This is the sixth (and perhaps final) installment of a series about Cass Sunstein, whom I have dubbed the plausible authoritarian because of his ability to make authoritarian measures seem like reasonable ways of advancing democratic participation and social comity. The first five installments are here, here, here, here, and here.
Cass Sunstein (CS) became Barack Obama’s “regulatory czar” (Administrator of the Office of Information and Regulatory Affairs), following a prolonged delay in action on his nomination to the office because of his controversial views. This post draws on posts that I wrote during and after CS’s “czarship”, which lasted from September 2009 to August 2012.
Alec Rawls, writing at his blog, Error Theory, found CS on the wrong side of history (to borrow one of his boss’s favorite slogans):
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.”
Why?
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” (op. cit., pages 13-14, no longer displayed).
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 [link broken]; 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 from 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.
As Rawls further noted, CS also wanted to protect “warmists” from their critics, that is, to suppress science in the name of science:
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 obvious: he wants the state to take aggressive action that will make it easier for our powerful government funded scientists to conceal their machinations.
After CS returned to academe, his spirit lived on in the White House, particularly with regard to CS’s advocacy of thought control, which I exposed at length in part 4 of this series.
Thus:
[Obama] Administration officials have asked YouTube to review a controversial video that many blame for spurring a wave of anti-American violence in the Middle East.
The administration flagged the 14-minute “Innocence of Muslims” video and asked that YouTube evaluate it to determine whether it violates the site’s terms of service, officials said Thursday. The video, which has been viewed by nearly 1.7 million users, depicts Muhammad as a child molester, womanizer and murderer — and has been decried as blasphemous and Islamophobic.
“Review” it, or else. When the 500-pound gorilla speaks, you say “yes, sir.”
Way to go, O-blame-a. Do not stand up for Americans. Suppress them instead. It’s the CS way.
CS later regaled his followers with this:
Suppose that an authoritarian government decides to embark on a program of curricular reform, with the explicit goal of indoctrinating the nation’s high school students. Suppose that it wants to change the curriculum to teach students that their government is good and trustworthy, that their system is democratic and committed to the rule of law, and that free markets are a big problem.
Will such a government succeed? Or will high school students simply roll their eyes?
Questions of this kind have long been debated, but without the benefit of reliable evidence. New research, from Davide Cantoni of the University of Munich and several co-authors, shows that recent curricular reforms in China, explicitly designed to transform students’ political views, have mostly worked….
… [G]overnment planners were able to succeed in altering students’ views on fundamental questions about their nation. As Cantoni and his co-authors summarize their various findings, “the state can effectively indoctrinate students.” To be sure, families and friends matter, as do economic incentives, but if an authoritarian government is determined to move students in major ways, it may well be able to do so.
Is this conclusion limited to authoritarian nations? In a democratic country with a flourishing civil society, a high degree of pluralism, and ample room for disagreement and dissent — like the U.S. — it may well be harder to use the curriculum to change the political views of young people. But even in such societies, high schools probably have a significant ability to move students toward what they consider “a correct worldview, a correct view on life, and a correct value system.” That’s an opportunity, to be sure, but it is also a warning. [“Open Brain, Insert Ideology,” Bloomberg View, May 20, 2014]
Where had CS been? He seemed unaware of the left-wing ethos that has long prevailed in most of America’s so-called institutions of learning. It doesn’t take an authoritarian government (well, not one as authoritarian as China’s) to indoctrinate students in “a correct worldview, a correct view on life, and a correct value system”. All it takes is the spread of left-wing “values” by the media and legions of pedagogues, most of them financed (directly and indirectly) by a thoroughly subverted government. It’s almost a miracle — and something of a moral victory — that there are still tens of millions of Americans who resist and oppose left-wing “values”.
Moving on, I found CS arguing circularly in his contribution to a collection of papers entitled “Economists on the Welfare State and the Regulatory State: Why Don’t Any Argue in Favor of One and Against the Other?” (Econ Journal Watch, Volume 12, Issue 1, January 2015):
… [I]t seems unhelpful, even a recipe for confusion, to puzzle over the question whether economists (or others) ‘like,’ or ‘lean toward,’ both the regulatory state and the welfare state, or neither, or one but not the other. But there is a more fine-grained position on something like that question, and I believe that many (not all) economists would support it. The position is this: The regulatory state should restrict itself to the correction of market failures, and redistributive goals are best achieved through the tax system. Let’s call this (somewhat tendentiously) the Standard View….
My conclusion is that it is not fruitful to puzzle over the question whether economists and others ‘favor’ or ‘lean’ toward the regulatory or welfare state, and that it is better to begin by emphasizing that the first should be designed to handle market failures, and that the second should be designed to respond to economic deprivation and unjustified inequality…. [Sunstein, “Unhelpful Abstractions and the Standard View,” op cit.]
“Market failures” and “unjustified inequality” are the foundation stones of what passes for economic and social thought on the left. Every market outcome that falls short of the left’s controlling agenda is a “failure”. And market and social outcomes that fall short of the left’s illusory egalitarianism are “unjustified”. CS, in other words, couldn’t (and probably still can’t) see that he is a typical leftist who (implicitly) favors both the regulatory state and the welfare state. He is like a fish in water.
