Guest Post by Alec Rawls
As Congress considers vastly expanding the power of copyright holders to shut down fair use of their intellectual property, this is a good time to remember the other activities that Obama’s “regulatory czar” Cass Sunstein wants to shut down using the tools of copyright protection. For a couple of years now, Sunstein has been advocating that the “notice and take down” model from copyright law should be used against rumors and conspiracy theories, “to achieve the optimal chilling effect.”
What kinds of conspiracy theories does Sunstein want to suppress by law? Here’s one:
… that the theory of global warming is a deliberate fraud. [From page 4 of Sunstein’s 2008 “Conspiracy Theories” paper.]
Freedom of speech requires scope for error
At present, limits on speech are governed by libel law. For statements about public figures, libel requires not just that an accusation must be false, but that it must have been:
… made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard to whether it was false or not. [New York Times v. Sullivan, 1964]
The purpose of the “actual malice” standard is to leave wide latitude for errant statements, which free public debate obviously requires. Sunstein thinks that room-for error stuff is given too much weight. He’d like it to see errant statements expunged. From Sunstein’s 2009 book On Rumors (page 78):
On the Internet in particular, people might have a right to ‘notice and take down.’ [T]hose who run websites would be obliged to take down falsehoods upon notice.
Further, “propagators” would face a “liability to establish what is actually true” (ibid).
Suppose you are a simple public-spirited blogger, trying to expose how Michael Mann, Phil Jones, Tom Wigley, and other Team members conspire to suppress the research and destroy the careers of those who challenge their consensus views. If Sunstein gets his way, Team members will only have to issue you a takedown notice, and if you want your post to stay up, you’ll have to go to court and win a judgment that your version of events is correct.
Today that should be doable, at great expense. But before the first and second batches of climategate emails were released there were only tales of retaliation, with one person’s word against another’s. Thus at the most critical juncture, when documentary proofs of The Team’s vendettas were not yet public, even a person who was willing to run Sunstein’s legal gauntlet might well have been held by a judge to be in error.
Escalation
The path from Sunstein’s 2008 “Conspiracy Theories” article to his 2009 On Rumors book is straightforward. According to Sunstein’s 2008 definition, a conspiracy theory is very close to a potentially libelous rumor:
… a conspiracy theory can generally be counted as such if it is an effort to explain some event or practice by reference to the machinations of powerful people, who have also managed to conceal their role. [Abstract]
At this time, Sunstein’s “main policy idea” was that:
government should engage in cognitive infiltration of the groups that produce conspiracy theories….
… government agents or their allies (acting either virtually or in real space, and either openly or anonymously) will undermine the crippled epistemology of those who subscribe to such theories. [“Conspiracy Theories,” pages 14-15]
Government funding of trolls? Sounds like a bad joke, but Sunstein quickly upped the ante. In On Rumors he followed the conspiracy theory as slanderous rumor angle as a way to justify adopting the “notice and take down” artillery from copyright law. So Sunstein already has a history of escalation in his legal crusade against ideas he does not like. If SOPA and PIPA are enacted and the machinery of copyright protection becomes vastly more censorious, its pretty much a certainty that Sunstein will want to use these more powerful tools against rumors and conspiracy theories as well.
Sunstein’s target has always been the very core of the First Amendment: the most protected political speech
In On Rumors, the rumor that Sunstein seems most intent on suppressing is the accusation, leveled during the 2008 election campaign, that Barack Obama “pals around with terrorists.” (“Look Inside” page 3.) Sunstein fails to note that the “palling around with terrorists” language was introduced by the opposing vice presidential candidate, Governor Sarah Palin (who was implicating Obama’s relationship with domestic terrorist Bill Ayers). Instead Sunstein focuses his ire on “right wing websites” that make “hateful remarks about the alleged relationship between Barack Obama and the former radical Bill Ayers,” singling out Sean Hannity for making hay out of Obama’s “alleged associations” (pages 13-14).
