Constitutional Right and Normative Frameworks: The Information Age

Lingering in the background of many of the articles appearing in The Constitution in 2020 is a debate about the rhetorical framing of rights and policy.  The debate is perhaps nowhere more evident than in the transition from Robert Post’s "A Progressive Perspective on Freedom of Speech" to Yochai Benkler’s "Information, Structures, and the Constitution of American Society." The authors of these two articles agree on the underlying goals of information policy: that it should encourage the public to participate in a democratic culture, foster a democratic society, and promote democratic legitimacy.  (Benkler assumes that we should “strive for a more democratic society, where individuals are ever more free and equal citizens”  (Benkler at 195). Post notes that “[t]he First Amendment safeguards the ability of persons to participate in the formation of public opinion so as to preserve the democratic legitimacy of our government”  (Post at 182). Both Benkler and Post train their arguments on similar countervailing interests (the commercial and the individual) and come to similar conclusions (generally favoring the individual).)

Despite their similar goals, Post and Benkler present markedly different ways of reaching those goals.  These different strategies create a tension, reflecting the authors’ divergent agendas.