regulate Speech: CDA 2.0 vs. Filtering, 38 JURIMETRICS 629, 654 (1998).

(185.) See Nadel, Libraries, supra note 91, at 1121-27.

(186.) They could try to pressure the manufacturer to improve the product, but the exit strategy is likely to be more practical here. Cf. ALBERT O. HIRSCHMAN, EXIT, VOICE, AND LOYALTY: RESPONSES TO DECLINE IN FIRMS, ORGANIZATIONS, AND STATES (1970).