What could possibly be more important than whether a candidate for president does indeed “pal around with terrorists”? Of all the subjects to declare off limits, this one is right up there with whether the anti-CO2 alarmists who are trying to unplug the modern world are telling the truth. And Sunstein’s own bias on the matter could hardly be more blatant. Bill Ayers is a “former” radical? Bill “I don’t regret setting bombs” Ayers? Bill “we didn’t do enough” Ayers?
For the facts of the Obama-Ayers relationship, Sunstein apparently accepts Obama’s campaign dismissal of Ayers as just “a guy who lives in my neighborhood.” In fact their relationship was long and deep. Obama’s political career was launched via a fundraiser in Bill Ayers’ living room; Obama was appointed the first chairman of the Ayers-founded Annenberg Challenge, almost certainly at Ayers’ request; Ayers and Obama served together on the board of the Woods Foundation, distributing money to radical left-wing causes; and it has now been reported by full-access White House biographer Christopher Andersen (and confirmed by Bill Ayers) that Ayers actually ghost wrote Obama’s first book Dreams of My Father.
Whenever free speech is attacked, the real purpose is to cover up the truth. Not that Sunstein himself knows the truth about anything. He just knows what he wants to suppress, which is exactly why government must never have this power.
Soulmates (cue music)
You, on the other hand, are the enemy
In climate science, there is no avoiding “reference to the machinations of powerful people, who have also managed to conceal their role.” The Team has always been sloppy about concealing its machinations, but that doesn’t stop Sunstein from using climate skepticism as an exemplar of pernicious conspiracy theorizing, and his goal is perfectly explicit: he wants the state to take aggressive action to make it easier for our powerful government funded scientists to conceal their machinations.
Cass Sunstein may be the most illiberal man ever to present himself as a liberal. He also holds the most powerful regulatory position in existence, overseeing every federal regulation. For a sample of his handiwork, realize that he oversaw the EPA’s recently issued transport and MACT rules, which will shut down 8% of current U.S. electricity generation.
Maybe you don’t think it’s a good idea to unplug critical energy infrastructure just to achieve marginal further reductions in micro-particulates that have already fallen to well below half of their 1980 levels:
Sorry but there is no place in Sunstein’s EPA for such doubts and, as far as he is concerned, no place for them in the realm of public debate either. The environmental bureaucracy has everyone’s best interest at heart. To question that is the very definition of conspiracy mongering.
Next people will be claiming that Obama actually intends for energy prices to “necessarily skyrocket.” Such vile rumors need to be silenced, and this can easily be done. Once the SOPA/PIPA machinery is in place, it will only take one line in some future omnibus bill to extend it from copyright to criticism.
But Temp we all know you a re a right wing moron who’s knuckles are sore from dragging them on the ground. Who wrote your post? Last time I heard you were still finger painting. You would not recognise hate crime if it bit you on the arse.
DW thanks for the explanation of what a Troll is, thanks to Temp for elegantly displaying the process in action.
[Once something is deleted it is gone. Deleted comments are not saved. My apologies if you didn’t mean it like it sounded. ~dbs, mod.]
Thank you moderator. But just to confirm, as someone with Jewish parentage, who worked in Israel for quite a while, who is a classic Christian left wing European, lets face it, I’d be pretty unlikely to write anything anti-semitic! Having noted the blind anger on from the recent post by Temp, I do wonder whether my name is being hijacked in some way, is it possible ? I must admit I have had to write to Anthony previously to point out that someone was using my name to post information which I found extremely offensive. Is this possible?
The only consequences that need to be considered are the very direct and narrow ones that have been hashed over by the Supreme Court long ago and remain standing as reasonable with regard to any person’s immediate physical safety such as falsely yelling fire in a crowded theater. You seem intent on broadening the concept to risks that are neither immediate nor necessarily even involve physical harm. Anyone can claim that another ‘s person’s expression of political position has to be muzzled because it is ‘hate speech’. When you give the muzzling power to the one making the claim they will, as surely as the sun will rise tomorrow, use it to silence their political opponents – beginning hopefully with those very apparatchiks who first advocated such limitations on our 1st Amendment rights to ‘protect’ people from ‘hate speech’. Isn’t that similar to what Lenin did with the intellectuals who complained about his power after they helped him grab it or to what Hitler did with workers who helped him thinking they would later share power as members of one big happy union?
