December 18, 2003

Some Ideas on the Nature of Regulation in

(this post is a combined and rewritten version of posts appearing at DFMoore)

It's a dangerous place, this internet. The Demons of Democracy are everywhere. - DM

Cass Sunstein's discusses regulation and free speech with regards to the internet and it does a really good job at pointing out some of the more pressing issues. One of the main thrusts of the book is that "no regulation/no government" does not mean that speech is free. Quite the contrary, often times governments are needed as regulators in arenas specifically because the speech is not free.
Mr. Sunstein rejects all out the calls of some who would have a cyberspace free of government oversight:

Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.

I do contest with Mr. Sunstein over one point at least.
I'm not a lawyer, so it is probably dangerous taking on one of the most brilliant legal minds of our time, but I'll take my chances.

There is this passage:

[Television] Broadcasters could not exist, in their current form, if not for the fact that law and government are emphatically present. It is law and government that make it possible for them to make money in the first place.
What is true for broadcasters is also true for newspapers and magazines, though here the point is less obvious. Newspapers and magazines also benefit from government regulation through the grant of property rights, again protected at tax payers' expense... The most important reason is that the law has created a firm right of exclusion -- a legal power to exclude others -- and has given this right to both newspapers and magazines. The law is full prepared to back up that right of exclusion with both civil and criminal safeguards. No less than CBS and ABC, the Washington Post and Time are beneficiaries of legal regulation, preventing people from saying what they want to say where they want to say it.

(emphasis added) [Editor - earlier in the book, Mr. Sunstein had developed the idea that Freedom of Speech not only means that you can shout ideas from a corner, but that such a corner can be almost of your choosing - at least in a sufficiently vocal place where your voice can be heard by both detractors and those who agree with you - a sort-of targeted right of speech (my term)]

Television broadcasters are given their distribution channel. The airwaves are a public commodity that was given away to television stations. In the early 90s, government gave existing owners a right to produce digital television - Sen. Dole called this the "$70 billion giveaway." This gift, this guarantee of a distribution channel for information, this guaranteed-unpaid for monopoly over a particular band comes with responsibilities and, of course, with some public control and regulation. But with Newspapers and Magazines, the distribution is not given by the people. Exclusive newspaper rights to a city do not exist. Any newspaper with the proper funding can start up and challenge any other newspaper. The editors and publishers of the paper or magazine pay entirely for its printing and distribution. The exclusion of some people from publishing in a particular paper is merely an exercise of property rights. You have the right to say whatever it is that you want to say, but I, as a private entity, should not be forced to pay for you to say something that I disagree with. It's my money, my property, to be used as I see fit (with, of course, other proper limits on it - this should not be seen as an argument for unfettered laissez-faire capitalism. I actually do believe in some regulation of media enterprises).

So how does this extend to the internet? Mr. Sunstein uses an extension of this argument to show how we already have (through protection of property rights and speech) regulation on the internet. Governments protect us from viruses and protect domain names and addresses. But where Mr. Sunstein sees this as regulation, I see it as merely protection of property and speech. By having a government protect basic rights, we are not creating new regulations, merely having governments do what they are supposed to do ("That to secure these rights, Governments are instituted").

Some may see my argument as merely a semantic one, but I always find it important to distinguish what actually are rights and what are not. The book ( is a really good book that makes many excellent points. Mr. Sunstein argues how the internet, while it does connect society and people in ways that hasn't been seen before, it also divides people, as they read each morning the "Daily Me", hearing echoes only of their own voices and making themselves more and more extreme in their opinions. Hearing voices that you don't agree with is as important to democracy and as fundamental to freedom of speech as hearing voices that you do agree with.

I wonder if Mr. Sunstein was thinking of blogs and RSS/XML newsreaders when he wrote about this. Because often times that what blogs become. An interlocking community of blogs, whose authors all read each other, very many times do just echo each other, growing more and more obstinate in their mutual beliefs.

As I said, it's a dangerous place, this internet. The Demons of Democracy are everywhere.

The (hopefully) future Supreme Court Justice and current brilliant legal mind sent me an email in response.

Many thanks. An excellent question. Here's a crack at an answer:
What makes property "my" property? How do I know that my book, or my website, or my domain name is actually *mine*? I could just assert that it is a mine and claim a right to it. But if that's all I did, it's unlikely to be mine, unless I'm strong or well-armed. It becomes mine only if government and law are willing to create property rights and to protect them. Now I agree that this is a fundamental function of government -- and that governments are created to secure property rights. The only point is that this is a function of government -- and that it is a form of regulation, because it imposes all sorts of regulatory controls on all sorts of people. E.g., if people want to use my website, or my book, and try to do that without my permission, the government will regulate them via both civil and criminal law. That's good -- but it's still regulatory.

-- Hope that helps and many thanks for the generous and kind words.

-- Cass Sunstein

Good answer I think. Any reply I can think of starts waxing into metaphysics and out of law, and what he does say makes a ton of sense.
The argument against is that "ownership" has to, in a metaphysical/moral philosophy sense, mean something more than "has control over". Unfortunately, if you do not "have control over" something then any claim to ownership will simply be in vain. Government, the argument goes, keeps such claims valid - through regulation and enforcement.


Posted by DFMoore at December 18, 2003 07:33 AM

Exactly, the government regulation in that case is not on the property owner, but on the rest of us. Great post!

Posted by: Tuning Spork at December 18, 2003 06:08 PM

Property rights are, well, commanded, in the 10th Commandment ('Thou shall not covet...'). Or for the less reverent, P.J. O'Rourke:

"The Tenth Commandment sends a message to socialists, to egalitarians, to people obsessed with fairness, to American presidential candidates in the year 2000&emdash;to everyone who believes that wealth should be redistributed. And the message is clear and concise: Go to hell."

Pursuit of 'Happiness' was originally written Pursuit of 'Property'. (Here's a brief view of various Founders:

As for echo chambering, I don't waste much time on lefty sites; they are quoted (and fisked) pretty well...and those ideas are well-disseminated in the "Mainstream Press". And I see lots of stuff I disagree with on righty blogs.

Posted by: Noel at December 18, 2003 07:04 PM

While we'er on the Tenth Commandment... I thought I would toss in a thought.

I'm good friends with a fellow who's an Orthodox Jew. He's shared with me some of the better teachings from a local Rabbi, (Rabbi David Fohrman at

To make a long story short, the teaching on the 10 Commandments is that it sets up a structure of 5 principles... almost spheres of relationships and how they should impact our everyday lives.

Coveting, according to Rabbi Fohrman, mirrors the command to honor your parents. Coveting, you see, is not jealousy, but a disdain for yourself. It is wanting to BE somebody else by assuming all of the things in his or her life. (It mirors the "honor your parents" in that you are supposed to respect those who brought you into being and not consider them as a peer like you... God made them your creators, so they are not your peers.)

Anyway, I just thought you might find that interesting.

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