Swinburne Law School; New York Law School
California Law Review, Forthcoming
This Review Essay examines a recent trend in so-called "second generation" legal commentary about the Internet. This trend suggests that, for all that the Internet is an un-paralleled communication medium and a means of engaging in global e-commerce, it is not unmitigated force for good. Instead, the Net poses a fundamental danger to democracy. This trend is found to some degree in works by well-known cyberlaw theorists like Lawrence Lessig, Andrew Shapiro, and Neil Weinstock Netanel, but the most recent and most troubling criticism is found in Professor Cass Sunstein's REPUBLIC.COM.
In this book, Professor Sunstein argues that perfect filtering of information on the Internet is going to lead to a fractured communications environment. He suggests that this will lead to group polarization, cascades of false information, and a concomitant rise in extremism. Governmental regulation of the Internet to reduce these features is therefore warranted, and desirable. He suggests that the appropriate regulatory responses should include setting up or supporting public environments for deliberation and debate on the Net, along with a series of disclosure and "must carry" rules of various descriptions.
This Essay finds fault with almost every major feature of Sunstein's argument. First, it dismisses his assumptions that perfect filtering on the Net is either likely to occur, is possible in the sense that he suggests, or is significantly different from the media filtering which we already experience. Second, it argues that Sunstein mis-applies the social psychology work on how groups polarize to more extreme positions. Contrary to the fundamental basis of REPUBLIC.COM, the research on group polarization does not inevitably lead to the conclusion that the Internet creates extremist communications or behavior. Third, it suggests that Sunstein's theory of governance is controversial, and that important features of cyberlibertarian governance theories seriously undermine his position. And finally, it criticizes Sunstein's proposals for reform as utterly meritless. These proposals are either contradicted by his own earlier "perfect filtering" argument, or by his misunderstanding of the Net as a local broadcast medium.
Number of Pages in PDF File: 50
Keywords: Internet governance, democratic theory, social psychology
Date posted: December 31, 2001