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.
Anton says:
January 20, 2012 at 6:41 am
NOW you’re getting into conspiracy theories! But enquiring minds still want to know! (And unless we (repeatedly) ask the question, we’ll never get a truthful answer.)
The simple point is, what people belief in, is not a matter of governments.
Looking for the basics of science, philosophy, it is to be recognized as true, that something cannot be true and in the same time be untrue. Physicians respect this recognition, timeless and alocal, in
one order of nature. There is no difference in CO2 molecules from Iran or Israel.
Looking for the basics of science, philosophy, it can be recognized that morality is different to ethics. Morality is a non timeless and local social convention of old man. Ethics is the science of the inalienable dignity of all living substance
From this, morality law is simple incompatible to the timeless and alocal one order of nature; it is in contradiction to the one order of nature.
Democracy is not alienable, because it is the inseparable yourself.
He, she, who gives his, her voice to politicians, have no voice anymore.
Ethics (and science) is linear and not corruptible. Politics is nonlinear and corruptible.
Good news: Times are changing. Bad news: Times are changing.
Good news: Politics cannot change the (one) nature of ethics.
V.
Rhys Jaggar says:
“Free speech does not mean saying that ‘Barack Obama’s wife is a frigid cow who spawned two vile pot smoking heroin-injecting nignogs’ is acceptable.”
Ummm yes it does…
You have two massive logical fails in your argument.
First being that the truth should be secondary to treating the elite as sacred. If indeed obama wife is a frigid cow who spawned two vile pot smoking heroin-injecting nignogs then it should be said far and wide for all to hear and see. The truth, reality, facts should never take a back seat to a government or personal agenda… YOU argue it should.
Your second logical failure is that you assume the government is the only group that know “good” speech from “bad” speech and that it should be the only one to control said “speech”.
If a jew wrote in 1936 that hitler was a mass murdering, jew hating, dictator who was bent on controlling the world… YOU would demand he be put in jail for libel(or lunatic asylum). YOU would of course gotten your way and did.
If a jew wrote in 1920s that stalin was a mass murdering, jew hating, dictator who was bent on controlling the world and would send 30 million people to they’re deaths. YOU would demand he be put in jail for libel(or lunatic asylum). YOU would of course gotten your way and did.
If a chinese farm wrote in the 1950s that mao was a mass murdering, dictator who was bent on controlling the world and would send 50 million people to they’re deaths. YOU would demand he be put in jail for libel(or lunatic asylum). YOU would of course gotten your way and did.
If you want to see your version of “free speech” you need only look at china, russia, iran and many other places. THEY AGREE WITH YOU.
We’ve dealt with dangerous propagators of tyranny like Sunstein before. Who does Sunstein imagine will fight for him in his bid to move us toward his North Korean political utopia?
We should change the text on the image to “Free Speech Free Zone”
~More Soylent Green!
I can easily see how this could be used to suppress skepticism.
Since [supposedly] 97 % of scientists agree on CAGW any questioning of CAGW must be based on their being a conspiracy to hide the truth.
Calling CAGW a fraud could get your website shut down.
Given what the AP fact checkers said about Obama’s last speech, you could use this to shut down everything coming out of the White House. But that ain’t gonna happen, so you know what the intent of this proposal really is.
~More Soylent Green!
At 6:41 AM on 20 January, Anton observes that Barry Soebarkah (because, let’s all remember, he was legally adopted under that name when he was adopted by Lolo Soetoro to become a citizen of the Republic of Indonesia and neither naturalized as a U.S. citizen or changed his legal name back to “Barack Hussein Obama II” when he was shipped to Hawaii to grow up in the care of his maternal grandparents):
Well, I’m shocked, simply shocked, to see that moderator “REP” allowed you to observe that our Mombasa Messiah “…is a wholesale fabrication” after this moderator had twice stricken my own observation that:
As I’d mentioned before, observation of a plain fact of reality – endorsed by “Wiki-bloody-pedia,” no less in the obtaining article on Stanley Ann Dunham where it can be read:
– can hardly be considered “over the top” and therefore subject to censorship.
I find it altogether delightful that in the comments of an article pertinent to our Mombasa Messiah’s Ministry of Truth czar’s determination to use SOPA and PIPA to obliterate freedom of speech in our republic, the appointed monitor should be deleting my posts’ contents when what I’m posting is well-supported fact.
Tsk. How Joe-Romm-ish.
[REPLY: Tucci, you are snipped for defamatory language, not “facts”. -REP]
We are an exceptional and accepting people. We tolerate and allow liars as government leaders and often re-elect them. If we start clamping down to censor purveyors of untruths, we would have no government as we would have to censor and shut down Washington D.C.
Who has the power to determine “truth” ?
If lies can’t be published that power would be awesome !
Here comes 1984 the society not the book.
I gather that insofar as copyright and SOPA are concerned, the current leadership wouldn’t mind using them – if they could – to enable Mann, the author, to give notice to McIntyre, the planet killer (/s).