So yes! “However scurrilous” it is, like I already stated to you before, my words are no threat to your LIBERTY nor yours to mine no matter how ugly or scurrilous they may be. Such is far safer than the consequence of trying to ‘do’ anything about it which can only involve trusting someone else to have your best interest at heart concerning who is allowed to speak ‘freely’. No thanks, I’m the only person I can trust to keep my best interest at heart so I’d rather keep mt 1st Amendment right to free speech – warts and all.
Typical radical leftist drivel. *Homosexuals are just as free to marry someone of complimentary gender as a heterosexual – ask Jim McGreevey, nobody stopped him. *What ‘choice’ should new lives in the womb be afforded and give me ONE reason why I should not advocate for them considering I was adopted at birth in the 50’s? *The poverty that kills is in the socialist hell holes of third world dictatorships where everyone is poor because free market capitalism is forbidden. No capitalism means that there is no profit in creating a surplus and therefore no surplus to share with those who are truly unable to carry their own weight such as sick, disabled and elderly people.
Myrrh says:
January 22, 2012 at 4:29 am
Anton says:
January 21, 2012 at 9:07 pm
===
Anton – do you mean Noah?
__________
No, I mean Moses. The Noah story is pagan rehash too. Almost everything in the OT and NT is. By the way, posting such observations on some sites can incite fury, though I don’t know why.
As for the point of this entire thread, there has to be some way of balancing copyright interests with those of Web site publishers, without trampling either. Some Web sites engage in terrible libel, or reprint defamations without attribution, and deserve to be shut down. But, what can be done about those that reprint defamations and do give their sources? How many “facts” these days are fallacies that have acquired the appearance of fact by repetition, with those quoting them citing each other as references?
Plagiarism is always bad. There is a wonderful skeptical site devoted to exposing the plagiarisms in AGW literature. I can’t think of any branch of science other than “climate science” where plagiarism is not only tolerated, but the norm.
Anton
Thanks Mike M.
I may not agree with all your sentiments, but yours a well thought out and interesting post, far removed from the many ad hominem attacks some posters use instead of informed debate.
For the record, I believe in freedom of expression, as long as that expression does not harm others. Same for expressions of religion, sexuality or any of the other factors that identify us as humans. So if someone is targeted for derogatory comments because they are black, I believe that is wrong because a persons colour is not their decision. But when I get hate-mail and obnoxious allegations because of my left wing European views, well I have to take that on the chin, I may not like it, but that is the price I have to pay for being honest about my political stance. I get the same from other people for my view of the undermining of climate change science, But I think I can live with that!
Mike M.
Bit more leftist drivel for supplied by the CIA on infant mortality. The USA is 47th in the world in terms of infant mortality, 10 place behind Cuba and many other apparently socialist countries.
https://www.cia.gov/library/publications/the-world-factbook/rankorder/2091rank.html
Good to know however that there are people in the USA trying to do something about that, it would be great if the effort was also invested in maintaining that life after people were born. I was also was adopted in the 50s! and are grateful for that most valuable of left wing ideas, the NHS. I can highly recommend it. Views on free speech, as I mentioned owe more to our own views of life than the subject in hand.
The farther to the Left a person or a government is, the more intent they are on restricting free speech. Hitler, Stalin, Venezuela, Cuba, Obama, China and North Korea all want to restrict free speech. Some more than others perhaps, but the mindset is the same: they want to censor dissenting views.
If I had my way, I would be giving a take-down notice to all states or state bar associations that oversee Mr. Sunstein’s license, directing them to “take down” his license to practice law. A thoroughly and insidiously evil man.