Along came a writer who seemed bent on garnering sympathy for CS. I am referring to Andrew Marantz, who wrote “How a Liberal Scholar of Conspiracy Theories Became the Subject of a Right-Wing Conspiracy Theory” (New Yorker, December 27, 2017):
In 2010, Marc Estrin, a novelist and far-left activist from Vermont, found an online version of a paper by Cass Sunstein, a professor at Harvard Law School and the most frequently cited legal scholar in the world. The paper, called “Conspiracy Theories,” was first published in 2008, in a small academic journal called the Journal of Political Philosophy. In it, Sunstein and his Harvard colleague Adrian Vermeule attempted to explain how conspiracy theories spread, especially online. At one point, they made a radical proposal: “Our main policy claim here is that government should engage in cognitive infiltration of the groups that produce conspiracy theories.” The authors’ primary example of a conspiracy theory was the belief that 9/11 was an inside job; they defined “cognitive infiltration” as a program “whereby government agents or their allies (acting either virtually or in real space, and either openly or anonymously) will undermine the crippled epistemology of believers by planting doubts about the theories and stylized facts that circulate within such groups.”
Nowhere in the final version of the paper did Sunstein and Vermeule state the obvious fact that a government ban on conspiracy theories would be unconstitutional and possibly dangerous. (In a draft that was posted online, which remains more widely read, they emphasized that censorship is “inconsistent with principles of freedom of expression,” although they “could imagine circumstances in which a conspiracy theory became so pervasive, and so dangerous, that censorship would be thinkable.”)* “I was interested in the mechanisms by which information, whether true or false, gets passed along and amplified,” Sunstein told me recently. “I wanted to know how extremists come to believe the warped things they believe, and, to a lesser extent, what might be done to interrupt their radicalization. But I suppose my writing wasn’t very clear.”
On the contrary, CS’s writing was quite clear. So clear that even leftists were alarmed by it. Returning to Marantz’s account:
When Barack Obama became President, in 2009, he appointed Sunstein, his friend and former colleague at the University of Chicago Law School, to be the administrator of the Office of Information and Regulatory Affairs. The O.I.R.A. reviews drafts of federal rules, and, using tools such as cost-benefit analysis, recommends ways to make them more efficient. O.I.R.A. administrator is the sort of in-the-weeds post that even lifelong technocrats might find unglamorous; Sunstein had often described it as his “dream job.” He took a break from academia and moved to Washington, D.C. It soon became clear that some of his published views, which he’d thought of as “maybe a bit mischievous, but basically fine, within the context of an academic journal,” could seem far more nefarious in the context of the open Internet.
Estrin, who seems to have been the first blogger to notice the “Conspiracy Theories” paper, published a post in January, 2010, under the headline “Got Fascism?” “Put into English, what Sunstein is proposing is government infiltration of groups opposing prevailing policy,” he wrote on the “alternative progressive” Web site the Rag Blog. Three days later, the journalist Daniel Tencer (Twitter bio: “Lover of great narratives in all their forms”) expanded on Estrin’s post, for Raw Story. Two days after that, the civil-libertarian journalist Glenn Greenwald wrote a piece for Salon headlined “Obama Confidant’s Spine-Chilling Proposal.” Greenwald called Sunstein’s paper “truly pernicious,” concluding, “The reason conspiracy theories resonate so much is precisely that people have learned—rationally—to distrust government actions and statements. Sunstein’s proposed covert propaganda scheme is a perfect illustration of why that is.” Sunstein’s “scheme,” as Greenwald put it, wasn’t exactly a government action or statement. Sunstein wasn’t in government when he wrote it, in 2008; he was in the academy, where his job was to invent thought experiments, including provocative ones. But Greenwald was right that not all skepticism is paranoia.
And then:
Three days after Estrin’s post was published on the Rag Blog, the fire jumped to the other side of the road. Paul Joseph Watson, writing for the libertarian conspiracist outfit InfoWars, linked to Estrin’s post and riffed on it, in a free-associative mode, for fifteen hundred words. “It is a firmly established fact that the military-industrial complex which also owns the corporate media networks in the United States has numerous programs aimed at infiltrating prominent Internet sites and spreading propaganda to counter the truth,” Watson wrote. His boss at InfoWars, Alex Jones, began expanding on this talking point on his daily radio show: “Cass Sunstein says ban conspiracy theories, and that’s whatever he says it is. That’s on record.”
