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.
Ron Paul for President.
Luther Wu says:
January 20, 2012 at 8:14 pm
James Sexton says:
January 20, 2012 at 7:10 pm
“”””
Maybe in the long view, as the platitudes and ideas of the left are now choking our culture at every turn and should be uncloaked and exposed for what they truly are.
However, who wants to suffer through another 4 years of this?
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More than that, we need to ensure that our children are taught that the last 4 years isn’t the way it is suppose to be! Another 4 years of this and more people will accept the defeatism so prevalent in our current administration. Just listening to hopey changey must send Prozac sales through the roof!
Isn’t that something? The only market they’ve stimulated was the anti-depressant market. Scumbags…….
http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10779996
Megauploads.com closed down in New Zealand
Expensive cars, cash, shotguns and artworks are among items seized by police today when they raided 10 Auckland properties connected to allegations of international copyright infringement being investigated by the FBI.
Four people were arrested as part of an operation led by the US Department of Justice targeting large-scale criminal copyright infringement and money laundering around the world, police said.
A US indictment accuses New Zealand resident Kim Dotcom’s Megaupload.com website of costing copyright holders more than US$500 million in lost revenue from pirated films and other content, and generating more than US$175m in criminal proceeds.
Bill H says:
January 20, 2012 at 8:16 pm
what concerns me are those youngsters today who haven’t been taught our founding document and how to apply it. this is by design… liberalism is a disease ……..
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Bill, I couldn’t agree more. But, from here, we should acknowledge the international flavor of this blog. The word “liberal” carries a different meaning around the globe. I take the current U.S. term for liberalism to mean Marxist Malthusian misanthropists, while in other parts of the globe, being a liberal may actually mean liberally applying the concept of individual rights and freedoms. ….. (well, it could be….)
But, yes, it’s time. It is past time. We need to start teaching our children what it means to be a citizen; the obligation to stay informed, and the heritage which mandated such.
The difficulty is that while we’re busy providing and doing our best to raise our children, there’s little time for much else. The continuing burden our government puts upon us mandates more and more of our time. Or we can become some of those who simply give up and become wards of the state. In which case, we would have taught our children to be slugs.
DSW, I agree entirely, legislation can and is unfairly weighted in favour of some groups, Christians especially across the world sometimes get a raw deal. I still though will fight for equal rights for all peoples regardless of background. As a Christian lefty it’s in the blood!
Great post! Thanks.
Chris
Norfolk, VA, USA
http://www.megaupload.com/
click on the link to see the internet of tomorrow.
ferd berple says:
January 20, 2012 at 11:34 pm
http://www.megaupload.com/
My mistake. Click on the link to see the Internet of today.
O/T (maybe not) , Where is Gail Combs and is she OK?
higley7 says:
January 20, 2012 at 5:50 am
The USSR was run by the Communist Party (emphasis on “party,” which is what they did on the people’s dime). In retrospect we find that the Soviet people hated communism/socialism (the commune part disappeared quite quickly), which was socialism run by a gang. One analyst said that, to make socialism work, you need a generation or two of creeping socialism and indoctrination to get the people used to and accepting of it, in a fatalistic way, as simply the way life is.
While I agree with the gist of what you are saying, there is, unfortunately, a huge additional problem. Everyone who lived in the Soviet society knows that a very large part of the population there not only accepted socialism and indoctrination as some unavoidable evil that has become a norm — that alone wouldn’t hold the Soviet society together — but was actively seeking a master, an owner, a dictator, an absolute authority that would tell them what to do and how to do it, what to think and how to say it. In different countries a share of these “naturally born slaves” (a.k.a “conformists”, “sheeple”, “something-for-nothings” — call them what you like) in the general population can vary but they are always painfully present, in the US as well.
Obvious paradox of the scientific and technological progress is that it allowed a majority of hereditary slaves — products of thousands of years of selection who constituted an economic base in traditional, non-technological societies — to live off a thinking and working minority. This has already happened in Europe and in the US; the point of no return has been passed, and democratic institutions are now instruments of totalitarian brainwashing and oppression.
We’ve arrived. It’s not a jungle any more, it’s animal farm out there. Americans are fond of their history and their traditions, and tend to underestimate the tragedy of what has happened to their country. They still hope that their hallowed laws and institutions somehow, miraculously, would bring back freedoms and common sense. But these very laws and institutions already betrayed them, they have been deliberately modified to serve very different purposes. The sooner we realize this, the sooner we stop relying on institutions and laws that serve our enemies, the sooner we will start talking about practical ways of separating free and self-sufficient people from those who cannot live without a master and a host.
New segregation of the Western society is inevitable. How exactly it will happen, and when, I dare not predict. As a rule, though, social mutations of this kind tend to stagnate first, and then to explode in abrupt and bloody ways.
My favorite American writer, Jack Vance, noted: “If the study of human interactions could become a science, I suspect that an inviolate axiom might be discovered to this effect: Every social disposition creates a disparity of advantages. Further: Every innovation designed to correct the disparities, no matter how altruistic in concept, works only to create a new and different set of disparities.”
