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.
Jim G: Right on!
Read Alexander Solzhenytsin’s “200 years together”… Oh, yes, it is still not yet translated into English… case in point.
Congress just put the bills on hold. This was interesting however …
http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202534942743&slreturn=1
As appalling as this idiocy is, it neatly illustrates one of the major delusions of the left, namely that they always believe that laws are only to be used by them against their enemies.
So, “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,” what is to stop us issuing a takedown notice to RealClimate and THEM having to go to court to PROVE that their version of events is correct? You know, evidence and all that?Courts have juries, and juries have a horrible tendency to bite delusional autocrats in the ass.
Climategate 2.0 says:
January 20, 2012 at 8:28 am
Freedom lovers must be willing to forego their love of personal freedom to make way for the utopian vision of the learned elite that eminate from our top institutions and that have come to a consensus as to the best way for humans to live their lives. It is important to condemn those that put their selfish needs, personal freedoms and self-value ahead of the utopian vision, as immoral and a threat to society and social justice. Just imagine how beautiful this world could be if we could just all be stripped of our selfish nature and assimilated into a society where truth is determined by consensus and self-interest and all forms of disagreement would be eliminated.
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WOW, you sure know how to write.
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dtbronzich
January 20, 2012 at 8:46 am
Everything that power does is done in increments, gradually seizing for itself individual formerly noncentralised government functions under one department, or literally a department of departments. The term Czar could easily be replaced by the title “leader”. That power is National Socialism. The thugs used to wear brown, now they wear green.
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You summed up things perfectly, you deserve 2 gold starts, but because of our schools non-compete policy, everyone gets a gold star!
The history of Barack Obama is a subject in which I’m quite fluent. Ayers, while I would not be surprised if he ghostwrote Obama’s first autobiography, did not “confirm” that he did nor did the biographer do anything other than imply it.
Also, Palin’s statement likely wasn’t simply a reference to Ayers, but also his wife Bernadine Dohrn, Rashid Khalidi and possibly a hint at some of his church’s activities (printing articles from Hamas members, traveling to visit Moammar Qaddafi, etc).
Obama surrounds himself with radicals, but it is essential to get your facts correct or you’ll turn people off.
[snip. Take your anti-semitic conspiracy rants elsewhere. ~dbs, mod.]
Jeremy,
History has shown conclusively that McCarthy was right about Soviet agents in the State Department. What caused his downfall was claiming that he had a list in his hand. It turned out to be a list of something else. McCarthy was caught, and he never recovered ffrom it. But anyone who still believes there were no Soviet agents in State is simply naive.
• • •
Ossqss,
Interesting link. Under that judge’s ruling, Tom Paine’s pamphlets on freedom would be unacceptable.
That’s why your constitution wisely gives you the right to bear arms.
It’s always funny. Until it happens.
I think I predicted this on the shutdown protest thread a few days ago. If this law passes I fully expect that the next time Nature publishes some claptrap Nature will use this law to shut down WUWT and cliamteaudit for calling out their bad science.
At the very beginning of the nation, Thomas Jefferson said it best. “I predict future happiness for Americans if they can prevent the government from wasting the labors of the people under the pretense of taking care of them.”
Smokey says:
“History has shown conclusively that McCarthy was right about Soviet agents in the State Department.”
I agree lot of hate of McCarthy because he rightfully went after communist who are dangerous genocidal nuts. He like many others vilified by leftwing(aka communist) media and historians who wish to rewrite history to make people forget reality. McCarthy was right the vast majority of the time, proven by history and by Russia/KGB documents.
Whining about McCarthy is like when hitler whined about being jailed after the first time he tried to take control of the government. He should be praised for doing the hard things he did in a time when pro-genocide belief was running amok. If there had been “mccarthys” in the 1800s the KKK never would have gotten as powerful as it did.
I’m quite sure that the government (including the president and legislature) would be immune to this kind of law. Heaven forbid they tell the truth.
