21: Foundations of Deliberative Democracy

Table of contents

1. Review and Intro for Unit
   1. Intellectual Property and Fair Use as a Latent Ambiguity.
   2. Freedom of Speech as a Latent Ambiguity.
   3. A Reading Outline
2. Sunstein’s Daily Me
3. Ideals of Deliberative Democracy
   1. Rousseau’s Social Contract
   2. Private vs. General Will / Real Will
   3. Rousseau and the Problem of the Legislator
   4. Kant, What is Enlightenment
   5. Kant and the Power of Dialectic
4. Holmes and Brandeis: Competing Reasons to Value Free Speech

Review and Intro for Unit

Intellectual Property and Fair Use as a Latent Ambiguity.

At this point, we’ve read a substantial amount from Lessig. The overarching goal of the reading, thus far, is to see the many ways code (understood broadly, not just as computer code, but also as physical architectures, etc) regulates. Certain behaviors are limited by the costs or difficulties imposed by the medium.

Because code regulates, many rights or freedoms have been protected implicitly. Such rights are protected, not by a positive law that guarantees such a right, but because the existing code has made it “seem” impossible for such a right to be revoked or infringed upon.

Our best example thus far had to do with “intellectual property”. Historically, intellectual property claims were limited by the inability to enforce any “totalizing” property claim. Thus the inability to perfectly enforce a property claim left a sphere of freedom (freedom to fair use, freedom to receive an idea anonymously, and the freedom to re-use ideas in the service of free or amateur culture.)

But Lessig is at pains to point out that because these freedoms are protected by the code not by written law, society has never made a direct decision about whether these rights should be protected.

In other words, society has never explicitly decided whether the inability to perfectly enforce intellectual property laws is a feature or a bug. Thus, this is a Latent Ambiguity

Now that the code is making perfect enforcement possible, the ambiguity is rising to the surface for the first time. The limited scope of intellectual property is no longer guaranteed by the logic of the “code”. If it is important to society that this scope remain limited, society must now declare this explicitly.

Freedom of Speech as a Latent Ambiguity.

Today I want to begin a longer and more extensive exploration of a Latent Ambiguity hidden with the cherished right known commonly as “Freedom of Speech”.

To helps us with this exploration we are going to follow some of the reflections of Cass Sunstein. Sunstein writes about the problem of free speech in the modern age and considers the legal justification of new speech regulations in the world of digital media.

Our long term goal is to recognize why there is a “Latent Ambiguity” hidden with the right to free speech. We want to consider how the “code” that has formed the “platform” where speech has traditionally been enacted has marked political speech with some distinct characteristics. This is a Latent Ambiguity because we’ve never had to decide whether these characteristics were important and whether they needed to be protected, but they were implicitly protected by the way code works. Now that the code is changing, these characteristics are no longer guaranteed. Society now must explicitly decide through active legislation/regulation if it wants to preserve these characteristics.

This is our long term goal. But to accomplish it (and in order to see the competing values at issue and how the different “characteristics” of free speech support or thwart these values), we will need to push ourselves to look closer at some of the fundamental philosophical ideas behind self-government and “deliberative democracy”.

A Reading Outline

With that in mind, let me quickly outline our readings over the next few lessons.

Today, Lesson 21, I want to look at Sunstein’s opening chapters and then look at a few primary source documents that describe the ideas of “republican” government, the need for “deliberative democracy”, and why deliberation seems to demand an expansive right to free speech. Today we will try to see this in Rousseau and Kant.

We will continue this investigation in our next lesson, Lesson 22, by looking first at Mill’s defense of free speech and then turning to Habermas’s thoughts on the importance of free speech for a “deliberative democracy”. In Lesson 23, we will then look at Habermas’s worry about deliberative democracy’s slow death in the 20th century.

Then (in Lesson 24) I want to consider some of the reasons that the nascent (seemingly) un-regulated internet was hailed as a new champion of deliberative democracy.

Finally, we will come back to Sunstein (Lessons 25-28) to consider why the “un-regulated” Internet has not necessarily delivered what its early champions hoped for. Here we will look at some of the reasons Sunstein thinks the ideals of deliberative democracy and ideals of free expression paradoxically demand a kind of restraint or regulation imposed on speech. In short, because the code has changed, some of the desireable “characteristics” of speech – which were protected by the old medium – paradoxically can only be protected by limiting speech in certain respects.

Sunstein’s Daily Me

Ideals of Deliberative Democracy

Sunstein’s second chapter introduces us to the idea of deliberative democracy.

This is idea was motivated by a couple of concerns coming from two different directions.

On the one hand, framers of the constitution were motivated by the goal of self-rule. On the other hand, they were considerably concerned by the “mob”. How could the people rule, without the selfish, greedy, and power-hungry parts of human nature creating chaos and anarchy everywhere (precisely what Hobbes predicts would happen)?

Rousseau’s Social Contract

The architect of the solution adopted by the framers of the American constitution is Jean-Jacques Rousseau.

