Former Obama Official: Free Speech Ruling Hurts 'Public Civility' And 'Democratic Self-Government'

from the say-what-now? dept

Tue, Mar 25th 2014 10:35am — Mike Masnick

Cass Sunstein, who recently got some attention for being a member of the task force President Obama asked to review the NSA's surveillance practices, is probably more well known as both a former Obama official and the co-author of the highly influential (if somewhat problematic) book Nudge (which has even inspired an entire organization within the UK government).

Sunstein has written a column for Bloomberg, which reads more like a #slatepitch -- taking something rather basic, and arguing a contrarian view solely for the sake of being contrarian. In this case, Sunstein is trying to argue that the key First Amendment ruling in New York Times v. Sullivan, which just turned 50 years old, has a "dark side."

As you hopefully are aware, NYT v. Sullivan established a key standard in defamation cases involving public figures, noting that for there to be defamation, there needs to be "actual malice." It was the first case that really recognized how defamation law and the First Amendment can clash -- and the Supreme Court set a much higher bar for defamation in order to defer to the power of the First Amendment. The ruling was both sound and quite important. It noted the chilling effects on free speech (and, specifically, a free press) that would result if anyone could be sued for a false statement made in the course of a political debate. Recognizing that it is entirely possible for someone to say something that is not technically correct, but without meaning to distort the situation, the court made it clear that for defamation to apply to a public official (who often had the means to respond to any false claims directly), there needs to be "actual malice" where the intent is to defame them, rather than just an incidental misstatement of the facts.

This ruling has been a key free speech ruling that has been helpful way beyond just the ability of the press to report freely without fearing a minor error will lead to a massive lawsuit and liability. But Sunstein, apparently, thinks we might be better off if there was a great chill in speech. Better, he seems to suggest, that millions be silenced out of fear of liability, than that a few people make minor non-malicious errors in the course of political debate:

But amid the justified celebration, we should pay close attention to the dark side of New York Times v. Sullivan. While it is has granted indispensable breathing space for speakers, it has also created a continuing problem for public civility and for democratic self-government.

How is free speech a risk to self-government? Apparently it has something to do with mean talk show hosts and (gasp!) bloggers:

When it comes to public figures, all sorts of false allegations are permissible, whether they involve birth certificates, drug abuse, sexual misconduct or income tax fraud. One result is that those who seek public office put their reputation at immediate risk.

One of the goals of the court’s ruling was to protect self-government, but the effects on self-government are not all good. Talk show hosts, bloggers and users of social media can spread ugly falsehoods in an instant -- exposing citizens to lies that may well cause them to look on their leaders with unjustified suspicion.

After all of this, he basically says "ignore everything I just said" by then admitting that "the court got the balance right in New York Times v. Sullivan." It makes you wonder why he even brought this up in the first place. He insists it's because he wants people to recognize that NYT v. Sullivan, rightly or wrongly, "can claim at least some responsibility for adding to a climate of distrust and political polarization in the U.S."

Frankly, that's ridiculous. People always like to assume that political discourse has somehow reached a "new low" in their own lifetimes, often ignoring that political discourse in the US has been ridiculous from the very beginning. To blame the level of partisan rancor today on an important free speech ruling is based on nothing other than general contrarianism, rather than any sort of proof.

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Filed Under: cass sunstein, defamation, first amendment, free speech, nudge, nyt v. sullivan, political discourse

24 Comments

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Ninja (profile), 25 Mar 2014 @ 10:32am

Public civility my ass. Either there is free speech or there is not. Just because he doesn't like some kind of speech it doesn't automagically kill freedom of speech. There's this now classic case a while back where the ACLU sided with some nutjobs (KKK?) that were spreading "hate"-speech (I use the term loosely as it is largely subjective). As much as I agree that some people should just shut up I also believe in their right to say all their bs freely.