Any thought to giving the same rights to governmental and nonovernmental organizations? Tempting to many who would have control, no?
These “what ifs” seem farfetched. Then again, it would have seem farfetched for a Canadian writer to be taken before a Canadian council on grounds that his use of Islamic quotes were slanderous to Islam and punishable. Maybe folks like Sunstein should be asking themselves (hypothetically), “If I implement this, what would would this law do for Dick Cheney when he becomes President?” There are many things that we would have the law and government do for us that the law and government cannot and should not do.
A Global warming is the greatest conspiracy phoney drama of them all….
Duncan says:
Presumably unless you make it illegal to view – the answer is just to use servers outside the US?
Politicians in all countries still don’t get the internets do they?
They either have to shut the whole thing down or clean their own acts up and stop being self serving chisellers.
The whole SOPA/IPIPA issue is over the method proposed to negate what you just said.
SOPA is principally about shutting down the access of US citizens to foreign internet servers – though it is not limited to that. It accomplishes this by forcing ISPs to selectively block their customers web access. It is not necessary to “shut down the whole thing” to shut down the parts that someone desn’t like.
[snip -over the top – Anthony]
Robin Hewitt says:
January 20, 2012 at 6:43 am
” He broke no UK law, he never left the UK. All very odd.”
No, extremely sinister is how I would describe it…
Seems like MacCarthyism is on the way back.
I had recommended this guest post to a number of correspondents in an e-mail special interest group, and one of them just announced that he had seeded it to NewsVine.com (at this location).
In addition, I’m informed by the operator of the International Society for Individual Liberty’s Freedom News Daily that this “Watts Up With That?” page will be cited in the Monday distribution.
“You can’t stop the signal….”
Didn’t a Mr A. Hitler once say somwhere, that you first control the language, then you control the debate, when you control the debate, you control the information, when you control the information, you control the people? Simples!
HAGWE everyone! 🙂
What do you call a thousand Marxists at the bottom of the ocean….
“I want you to accept that if you challenge this, that every member of your family can be brutally impugned for the rest of their life and there is nothing you can do to stop it. Nothing you should be ALLOWED to do to stop it. Sauce for the goose, after all………”
There are libel laws, where you can sue for this sort of malicious intent. This is different from the suggestion being discussed which is that anyone can claim something a lie and it must be immediately removed, under penalty of law. Maybe you can spend a fortune to get a court to agree that something isn’t a lie and you should be allowed to put it back up, but you’ve basically put all of the power in the hands of the target.
Someone posts an annecdote about their car blowing up when they backed into a tree. GM immediately issues a takedown notice. It goes away. It may or may not be true, but the world will never know.
Matt Drudge posts his information about Monica Lewinsky. Takedown notice. It all goes away.
This is all about control of information for people in power or with deep pockets. The little guy can’t afford to fight for their right to say things. The only entity immune would be “the press” because they can claim a constitutional right is being infringed and have deep enough pockets to take it to the surpreme court.
That said, a wishlist by this guy doesn’t make it happen. He has no authority to impliment it, and there’s no way that Congress would give him that authority. If you thought SOPA generated some outrage, that’d be nothing compared to the backlash that something like this would engender. So, while illustrative of who he is, and what Barak must believe to hire him, it doesn’t fortell of a future in which it happens.
There is also the madcap conspiracy theories regarding issues such as “the new world order” and racist allegations against Barack Obama which start in the bar with some deluded half wit and end up with Tomothy McViegh and the massacre of hundreds of innocents. Right wing conspiracies are every bit as damaging as left wing ones. How far should people be allowed to spread hate information which can end up with people being killed?
@Who has the power to determine “truth” ?
The model already exists. Cass could create the Sunstein Squad or SS for short, comprised of a group of people committed to Sunsteins political views which could be condensed in a little red book for easy reference, who would infiltrate and identify those who disagree with Sunstein’s views. This has worked very well on many occasions in the past. Tens of millions of potential fabricators of truth were identified and dealt with to make way for utopian society.
Or, as Wittgenstein said, “the limits of our language are the limits of our thought”. Limit what people can say or discuss, and you gain control over their thought – a popular political project in most of the West these days, it seems (pace George Orwell). It’s bad enough that the “wrong sort” control all the means of mass communication as it is, without added censorship.
At 7:14 AM on 20 January, Climategate 2.0 had observed:
Probably not. We’d simply have the federal government run by men like Ron Paul, who is considered “unelectable” because he does tell the truth instead of retailing the politically expedient lies upon which our “bipartisan” Boot On Your Neck Party incumbency relies for its continued ascendancy.
Bear in mind that SOPA and PIPA are not intended to “…start clamping down to censor purveyors of untruths,” but instead to prevent the dissemination of argument contrary to official prevarications, and emphatically to prevent the promulgation of truthful information supporting such contentions against the actions and pronouncements of our grasping jacks in public office.
To quote H.L. Mencken:
As a Canadian I say: Serves you right. You morons in the US voted for Obama. You are getting what you deserve.