America, under the veil of being the land of the free, is actually becoming the most controlling, liberty-eroded country in the world. And they don’t just stop at their borders, they want to control the world. Americans need to wake the f up.
You are armed, ain’t you? So?
Here’s freedom to him that would speak,
Here’s freedom to him that would write,
For none ever feared that the truth should be heard,
Save him whom the truth would indite.
Robert Burns ( 25 Jan 1759 – 21 Jul 1796 )
Ferd Berple at 11.34.
Megaupload is no more !!
So:
“However, Silicon Valley’s problem – and one activists have – is that they’ve never thought about it like this. They’ve never seen a voluntary copyright enforcement backstop they liked: they were all problematic. Campaigners instinctively oppose everything – leading to ever more bonkers legislation.
Like Spencer, Silicon Valley doesn’t seem to want worry about it, it doesn’t want too many wrinkles in old age. This is why I call SOPA “what goes around, comes around” legislation. It isn’t nice, and it isn’t necessary, but we’re all here because Silicon Valley’s web companies refuse to grow up. The White House just told them they should. ®”
http://www.theregister.co.uk/2012/01/17/beyond_sopa/
Rhys Jaggar says:
January 20, 2012 at 5:59 am
I’m sure you’re right Jaggar. But your tea break must be over, so isn’t it time you got back to Room 101 to prepare the rats for the next occupant?
I like Robbie’s freedom of speech poem, lets hope Haggis becomes legal in the USA and the magic of Tatties, neeps and a good malt is shared with our American cousins.. Hopefully with regard to Robbies words, they do not apply to the mad Mullahs who preach Jihad against the Christians of Iraq, Pakistan and other Islamic countries, and encourage their constituents to go and murder anyone who does not fit their view of the world. Or Christians who tell their flock that the only politician they should vote for is Evangelical Christians who fit their idea of who is a decent person and sod the rest of the electorate, or people who protest and encourage aggression against Israel while conveniently ignoring extreme violations of human rights in other countries. Sadly, freedom of speech includes all these things, but it is a bitter pill to swallow and to paraphrase Robbie, one mans sweet speech is another mans bitter diatribe.
I’m reminded of discussions in my student days of two notions of freedom, the positive notion, ‘freedom to’ and the negative notion, ‘freedom from’. The problem with the latter notion is that freedom ‘paradoxically’ becomes linked to limits on freedom and increasing government intervention. While few would advocate that we should live in a lawless state of nature, what needs to be retained in political debate is the notion that when we introduce restraints they are limits on freedom. Once we allow, as leftist ‘liberals’ argue, that freedom means some kind of constraint, we open the door to zealous bureaucrats and tyrants imposing more and more controls, censorship of the press for example, all in the name of freedom.
The SOPA debate shows
1. We really do need revisions in the copyright laws but in finding ways to reduce the duration. For illustrative consideration: all copyright laws are personal to the creator and expire within (a) four years of creation or (b) four years after the work is sold for profit or (c) at the death of the creator. Having life plus 70 years or 95 years or 120 years or whatever the current treaties and laws state is simply way, way too long.
2. Plagarism should be reported but only reported. Take Sunstein office’s budget and create a web site where folks can list, in data warehouse searchable form, plagarized works that fail to credit the original creators. But leave it about reputation along with whatever consequences folks like PhD’s are subject to if found to have plagarized. The parties can debate, at that site and on a thread, the truth of the matter.
3. We need to end all legal constraint of free speech other than the earliest ones of doing things like shouting “fire” in a crowded theater. Even then, leave it as a tort and not crime. And that goes for the defense of “he was disrespecting me”. Mostly it means reverting to the old saying of sticks and stones but never words.
Generally, we should fire our would be Guardians (ref. Plato). It’s about growing up, being responsible and taking one’s place as an adult.
This is exactly what happens when you give people with small temperament great notice and power. It does not occur to these fools that tides shift and what might seem like a bludgeon, they invent is always faced outwards but the opposing actors change sides.
“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. It means that someone writing that should be incarcerated into a lunatic asylum.”
Are you serious? Sorry, but I believe the exact opposite, and in the extreme! I should be able to go to the street corner and YELL what you wrote, at the top of my lungs and fear no repercussions. That is what it means to be an American. If I make an utter fool of myself it is my own business. No one has to agree with me and I have the right to make myself look like an arse. Hateful speech, stupid speech, idiotic speech is just as protected as intelligent, logical and reasonable speech. Anyone suggesting otherwise really ought to rethink their intellectual premises.
Spawning and believing in conspiracy theories is our American birthright. As a nation we are quite good at it. Not being a conspiracy theorist, I have the right to reject such ideas and I do. However I happen to believe that such thinking is integral to our American exceptionalism. 🙂
What Sunstein proposes actually is his own conspiracy. A conspiracy against free speech. It is breathtaking to think a person like this has gotten anywhere near power, and frightening to realize he is in the one single position best fitted to realize his agenda – a regulation czar. Just incredible.
My guess is that this BLOG post has triggered Mr Sunstein’s minions and all of us are now under active surveillance. /sarc.
