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Lying About Cass Sunstein

April 30th, 2009 · 57 Comments

I could probably write a post running several thousand words just listing all the issues on which I disagree with legal/political theorist Cass Sunstein, but I was nevertheless pretty sanguine about news of his appointment to head the Office of Information an Regulatory Affairs. Via David Weinberger, I see that Sunstein is the latest victim of WorldNetDaily’s predictable MO of plugging their writers’ new books by creating a bogus controversy designed to drive eyeballs to the merchandise by way of a thoroughly mendacious article, which also pushes a petition drive by the American Conservative Union aimed at blocking Sunstein’s confirmation.  Even by their usual low standards, this one’s a beaut.

First, it’s just worth being clear on what the OIRA administrator—a post WND keeps referring to as “regulatory czar”—actually does. OIRA reviews regulations promulgated by federal agencies, first, in order to do an independent cost-benefit analysis, and second, to ensure that when the domains of multiple agencies overlap, the rules they make fit together into a coherent system or regulation rather than working at cross purposes.  Probably given his high profile and his prior relationship with Obama, Sunstein will have more sway than previous occupants of the office. But it is not a position with any independent power to create  rules. That means his views on the best approach to gun control, for example, are pretty much irrelevant. He can encourage different agencies to prefer some consistent types of regulatory mechanisms to achieve their substantive goals, and he can object to proposed regulations that his office concludes are inefficient, but he can’t tell the agencies what their goals should be, let alone grant them new regulatory powers.

For the most part, then, it wouldn’t matter all that much if Sunstein held the positions WND attributes to him. But just about every claim in the article falls somewhere on the gradient between “grossly and deliberately misleading” and “a flat-out lie.” The two big ones are the claims that Sunstein supports regulation to create “electronic sidewalks” on the Internet where people visiting partisan Websites are exposed to opposing views, and that he favors some kind of mandatory “cooling off” period before sending angry e-mails, enforced by some kind of government monitoring.

The first idea, floated in Republic 2.0 Republic.com, is thrown out as an idea for countering the online echo-chamber effect, and in a way, WND illustrates his point by basing their characterization of Sunstein’s views on an Adam Thierer post, which they don’t link because it would make it too obvious how dishonest they’re being.  The important thing to note here is that Sunstein is tossing out a bunch of proposals primarily as food for thought, that he’s mostly talking about the desirability of having online norms encouraging links to people you disagree with (and, indeed, the Internet has developed such a norm), and that he briefly suggests that failing this it would be “worth considering” regulation, though he quickly notes that there would be serious free speech objections to any such policy.  Here’s the actual passage about “electronic sidewalks”:

Drawing on the public forum analogy, law and technology specialist Noah Zatz has suggested that through this route, “sidewalks” might be created in cyberspace, allowing speakers to have “specific access” to certain users subject to reasonable time, place, and manner restrictions. An obvious objection is that many people would find this intrusive. Attempting to have access to the Website of Time magazine, they might find themselves opening a page to Citizens for Control of Nuclear Power as well. This is indeed an intrusion. But is it much different from daily life on a street or in a park? Is it much different from reading the newspaper or a general interest magazine? Because it is so easy to close a Webpage, any intrusion on Internet users seems far more trivial than those introduced via public forums and general interest intermediaries, intrusions that produce many benefits.  What is important about Zatz’s proposal is not the relatively complex details, which I do not mean to endorse, but the effort to adapt technology to the service of goals associated with the public forum doctrine.

Emphasis mine. Now, even if offered tentatively, as springboards for further thought, these are in fact, pretty dumb, unconstituional ideas. Don’t take my word for it, just listen to… Cass Sunstein:

I now the believe that the government should not consider that — that it’s a stupid and almost certainly an unconstitutional suggestion…. [My view changed after hearing] counter-arguments and seeing the nature of the Internet as it unfolded over time. “Republic.com” made a mistake of applying to the Internet some ideas that were developed in a world of three or four television networks. … But the kinds of regulation that would respond to my concerns, they’re not really feasible and they probably wouldn’t help. Most problems are best solved privately, not through government. There’s a problem of discourtesy in the world, which is best handled through social norms, which are indispensable. But you wouldn’t want the government to be mandating courtesy.