This is yet another prod from a Govt representative into totalitarianism. Defamation also should be brought back to the definition:

defamation
[def-uh-mey-shuhn]
noun
the act of defaming; false or unjustified injury of the good reputation of another, as by slander or libel; calumny

Opinions are not facts and facts are... facts regardless of how "damaging to the good reputation" of another.
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mcinsand, 25 Mar 2014 @ 10:41am

not worried about talk show hosts or bloggers, but...
My thoughts went to Fox News and MSNBC. They have plenty of malice, as well as no interest in any finding errors... as long as they can present a story (or 'story') the way they want it to look.
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techflaws (profile), 25 Mar 2014 @ 11:06am

One result is that those who seek public office put their reputation at immediate risk.

If you can't stand the heat, stay out of the kitchen.
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Anonymous Anonymous Coward, 25 Mar 2014 @ 11:10am

Zero Tolerance
Is this one of the pretenders responsible for Zero Tolerance in the schools, just wanting everyone to have a fair chance to fit into his vision of free speech?
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JEDIDIAH, 25 Mar 2014 @ 11:15am

Ignorant git
This joker should review some newspaper articles from the Adams and Jefferson administrations.
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Anonymous Coward, 25 Mar 2014 @ 11:42am

Public civility? Really? Next he's going to say "it hurts the unity of the society!" - and then you might just label US as China, because they would be indistinguishable at that point. They're already doing just as much or more surveillance as them. All there's left is censorship.
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lars626, 25 Mar 2014 @ 11:42am

1828
He should read about the 1828 election between Adams and Jackson.
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Beta (profile), 25 Mar 2014 @ 11:44am

sauce for the goose
Professor Sunstein doesn't mention whether he would approve of similar liability for politicians who make false statements to the public.
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Edward Teach, 25 Mar 2014 @ 12:01pm

Changes in how Supreme Court rules?
From the Wikipedia article on Sullivan: The decision further held that even with the proper safeguards, the evidence presented in this case was insufficient to support a judgment for Sullivan.
So, why has the Supreme Court changed over the years? It seems to me that rulings today are exceedingly narrow in focus, sometimes to the point of Talmudic Inscrutability, like the warrantless GPS tracker case from last year. The Supreme Court only held that a warrant was necessary to trespass on the car or something stupid like that, rather than just slapping down the FBI's overreach.
What happened since 1964? Is is just because the Justices are all so weirded out since the Bork nomination failed? Or is something else happening, like we've got a pretty spineless court these days?
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Anonymous Coward, 25 Mar 2014 @ 12:19pm

Anybody engaged in political discourse should have the same protection against defamation cases as politicians do when speaking in the bodies they are elected to. (Hint, the politicians have enacted laws that prevent them from being sued for defamation.)
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Anonymous Coward, 25 Mar 2014 @ 12:19pm

Re:
This. A thousand times this.

If this asshat is so concerned about how others perceive his reputation, maybe the REAL issue is, I dunno...with HIS REPUTATION?
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John Fenderson (profile), 25 Mar 2014 @ 12:53pm

A critical point
People always like to assume that political discourse has somehow reached a "new low" in their own lifetimes, often ignoring that political discourse in the US has been ridiculous from the very beginning.

This is a critical point that deserves to be reiterated. Even a cursory glance at the history of political rhetoric in the US shows clearly that it has always been deep in the mud. In fact, the level of it now is much better than at various points in the past.

Even the existence (and tone) of bloggers isn't a new thing. We've always had them. The only difference is the media they used. Now, it's computers and the internet. In the past, it has been pamphlets, broadsheets, booklets, and so forth.
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art guerrilla (profile), 25 Mar 2014 @ 1:33pm

(c)ass (s)unstein is (s)cum...
the fucker is an elitist pig from way back...
he would roll back EVERYTHING to have only white, male property owners eligible to vote...
(okay, *maybe* he's not a racist, and he'd allow black male property owners too, big whoop...)
i don't recall if it was pointed out in the article or comments, but he is the censorious dingleberry who would have EVERYONE else censored, but give 'his' propaganda botz free reign to infest the inertnet tubes with gummint sockpuppets...
he is slime...
the WORST kind of slime: a faux-progressive advocating a police state to make the trains run on time...
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Christopher (profile), 25 Mar 2014 @ 1:40pm

I usually automatically think about these things
That they are trying to stifle free speech and stifle people dissenting with others on various subjects.

