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California Law Review


A recent trend in so-called "second generation" legal commentary about the Internet suggests that, though it is an unparalleled communication medium and a means of engaging in global e-commerce, it is not an unmitigated force for good. Instead, the Net poses a fundamental danger to democracy. This trend takes shape in works by well-known cyberlaw theorists like Lawrence Lessig, Andrew Shapiro, and Neil Weinstock Netanel, but the most recent and most troubling criticism lies in Professor Cass Sunstein 's In this book, Professor Sunstein argues that perfect filtering of information on the Internet will lead to a fractured communications environment. He suggests that this fracturing 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. This Review 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 that we already experience. Second, it argues that Sunstein misapplies the social psychology literature on group polarization toward more extreme positions. Contrary to the fundamental basis of, 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 and historicist governance theories seriously undermine his position. And finally, this Review 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.

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