So, just to be clear: Sunstein once thought some profoundly dumb policies might be worth considering, but realized years ago he was wrong about that. WND does acknowledge that Sunstein’s backed off the idea, but you’re left with the impression that this was a policy he vehemently endorsed and has now sort of reluctantly been forced to abandon hope for—that darn constitution won’t let him. The reality, of course, is more or less the opposite: The idea was a tentative, speculative suggestion he now condemns in pretty strong terms.

Possibly even more outrageous is the spin they put on a suggestion in his recent book Nudge, basically hoping that someone would create a piece of software like Google’s Mail Goggles designed to deter people from hastily sending drunken or angry e-mails. Since Google’s Mail Goggles now exists, their proposal has already been implemented. WND bizarrely interprets this inoccuous idea as a proposal for some kind of mandatory government screening of private communications.

Of the remaining claims they make, two are basically accurate:

In a 2007 speech at Harvard he called for banning hunting in the U.S.

In “Animal Rights: A Very Short Primer,” he wrote “[T]here should be extensive regulation of the use of animals in entertainment, in scientific experiments, and in agriculture.”

He was only talking about hunting for sport, but otherwise these are pretty much correct. If you’re a hunter or a rodeo cowboy, these might be good reasons not to vote for him should he run for Congress—at least if you thought those proposals had any chance of making their way into law.  I have no idea why they’re relevant to his fitness for the OIRA job

In his book “Radicals in Robes,” he wrote: “[A]lmost all gun control legislation is constitutionally fine. And if the Court is right, then fundamentalism does not justify the view that the Second Amendment protects an individual right to bear arms.”

Here’s the quotation in context:

The Court [in United States v. Miller] said that the Second Amendment must be interpreted in light of the constitutional goal of recognizing and permitting militias…. If this pronouncement is taken seriously, then almost all gun control legislation is constitutionally fine…. Of course, the Supreme Court could have been wrong in the Miller case. but its reading of the text is reasonable, and the history is not without ambiguity. I am not insisting that there is no individual right to bear arms; the history can plausibly be read to support that right. But on the Constitution’s text, fundamentalists should not be so confident in their enthusiasm for invalidating gun control legislation.

Fair game, I suppose, if and when Sunstein is nominated to the Supreme Court. Again, not sure what it has to do with the OIRA gig.

In his 2004 book, “Animal Rights,” he wrote: “Animals should be permitted to bring suit, with human beings as their representatives …”

Accurate quote, but grossly misleading out of context. Sunstein was suggesting that in order to enforce animal cruelty laws already on the books, private parties might be given standing to bring civil actions against those who violate these existing laws, rather than leaving it up to government prosecutors to investigate and make cases. Judges could order plaintiffs to pay defendants attorneys fees in order to deter frivolous suits. I’m inclined to agree with his own characterization of this as a pretty modest reform proposal.

WND primarily seems interested in peddling their book and getting media bookings for the author, but they’re also touting the American Conservative Union’s petition to “Stop Sunstein”. That petition makes the following claims:

If confirmed by the U.S. Senate, Sunstein will have unchecked power to severely limit or end hunting freedom and gun ownership in America.   [….] Sunstein will have the power to write regulations dealing with the length of hunting seasons, Federal land use, deciding which species are “endangered,” draconian noise and environmental standards at shooting ranges,  taxes on guns and ammunition, gun shop and gun show regulations, federal record keeping on gun purchases…  And on thousands of regulations dealing with meat processing, life-saving medical research that involves animal testing, animal “rights,” and much more.

This isn’t just false, it’s insane. Go read the executive order establishing OIRA’s responsibilities if you have any doubts. The office is probably more potentially influential than its almost total neglect might suggest, but honestly, do they really expect people to believe that there’s a post with this kind of ludicrously sweeping authority, and nobody’s ever heard of it? Unless they’ve actually finally snapped and think this is true, the petition is just an insulting attempt to collect e-mail addresses from gun enthusiasts. Seriously, this is just conservative leadership’s way of announcing that if you care about the Second Amendment, they think you’re an easily-maniuplated halfwit.

For further reading, check out endorsements of Sunstein for the OIRA job from such flaming pinko commies as Jonathan Adler and Glenn Reynolds.

Tags: Academia · Journalism & the Media · Law · Tech and Tech Policy



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