To expand upon my earlier remarks, the reason I propose to strip Cass Sunstein of his license to practice law is that the very fact that he would implement a system that would leave it in the hands of one or a few individuals to decide what is true and what is false for the purpose of “chilling” either a rumor or a dissenting view is in itself flagrantly anti-constitutional and anti-First Amendment. As such, Sunstein violates an oath I know he took (as well as one I took) when he first received his law license to “uphold” the Constitution of the United States (along with upholding whatever state constitutions he received his law license from). Therefore, I would strip him of his license to practice law. Implementation of such a system would also, in my mind, justify a revolution against any government that was responsible for the deed.
Garethman says:
January 22, 2012 at 9:02 am
You are targeted for “derogatory” posts because you thoughtlessly repeat the ill-conceived mantras and principles of a mindless, tired ideology that has been shown by history to be thoroughly disreputable and a failure when actually tried. It is why folks like Cass Sunstein suggest the form of censorship described in this post. They are actually afraid to confront the historical reality they always like to delude themselves into thinking they are attuned to; instead, they cling to the phony history they think of as a “law.”
Try a better line of reasoning for your posts sometime. We don’t have to always agree or think alike, mind you. Just try a better way of thinking.
Garethman says:
January 22, 2012 at 9:15 am
One more thing. Your CIA information on infant mortality is both informative and useless. First, the U.S. is currently 41st, at 6.37 deaths per 1,000 live births. Being 41st in the world in that category is, as Bill Buckley once pointed out, like finishing 41st in a ski race. The differences at that level are generally so small as to be inconclusive and can be affected by many factors, such as when you define a live birth as occurring in that country (it is also true, by the way, that many of the unwed mother births in this country result in mortality, for many reasons having little to do with socialism or the lack thereof). Especially since Cuba’s statistics are so tainted by the way such births can be categorized in the propaganda world (we are aware of evidence that Cuba overstates its accomplishments in the health care field; check Google on the various responses to Michael Moore’s film on health care and you will see what Cuban doctors who left there really have to say about their health care system).
Hi Larry, you make an interesting point :
Try a better line of reasoning for your posts sometime. We don’t have to always agree or think alike, mind you. Just try a better way of thinking.
Does that mean thinking more like a right wing republican and less like a left wing European?
Dont worry to much about the insults, I’ve got used to classic right wing tactics over the years! I do like reasonable debate however. Apologies for my “incorrect” thinking.
Larry, good to read your post.
With regard to infant mortality rates, I know figures can be manipulated, and some socialist countries are not famed for their honesty. But lets compare that hotbed of socialism, the UK NHS and the stats from the USA. For every thousand live births in our countries, two more children per thousand will die in the USA than the UK. I hold a senior position within the NHS so I can vouch for our stats, and yours are supplied by an American government agency, so they are probably reliable. Now we could say, it’s like a Ski race, it does not matter, they are pretty close. Pretty logical. But if you are a parent of one of those thousands of children who needlessly die the comparison is rather less useful. I think free speech allows me to suggest it’s a strange paradox that right wing proponents in the US fight against abortion, but also fight against health care for all, free at the point of delivery and funded through taxes. An idea which reduced our mortality and improved the health of our population dramatically when we needed it. So if the right wing crew are really pro life, why are they so supportive of issues like the death penalty and the right to die due to not being able to afford decent healthcare?
To many Europeans this is perplexing and part of the great paradox that is the USA. No doubt the same question on differing subjects puzzle Americans regarding our cultures, but hopefully you understand that you and I are not evil or bad, we are just different. Life, like free speech is a constant.
A strange thing does occur, Americans who emigrate to the UK, and some settle in our village, change in a subtle ways. When I ask them these questions they tell me that they used to understand, but a couple of years living in a UK village has changed them, and they are now as perplexed as the rest of us over these things. One of them, an ex-republican voter (whisper it closely) even voted for the UK Labour party. Weird or what?
Garethman says:
January 22, 2012 at 9:15 am
“Bit more leftist drivel for supplied by the CIA on infant mortality. The USA is 47th in the world in terms of infant mortality, 10 place behind Cuba and many other apparently socialist countries.”