I do agree that Ron Paul is the only candidate who would actually effect any change. The problem I have with him is some of his views and positions on things are not tempered by reality. He is uncompromising with his libertarian ideology. I have found that in the real world you cannot stick like glue to ideology. You do need to compromise. It is a trait that a leader of a diverse peoples needs to have and I do not see it in Ron Paul. Beyond that, if he were to end up the nominee I would vote for him.
ABO…
Beth Cooper says:
January 21, 2012 at 3:41 am
I’m reminded of discussions in my student days of two notions of freedom, the positive notion, ‘freedom to’ and the negative notion, ‘freedom from’. The problem with the latter notion is that freedom ‘paradoxically’ becomes linked to limits on freedom and increasing government intervention. While few would advocate that we should live in a lawless state of nature, what needs to be retained in political debate is the notion that when we introduce restraints they are limits on freedom. Once we allow, as leftist ‘liberals’ argue, that freedom means some kind of constraint, we open the door to zealous bureaucrats and tyrants imposing more and more controls, censorship of the press for example, all in the name of freedom.
Freedom is neither a freedom with a pointer (to), nor can freedom defined as a ‘freedom from xyz’, because if there is any target (to) the consciousness, it is slaved to the target, and a consciousness, that is aware on something xyz, slaves the always busy mind. Freedom is practise of freedom. This practise has no idea, no target, no enemy, no acting, but (timeless) being.
I think it is no secret that this world and all its living beings are not perfect, but a good place to learn the principles of ethics vs the challenges of evolution to breath, to eat, to drink, other fresh fish, clean water or the fruits from free trees. And because one can learn that you have to pay for all you get, because of the principle of ‘balanced balance’ or ‘balanced justice’ it seems not impossible to each individual, to know the ethical part of nature. Alike for that what is true, the reference is timeless and only the very own consciousness in every present, and cannot be aliened, in general the individual acting balance cannot be aliened, not to a church, not to a judge, not to a president. The practice of freedom only can lead to the timeless ethical principles in the inner consciousness of every individual.
V.
Some posters here have defended laws restricting speech by prohibiting scurrilous attacks.
When only inoffensive speech is allowed, that’s not free speech. You only have freedom of speech when you have the right to make the nastiest, most insulting comments you can think of to point out your opponents’ flawed logic and policies. Here are a few quotes from some prominent Americans:
“The theory of the free press is not that the truth will be presented completely or perfectly in any one instance, but that the truth will emerge from free discussion”
Walter Lippman (American Editor and Writer, 1889-1974)
=
“The only security of all is in a free press. The force of public opinion cannot be resisted when permitted freely to be expressed. The agitation it produces must be submitted to. It is necessary, to keep the waters pure.” –Thomas Jefferson to Lafayette, 1823. ME 15:491
And Jefferson got plenty of agitation- from James Callendar’s scurrilous- but likely true-
allegatons of Jefferson’s lifelong affair with his slave, Sally Hemmings.
“Our liberty cannot be guarded but by the freedom of the press, nor that be limited without danger of losing it.” –Thomas Jefferson to John Jay, 1786
There are laws to protect the freedom of the press’s speech, but none that are worth anything to protect the people from the press”: Mark Twain
Excellent article, Alec Rawls and thanks to both you and Anthony Watts for bringing this subject to our attention.
What amazes me is the sheer hypocrisy of the so-called ‘liberals’ who propose this.
Take the example of John Mashey who is happy to write numerous articles around the web accusing Wegman of plagiarism (falsely in my opinion) but then tries to censor others from speaking out against CAGW accusing them of ‘misusing a civil platform’.
In his words “People should be free to express their opinions, but not all opinions are equal”
http://chronicle.com/blogs/innovations/guest-post-bottling-nonsense-mis-using-a-civil-platform
Isn’t that exactly the sort of world that George Orwell warned us against in ‘Animal Farm’ and ‘1984’!
So I guess that in the pursuit of free speech and being able to say anything, however scurrilous, there is no longer a need for moderation? If the need remains, is that not contradictory to the idea of complete freedom to say anything you want, as long as you are prepared to accept the consequences?
conradg says:
January 20, 2012 at 11:35 am
“Are you saying Christopher Anderson is incorrectly understood by Rawls?”
I’m saying that since Rawls puts forward the absurd claim that Ayers admits to having written Obama’s autobio, I don’t trust what he has to say about Anderson or anything else. It’s obvious that he’s either knowingly lying, or a total dupe. He might be right about Anderson, but I wouldn’t trust his point of view, which clearly will distort the facts to achieve the ends he desires. I would want independent corroboration for every single fact he puts forward, because to me he’s not a trustworthy source.
And let’s be clear, science, truth, God, whatever you believe is “good”, takes no sides, especially not in politics. I am not on any “side”. That’s the whole problem with the climate debate, isn’t it? Even most of the public who is skeptical out there is only that way because their “side” is. Same with the enviros and the left. Damn little critical thinking going on, especially once your thinking becomes a function of which “side” you are on.
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Apparently it’s not just a White House Biographer who believes it.
So, if you think Ayers is not clever enough to “admit” he ghost wrote for O, with a chuckle, in order to ridicule the suggestion, perhaps the reasons given in this video series are more compelling.