I.E. don't talk about homosexuality or you will be put in prison. Don't talk about interracial marriage or you will be put in prison.

Analogue to those hits from our past.
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Anonymous Coward, 25 Mar 2014 @ 1:51pm

Re: Zero Tolerance
Yes, he is...

From the link included above regarding the UK Unit inspired by Douchestein's "Nudge" method.

"The Behavioural Insights Team, often called the �Nudge Unit�, applies insights from academic research in behavioural economics and psychology to public policy and services."

Basically, anyone who makes any "derogatory" comments in public or online WILL be arrested.

Desperate political police arrest another BNP campaigner
Mon, 17/03/2014 - 10:39
http://www.bnp.org.uk/news/national/desperate-political-police-arrest-another-bnp-campaigner
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Chris, 25 Mar 2014 @ 2:07pm

Sunstein is a mini Goebbels
This is the same guy that says the govt should infiltrate groups to monitor them. Then spread fall information to antagonize and manipulate them. (Think unions, tea parties, NRA groups.)

Who in their right mind would worry about what that waste of skin thinks? He's fits in better in Russia or China.
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Anonymous Coward, 25 Mar 2014 @ 2:37pm

Maybe he should sue himself for defamation,for plundering his own reputation, I think he'd lose.
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Niall (profile), 26 Mar 2014 @ 6:07am

Re:
He's obviously never read the comments sections of WND or Free Republic! If libelling a public official were a federal crime, half the Tea Party would be behind bars! (Leaving aside most of them already expect the government to any minute now put them in death camps and even worse, TAKE AWAY THEIR PENIS SUBSITUTES!)
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Niall (profile), 26 Mar 2014 @ 6:08am

Re: A critical point
Yes... but but the Internet! On a computer!

Think of the terrorist children!
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Anonymous Coward, 26 Mar 2014 @ 9:19am

For something to be defamatory one should have to say something that they know is true.

For example (just being hypothetical) if I said

"I think George Bush was behind 9/11, he was directly responsible for it (not saying I hold such a viewpoint)"

and I point to various 'facts' that I believe suggest he is, that's not defamatory.

If I said "George Bush personally admitted to me that he was behind 9/11" and that's not true, that's defamation.

If I said "I saw him leaving the house at 10:00 PM last night. I think he is the murderer" that's not defamation. That's an opinion." and I did see him leave at 10:00PM then that's not defamation. If I didn't see him leave at 10:00PM and I just made that up that's defamation(?).

If I said "I saw him commit the murder through the window" and I just made that up that would be defamation.

Stating that you think he committed murder based on facts that you believe are true is not defamation. Making up facts that you know aren't true to get someone in trouble or damage their reputation is.

Interpreting existing facts that everyone has equal access to is not defamation. Making up facts that you know are false by claiming to be the primary source is (possibly) defamation.
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Anonymous Coward, 26 Mar 2014 @ 9:20am

Re:
the first line should read that one should say something that they know is not true *
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Anonymous Coward, 26 Mar 2014 @ 9:24am

Re:
errr... I should have proof read before submitting. That whole thing got messed up.

If I did see him leave at 10:00 PM and I said that I think he's the murderer based on me seeing him leave at 10:00PM then that's not defamation. If I didn't see him leave at 10:00PM and I claimed that I did see him leave at 10:00PM knowing better then that's possibly defamation.
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John Fenderson (profile), 26 Mar 2014 @ 9:44am

Re:
""I think George Bush was behind 9/11, he was directly responsible for it (not saying I hold such a viewpoint)"

and I point to various 'facts' that I believe suggest he is, that's not defamatory."

Actually, you don't even have to point to various facts. You said "I think", which means that you're expressing an opinion rather than asserting a cold hard fact, so right there it's not defamation.
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btrussell (profile), 26 Mar 2014 @ 5:41pm

Re: Re: A critical point
New ways of doing things should be regarded exactly as old technology.

Smartphone, landlines, still a conversation. On the net? It doesn't hold water.
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