This is absolutely not true. The United States is one of the only countries in the world that counts the deaths of premature babies in its infant mortality figures. Many countries don’t even count as infant mortalities the deaths of babies before a certain number of days, and in Third World countries, such as Cuba, most births are at home, and most infant deaths are not recorded. The United States is one of the few places on Earth where heroic efforts and vast amounts of money are used to save the lives of premature babies. In most places, they are left to die.
In the United States, the deaths of pregnant women from all causes (including accidents, murders, diseases, and botched abortions) are counted as maternity-related deaths (which also gives us seemingly bad maternal mortality statistics), and the deaths of WANTED unborn babies, from all causes, are counted as infant mortalities. No other country in the world counts such deaths as maternal mortalities or infant mortalities.
Many countries, especially China, Russia, Cuba, North Korea, etc., blatantly falsify their mortality statistics. The U.N. knows this, but keeps the myth going. Physicians in the United States have been yelling about this for years.
When apples are compared to apples and oranges to oranges, the maternal and infant mortality rates in the United States are among, if not the, lowest in the world.
Nick sez:
The only way we are going to get our society back is for these people to stay in power another term and really wreck the place. The population wont do it again for another couple of generations.
I have been considering, lately, myself, whether it would be better in the long run to get Obama the Elitist Totalitarian out of office now, or whether his reign for 4 more years would finally illuminate to everyone how this little commuinist utopia fantasy is very lousy, very dangerous, and nothing near a Constitutional United States.
It may be better in the long run for these marxists to steer us into an even more lousy place. So many right now simply feel like things are going great. Huge swaths of the populace believe that we need to follow Sunstein ideas like censoring climate skeptics, and cannot tolerate a discussion. The polarizing politics of racist “liberals” continues, and we have not yet all genreally grasped how bad it is for Holder to excuse baton-wielding Black Panthers at the polls.
Emboldened, those ppl under the name of my former party are going to be mor extreme than ever.
In all of this, I don’t believe any of them should be censored. Sunstein should publish as much as he can. That way, we can know exactly what he, and his elitsit totalitarian colleagues, like science czar Holdren, truly have in mind for us once the laws innocuously get moved into place.
the problem is that these clowns(bureaucrats + politicians) like sunstein, obama, genachowski, the mayors claiming sanctuary cities, the governors shoving thru 80-mph “high speed” rail to pay off union cronies, etc aren’t held accountable for their actions while in office or they wouldn’t even consider floating ideas like this. Until there are consequences (jail) they will keep on with the power grab. But the anger is building again. Nov 2010 was nothing compared to what’s gonna happen in 2012. Its coming.
Smokey says:
January 22, 2012 at 9:42 am
The farther to the Left a person or a government is, the more intent they are on restricting free speech. Hitler, Stalin, Venezuela, Cuba, Obama, China and North Korea all want to restrict free speech. Some more than others perhaps, but the mindset is the same: they want to censor dissenting views.
Who brought in the Patriot Act to its conclusion? Left or Right makes no difference, Italian Fascism was lauded by Hitler as good interpretation of Marxist ideology. Left or right two sides of the same coin, that’s why the US wasn’t set up as a democracy..
http://www.peacetakescourage.com/forum/viewtopic.php?f=3&t=162
http://www.nolanchart.com/article3260-the-importance-of-the-patriot-act.html
I think all our governments are under the one centralist control or another – the forced second Lisbon referendum in Ireland was set up to fiddle the results, no longer a republic as sovereignty given up to the unelected EU and in a worse position now than when Britain’s fiefdom, at least then the dictator overlords were known.
I do hope you can reclaim your Constitution, now hidden by sleight of hand in the idea of spreading ‘western democracy and elections’.. We really need you to educate the rest of us on just how brilliant it is.
In pursuit of free speech it’s a great talent for a country to be able to poke fun at itself. Here is one American export, very popular over here who epitomises that great asset. http://www.youtube.com/watch?v=wn9DSeDxnnI
Hi Anton, thanks for that, maybe your post shows how stats can be manipulated. I used figures supplied by an American government agency so I’d assumed they were reasonably accurate, can you reference any other figures which support your point? Interestingly while American physicians are annoyed, are they not opposing someone right to free speech in producing figures which they feel reflect the reality of the situation?