bill says:
January 20, 2012 at 7:59 am
I fully agree with your points! However what we in the PDREU are facing is the subtle shutting down of freedom of information, & free speech. They cannot stop one thinking about it, but they can enforce not being allowed to voice such opinions. Be very wary of the EPA, if the Republicans get back in one of the first thing to do would be to weaken its powers & I tell you for why! It’s a back door to anti-democratic processes & socialism. Here in the UK we are ruled by the EU Commission – unelected, undemocratic, unaccountable, & unsackable!!!! Most Commissioners are paid huge somes of money, have huge expense accounts all taxpayer funded, (as indeed are the Members of European Paliament), & are mostly ex or failed socialist politicians of various shades of pink! Most of our regulation (Directives) & boy do we have some comes direct from the EU, the mother of all parliaments is nothing more than a rubber stamping office for EU legislation! The EU pays WWF/Greenpeace/FoE to provide reports that criticise the EU & countries within it so that they can point to this or that “evidence” to use to enact laws to oppress/suppress/change human activty. When you hear the trendy neo-lefties like self-enriched at taxpayers expense Lord Mandelson (made his squillions as a COmmissioner) say “we are living in a post-democratic world”, you know your’re finished long-term! The EPA is your EU, look how it blanket banned (instead of controlling it’s use with laws) DDT & all sorts of other useful chemicals & materials on the flimsiest of scientific information, it’s agenda was already set, the decisions made, they just needed justification! In the EU it’s all about integration & “harmonisation”, let me give you a simple example:- within the EU, most but not all states have a drink drive limit of 50mg/100ml of alcohol/breath ratio. The UK has 80mg/100ml. The Commission wants harmonisation, so the Socialist UK goverment knew this would be a step too far back in 2004, but postponed it, however last year saw some recently enobled Lord do a study that showed that it “could save up to 145 (I will recheck that fig) lives” each year by adopting the new reduced level. Clearly & just as equally it “could not” save those lives – the Precautionary Principle lives on!
The point I was making was not about who was right. I was demonstrating hypocrisy. McCarthy (right or not) sought to create a witch-hunt from real fears and the left cried foul. In the case of this thread, we have people with confessed intent to quash dissent about to receive legislated powers and someone defending the administration wants to say, “well you didn’t connect the dots, so you have nothing.”
That’s the point. McCarthy had fear, but nothing like the powers of PIPA/SOPA to go after those he feared. To suggest this is all nonsense because someone in the executive branch has never stated that they would misuse a law is about as naive as you can possibly get.
Jeremy says:
“McCarthy (right or not) sought to create a witch-hunt from real fears and the left cried foul. ”
Mccarthy never started or intended to start a witch hunt thats pure commie propaganda.
The international take-down and seizure (without due process) of the off-shore cloud storage site (and of all the private family photos, school work, etc on it) Megaupload shows that off-shoring servers is no safety.
Further, IIRC, SOPA would give government power to intervene at the DNS level.
Then the Supreme Court strangely ruled that the government can put into copyright things that have been in the Common Domain. “I’m sorry sir, no copies of the Constitution or Declaration of Indepenedence are available, due to copyright restrictions.”
Jeremy,
What did I write that you believe is inaccurate? There was not a ‘witch hunt’ [implying that there were no Soviet agents]. McCarthy’s problem was self-inflicted. But it was a fact that there were Soviet agents in the government [just as there are PRC Chinese agents working in U.S. Defense contractors’ production facilities today].
McCarthy shouldn’t have lied. He didn’t need to. We see the result today, when any suggestion of self-serving collusion between individuals is promptly dismissed as a “conspiracy theory”. But the fact is that there are always conspiracies. As Adam Smith wrote in 1776: “People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices.”
Conspiracies abound. Witness Ottmar Edenhofer, the UN/IPCC 3rd WG Co-Chair’s candid statement: “One must say clearly that we redistribute de facto the world’s wealth by climate policy. One has to free oneself from the illusion that international climate policy is environmental policy. This has almost nothing to do with environmental policy anymore.” That is clearly a UN conspiracy to use an environmental cover story to confiscate the wealth of the West.
Finally, McCarthy was not powerless. He had enormous power at the time. He was a U.S. Senator, and the country listened intently to what he was saying. Fortunately for the Soviets, the Army hearings were McCarthy’s downfall, and their agents remained in place.
Meanwhile back in the UK, three Islamic fundamentalists have been found guilty of a hate crime for distributing leaflets stating that gay people deserved to be executed. While I know many of the right wing libertarians will applaud their initiative, I thank the good Lord I live in a country where we have laws which understand that even freedom of speech has the same limitations as freedom of action. I’d like to see them receive a sanction which required them to work in a Gay community to see for themselves that these are real people who are entitled to protection from the promotion of hate crimes in the same way as everyone else.
Neither one of you is reading what I wrote. You’re both reading in argument and insinuation where there is none.
The audo link to the Sunstein talk that the article summarizes is dated 12/3/2008. That’s right between the “Conspiracy Theories” and On Rumors publication dates, so Sunstein would have been working on the Rumors book at the time.