Rousseau had a very unique political ambition. One might even say a very paradoxical or even impossible ambition.

His goal, as he himself states, was:

“to find a form of association wherever one gets the benefits of coordinated political action but nevertheless always remains free as before.”

Stated otherwise: the goal was to find a form of association where everyone remains their own law giver; they remain “autonomous”. But at the same time, autonomous individuals would (almost magically it seems) choose for themselves a course of action that is equal and fair to everyone. Thus, while remaining self-ruled, social cooperation and coordination would result without anyone being coerced by a foreign power.

This was supposed to happen was through a special kind of founding agreement. Essentially (though dramatically simplified) everyone would agree (through a special founding contract) that whatever they choose for themselves would be permissible to everyone else.

Such an agreement removes the incentive for self-preferential treatment and results in everyone independently choosing the same thing.

The latter perspective is meant to illustrate the constraints that apply once someone has voluntarily entered the “Social Contract”.

Decisions made from this perspective are referred to by Rousseau as the “General Will”.

Private vs. General Will / Real Will

But Rousseau cannot be so naive as to think that people who make such an agreement will actually behave like angels or will not need a coercive force with the executive power to enforce rules.

How then can he consistently say that such people remain autonomous self-law givers?

Rousseau makes an important distinction between your “private will” (what Kant will a later identify as your animal inclination) and your “real will” what you want as a “rational being”. This “real will” aligns with the perspective of the “General Will”.

Thus when you act out of self-preference and violate the law, Rousseau considers this to be a self-violation of your own “real will”. It is your private inclination working against what you (as a rational autonomous being) “really” want.

And when the government enforces this law against you – though you may be kicking and screaming – he considers this enforcement to be self-willed: an act in which the community “forces you to be free”.

Rousseau and the Problem of the Legislator

Freedom in this sense is not “doing whatever you want” but doing what is “rational” or what can be willed from the perspective of the General Will. To follow your private will, to be driven by your animal instinct is precisely what it means to be “un-free”.

In theory this sounds rather nice, but a practical challenge that a community faces is how to identify the wishes of the General Will (what “Rationality” prescribes) given that we are all fallible, error-prone, and weak creatures.

Rousseau’s expresses this difficult in his description of the required “legislator” concluding that:

“It would take gods to give men laws”

So on the one hand, we have the idea of what an organized and peaceful society of self-ruled people would look like. But we face a difficulty about how to generate and identify the precepts and commands of the general will.

Said more informally: we may all agree that we want to follow laws that are fair and equitable, but we’re less clear on what these laws are and unsure of how we can trust that they are free from the biases and prejudices of those promulgating them.

(Keep this final challenge in mind as we move forward.)

Kant, What is Enlightenment

With this challenge in mind, let’s introduce Kant, specifically Kant’s very important essay “What is Enlightenment”. Here we will find ourselves circling back to idea of deliberation and why deliberation seems to encourage or even demand a very broad and expansive idea of freedom speech.

Kant and the Power of Dialectic

A critical connection here is that Kant thinks the “free use of public reason” would lead to a process of social “Deliberation” through which the perspective of the General Will, Rationality Itself, would slowly emerge.

We need to consider this more closely. It doesn’t seem obvious.

The process Kant and others after him have in mind is often referred to as “Dialectic”.

In dialectic, a “thesis” is asserted which may aim at the truth but miss its mark in someway. Thus, an opposing perspective is raised against this thesis, which is called an “antithesis”. The attempt to reconcile this conflict requires careful consideration, but when it is reconciled, a “synthesis” emerges, which is somehow truer or closer to the truth than the original “thesis”. It is through the process of being opposed and challenged that the “fuzziness” of the original “thesis” is improved.

Generally, if we assume that no one has access to a God’s eye view, that everyone has a partial glimpse of the truth, then everyone’s original “thesis” is imperfect and requires “refinement” through the opposition of an opposing perspective.

Thus dialectic needs expansive free speech.

It needs a large diversity of opinions to be made public so these different “theses” can be refined through opposition, and so that the truth can rise to the surface.

Holmes and Brandeis: Competing Reasons to Value Free Speech

In chapter 2 (pages 52-56), Sunstein introduces the opinions of Holmes and Brandeis who both argue in favor protecting free speech.

But as Sunstein notes, they do so for different reasons

At the present, critical for us is not the disagreement, but rather that at the time the Justices wrote these opinions, the difference mattered very little. Perhaps the difference was almost imperceptible.

For most of the history of “deliberative democracy”, the pursuit of the conditions necessary for “deliberation” (in this case the “free public use of reason”) was harmoniously aligned the goal of expanding the freedom of consumer choice.

The question for us is why? What is the about the traditional code or platform that supports speech that has preserved this happy harmony? How have the modalities of communication (its speed and scale) made it seem inevitable that “more speech” and “more choice” will always support the goals of deliberation?