Garethman,
In response, let’s look at who the Republican candidate is going to run against.
Thanks Smokey! Very good.
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Curiousgeorge says:
January 20, 2012 at 3:52 pm
@ur momisugly Steve C says:
January 20, 2012 at 2:17 pm
Nick, I (and millions of others) share that feeling, but when it does come to a head, the average government has an awful lot more armament than the average populace. History has a lot of examples of how that one plays out: ultimately, there’s a very final way of shutting people up pour décourager les autres. Be very careful what you wish for.
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I have held and have been arguing for the set of principals, of freedom of choice, speech, press. media, financial and political since I realised as a Teenager that collectivism and dictatorship of thought and/or actrion is against human nature. Which, by the way, is a while 🙂
I understand the extrapolation and ultimate end game of what I’m thinking leads to. I’m prepared to deal with all the consequences.
The question is not, will it get there? But will the rest of the population be able to deal with it.
Mind you, there is an argument for it happening so slowly that the population is being assimulated into relinquishing their freedoms will without much fight.
In Mr. Rawls’ excellent article, and in this whole thread, I never noticed the 1st Amendment’s explicit language. So here it is, short and sweet:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. [My emphasis]
See how very far away from our founding legal document we’ve come? Down is Up, War is Peace, Ignorance is Strength, Evil is Good, and Congress can Censor Free Speech.
Hello Garethman,
It’s been several years since I was involved in comparing mortality statistics, so I can’t give you any links; at least not tonight. The U.N. and WHO do not have a free speech right to fabricate or falsify statistics.
You can check with your own government to see what does and does not count as a live birth over there. You may be shocked. The U.S. has the most meticulous and accurate infant mortality statistics of any country in the world. Any premature baby born here, even if only takes one breath and dies, is counted as a live birth. Hence, the seemingly bad statistics. I don’t know of any other country that does this.
Keep in mind also that many countries sterilize felons and drug addicts, while here, even suggesting sterilization meets with screams of indignation from feminists claiming that reproductive rights include the right for drug addicts and criminals to reproduce or abort to their hearts’ content.
I believe in socialized medicine for everyone, animals included. It really bothers me to think about all the suffering pets in this country who don’t get needed medical or dental care because their humans can’t afford it. I don’t worry about humans so much because in the United States no human in need of medical care can be turned away from a hospital for lack of funds.
Most Americans don’t realize that “private” insurance itself is a form of socialized medicine, albeit on a small scale, with all insurance pool members paying in, but only a fraction getting medical care each year. This is no different from paying into a government pool, though it does cut out the middle man (the insurance company), and theoretically, at least, should be far more cost-effective. Of course, if government bureaucrats take all the money for themselves, then any savings will be immediately wiped out.
Thanks Anton, I’ll check out the stats. It could be very useful information, I shall certainly work on some of these stats this week.. With ref to the health insurance, cutting out the middle man does indeed produce more efficient health funding, the downside is that when health care is privatised or commercialised the provider undertakes the service to make a profit, it has to to rationalise it’s existence, governments don’t have to do this, at least most of them.
The most efficient system of healthcare in the developed world is the UK NHS, although we never stop trying to improve it’s efficiency further. We spend about 8% of our GDP on funding it through compulsory taxes. Some people though still take extra insurance for private care for an even better service.( single rooms, better catering etc) The USA spends about 13.9 but does not provide universal healthcare free at the point of delivery. It is thought that much of the extra cash spent by the USA goes to paying shareholders and investors, as well as the administration costs of a complex system. I’m not sure the NHS model would work in the USA any more than it would work on a European wide basis, however I certainly think it would be worth looking at on a state by state and not dismissing it on socialist grounds without seriously weighing up the economic advantages of such a service. It’s worth thinking of it in terms of how education is provided, free at the point of delivery, at least as far as University.
ps, we don’t have socialised medicine for pets, while I respect your worries about animals, we differentiate the right of humans and animals with no change in sight at the time of writing.