The full quote at the end is worth noting because it shows the kind of non-sequitur that Sunstein, a professor of constitutional law at Harvard, is willing to use to get around the clear language of the Constitution. First he claims to know what end the authors of our Constitution were pursuing when they established freedom of speech as their means, then he claims to have a better means to that end, as if his opinion of what is the better means could in any way alter the means that is framed in the Constitution:
Sunstein wants to chill those views (rumors, theories, etcetera) that the courts judge to be wrong. Instead of letting the contest of information and argument reveal where truth lies, Sunstein wants to let these government overseers decide. But the Constitution establishes the exact opposite answer to the problems that speech can create. The founders didn’t want government deciding what is true and what is false. They knew that free exchange advantages truth, while censorship is the handmaiden of falsehood, so they laid down that “Congress shall make no law… abridging the freedom of speech.”
Sunstein thinks by divining the objective of this constitutional requirement, and claiming to have a better way to achieve it, he is thereby justified in replacing that constitutional requirement with its opposite: Congress shall make laws abridging the freedom of speech. His On Rumors book is short on details of how his system would work, but it is clear from these remarks that he does not consider Supreme Court precedent to be any kind of fixed barrier. He thinks the Constitution should be interpretted differently, in a way that gives people like him a free hand to establish what they think are better means than those actually written in the Constitution.
Anthony, I have aways enjoyed your site and have posted honestly and in the spirit of debate, though generally from an unpopular left wing perspective. I note one of my comments has been deleted and I have been accused of anti-semitism. I have posted no such nonsense, Who on earth is moderating at the moment? I would appreciate you reading my post. If you think it is inappropriate, fair cop, but I have never posted anti-semitic comments and I am appalled I should be accused of it. Anyone who knows me will point out that it would be very difficult for to be anti-semitic ! (Hint, Gareth late of Elat, and Hevel Elot) Just in case this is deleted without you seeing it I will also email you.
REPLY: I have no way to read it now, but I’ll stand by my moderators decision whether it was anti-semitic, over the top, or both. You are welcome to resubmit without problematic wording – Anthony
Any sane person would realize that Sunstein’s views are dangerous to everyone, since no Party has ever held a monopoly on Government for more than a few years. Once the other side gets in, THEY would be determining the ‘truth’. The Koch Brothers founded the Tea Party? Off to prison! The 1% are responsible for the disasterous economy? Off with your head!
I’m sure Sunstein realizes that. I can only conclude that he intends for his cabal to stay in power permanently, and will do whatever is required to keep that power. That makes him and others of his ilk very dangerous.
To Jeremy
You claim there was a witch hunt there was none… you claim that somehow being right or wrong doesn’t matter… it does alot in the topic your talking about. You talk about innocent people when in fact it was proven they were guilty by historic fact.
If you want to argue along a different line to prove whatever point your trying to make do so… but you are wrong… very very wrong in your posts.
As to Garethman
I find great irony in your post more so this statement…
“Gay community to see for themselves that these are real people who are entitled to protection from the promotion of hate crimes in the same way as everyone else.”
Thats very close to this statement
“German community to see for themselves that these are real people who are entitled to protection from the promotion of hate crimes in the same way as everyone else.”
About how when a jew was put in jail in 1941… no “community deserves special treatement either for or against but you leftist nuts pick and choose who is “special” and who deserves protection(gays but not jews).
Keep posting the propaganda though its nice to see you trying so very hard to troll and failing so badly.
I think Sunstein’s sense of what is “wrong” with facts in an informational cascade dovetails into the discussion of information, facts, knowledge and wisdom in the book “Too Big to Know”. Weinberger laments that what is known or can be known is being torn down by the internet or networked knowledge and the way out of the conundrum is some form “expert” vetting. Weinberger also extensively quotes Sunstein on issues related to informational cascades in shaping opinion. Sunstein quotes studies that point to the importance of first adopters of ideas as thought leaders. But a recent study calls that into question. http://www.physorg.com/news/2012-01-facebook-patterns-music-movies-friends.html
““Much of Facebook’s business model is based on the assumption that Facebook users ‘influence’ one another through displays of things they ‘like’,” said Kaufman. “If you say you like a band, product, movie, etc., Facebook purports an ‘influence’ effect whereby your friends become more likely to adopt that preference in turn.
“What we found is that only in very specific instances does anything like ‘influence’ occur,” he continued. “This stands in contrast to an active research literature on the ‘contagiousness’ of various behaviors, such as obesity, smoking, and happiness, and gives pause at the millions, if not billions, of dollars spent every year on so-called ‘social media’ advertising campaigns.””
If peer group members can’t even influence friends’ music or movie choices how the heck are they going to shape opinion on weightier topics. This calls into question Sunstein’s entire premise of knowledge overseers.