Sunstein's anti sunshine policies

Kyle Smith:

When it comes to the First Amendment, Team Obama believes in Global Chilling.

Cass Sunstein, a Harvard Law professor who has been appointed to a shadowy post that will grant him powers that are merely mind-boggling, explicitly supports using the courts to impose a "chilling effect" on speech that might hurt someone's feelings. He thinks that the bloggers have been rampaging out of control and that new laws need to be written to corral them.

Advance copies of Sunstein's new book, "On Rumors: How Falsehoods Spread, Why We Believe Them, What Can Be Done," have gone out to reviewers ahead of its September publication date, but considering the prominence with which Sunstein is about to be endowed, his worrying views are fair game now. Sunstein is President Obama's choice to head the White House Office of Information and Regulatory Affairs. It's the bland titles that should scare you the most.

"Although obscure," reported the Wall Street Journal, "the post wields outsize power. It oversees regulations throughout the government, from the Environmental Protection Agency to the Occupational Safety and Health Administration. Obama aides have said the job will be crucial as the new administration overhauls financial-services regulations, attempts to pass universal health care and tries to forge a new approach to controlling emissions of greenhouse gases."

Sunstein was appointed, no doubt, off the success of "Nudge," his previous book, which suggests that government ought to gently force people to be better human beings.

Czar is too mild a world for what Sunstein is about to become. How about "regulator in chief"? How about "lawgiver"? He is Obama's Obama.

In "On Rumors," Sunstein reviews how views get cemented in one camp even when people are presented with persuasive evidence to the contrary. He worries that we are headed for a future in which "people's beliefs are a product of social networks working as echo chambers in which false rumors spread like wildfire." That future, though, is already here, according to Sunstein. "We hardly need to imagine a world, however, in which people and institutions are being harmed by the rapid spread of damaging falsehoods via the Internet," he writes. "We live in that world. What might be done to reduce the harm?"

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Sunstein calls for a "notice and take down" law that would require bloggers and service providers to "take down falsehoods upon notice," even those made by commenters - but without apparent penalty.

Consider how well this nudge would work. You blog about Obama-Ayers. You get a letter claiming that your facts are wrong so you should remove your post. You refuse. If, after a court proceeding proves simply that you are wrong (but not that you committed libel, which when a public figure is the target is almost impossible), you lose, the penalty is . . . you must take down your post.

How long would it take for a court to sort out the truth? Sasha and Malia will be running for president by then. Nobody will care anymore. But it will give politicians the ability to tie up their online critics in court.

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There are better ways to get to the truth. The remedy for false speech is more speech not less. The sunstein "remedy" would lead to groups on both sides organizing "take down" efforts to attack the other side whenever there is speech with which they disagree. You would then have a tussle over whether the take down demand was true or itself should be taken down.