Speaking of the First Amendment: Cass Sunstein’s Arms Control Theory of the First Amendment

​Cass Sunstein’s argument that the First Amendment functions as an “arms control agreement” is a sharp, compelling analogy. In a world where everyone wants to censor someone else—whether it’s banning critical race theory or eliminating speech that offends on campuses—Sunstein argues that the Constitution forces all parties to “lay down their arms.”
 
The First Amendment, in Sunstein’s view, serves as a neutral zone, preventing any one group from suppressing another’s speech, no matter how repugnant that speech might seem to them.
 
Sunstein draws a powerful parallel to the 1943 case of *West Virginia State Board of Education v. Barnette*. In that case, Justice Robert Jackson wrote what Sunstein calls “the greatest opinion in the history of the Supreme Court.” Jackson warned, “Those who begin coercive elimination of dissent soon find themselves exterminating dissenters.” In a clear rebuke to authoritarianism, Jackson argued that “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.”
 
For Sunstein, this is the essence of the arms control agreement: no viewpoint may be forbidden, no matter how tempting it might be to do so.
 
While Sunstein acknowledges that this broad understanding of the First Amendment is not easily squared with its original meaning, he points out that the robust protections we now have evolved in response to historical moments of danger, like World War II and the 1960s. “It is perhaps unsurprising that a robust understanding of free speech would develop during the war against fascism,” he writes, and that it would solidify during the fierce debates of the 1960s.
 
Sunstein’s advice for today? College administrators, and others in positions of power, “should avoid the temptation” to suppress views they find beyond the pale. They “should lay down their arms.” If we’re going to have a constitutional arms control agreement, everyone needs to disarm—especially those most eager to wield the weapons of censorship. After all, no one should have a monopoly on banning speech. That would be the ultimate arms race.