At the time, Glenn Beck hosted both a daily TV show on Fox News and a syndicated radio show; according to a Harris poll, he was the country’s second-favorite TV personality, after Oprah Winfrey. Beck had been delivering impassioned rants against Sunstein for months, calling him “the most dangerous man in America.” Now he added the paper about conspiracy theories to his litany of complaints. In one typical TV segment, in April of 2010, he devoted several minutes to a close reading of the paper, which lists five possible ways that a government might respond to conspiracy theories, including banning them outright. “The government should ban them,” Beck said, over-enunciating to express his incredulity. “How a government with an amendment guaranteeing freedom of speech bans a conspiracy theory is absolutely beyond me, but it’s not beyond a great mind and a great thinker like Cass Sunstein.” In another show, Beck insinuated that Sunstein had been inspired by Edward Bernays, the author of a 1928 book called “Propaganda.” “I got a flood of messages that night, saying, ‘You should be ashamed of yourself, you’re a disciple of Bernays,’ ” Sunstein recalled. “The result was that I was led to look up this interesting guy Bernays, whom I might not have heard of otherwise.”
For much of 2010 and 2011, Sunstein was such a frequent target on right-wing talk shows that some Tea Party-affiliated members of Congress started to invoke his name as a symbol of government overreach. Earlier in the Obama Administration, Beck had targeted Van Jones, now of CNN, who was then a White House adviser on green jobs. After a few weeks of Beck’s attacks, Jones resigned. “Then Beck made it sort of clear that he wanted me to be next,” Sunstein said. “It wasn’t a pleasant fact, but I didn’t see what I could do about it. So I put it out of my mind.”
Sunstein was never asked to resign. He served as the head of O.I.R.A. for three years, then returned to Harvard, in 2012. Two years later, he published an essay collection called “Conspiracy Theories and Other Dangerous Ideas.” The first chapter was a revised version of the “Conspiracy Theories” paper, with several qualifications added and with Vermeule’s name removed. But the revisions did nothing to improve Sunstein’s standing on far-right talk shows, where he had already earned a place, along with Saul Alinsky and George Soros and Al Gore, in the pantheon of globalist bogeymen. Beck referred to Sunstein as recently as last year, on his radio show, while discussing the Obama Administration’s “propaganda” in favor of the Iran nuclear deal. “We no longer have Jefferson and Madison leading us,” Beck said. “We have Saul Alinsky and Cass Sunstein. Whatever it takes to win, you do.” Last December, Alex Jones—who is, improbably, now taken more seriously than Beck by many conservatives, including some in the White House—railed against a recent law, the Countering Foreign Propaganda and Disinformation Act, claiming, speciously, that it would “completely federalize all communications in the United States” and “put the C.I.A. in control of media.” According to Jones, blame for the law rested neither with the members of Congress who wrote it nor with President Obama, who signed it. “I was sitting here this morning . . . And I keep thinking, What are you looking at that’s triggered a memory here?” Jones said. “And then I remembered, Oh, my gosh! It’s Cass Sunstein.”
Cue the tears for Sunstein:
Recently, on the Upper East Side, Sunstein stood behind a Lucite lectern and gave a talk about “#Republic.” Attempting to end on a hopeful note, he quoted John Stuart Mill: “It is hardly possible to overrate the value . . . of placing human beings in contact with persons dissimilar to themselves.” He then admitted, with some resignation, that this describes the Internet we should want, not the Internet we have.
After the talk, we sat in a hotel restaurant and ordered coffee. Sunstein has a sense of humor about his time in the spotlight—what he calls not his fifteen minutes of fame but his Two Minutes Hate, an allusion to “1984”—and yet he wasn’t sure what lessons he had learned from the experience, if any. “I can’t say I spent much time thinking about it, then or now,” he said. “The rosy view would be that it says something hopeful about us—about Americans, that is. We’re highly distrustful of anything that looks like censorship, or spying, or restriction of freedom in any way. That’s probably a good impulse.” He folded his hands on the table, as if to signal that he had phrased his thoughts as diplomatically as possible.
I’m not buying it. CS deserved (and deserves) every bit of blame that has come his way, and I certainly wouldn’t buy a car or house from him. He was attacked from the left and right for good reason, and portraying his attackers as kooks and extremists doesn’t change the facts of the matter. Sunstein’s 2010 article wasn’t a one-off thing. Six years earlier he published “The Future of Free Speech”, which I quoted from and analyzed in part 4 of this series. I ended with this:
[T]he fundamental reason to reject [CS’s] scheme its authoritarianism. It would effectively bring the broadcast media and the internet under control by a government bureaucracy. Any bureaucracy that is empowered to insist upon “completeness”, “fairness”, and “balance” in the exposition of ideas is thereby empowered to define and enforce its conception of those attributes. It is easy to imagine how a bureaucracy that is dominated by power-crazed zealots who espouse socialism, gender fluidity, “equity”, etc., etc., would deploy its power.
In an earlier post I said that Cass Sunstein is to the integrity of constitutional law as Pete Rose was to the integrity of baseball. It’s worse than that: Sunstein’s willingness to abuse constitutional law in the advancement of a statist agenda reminds me of Hitler’s abuse of German law to advance his repugnant agenda.
There is remorse for having done something wrong, and there is chagrin at having been caught doing something wrong. CS’s conversation-over-coffee with Marantz reads very much like the latter.
It remains a mystery to me why CS has been called a “legal Olympian.” Then, again, if there were a legal Olympics, its main events would be Obfuscation and Casuistry, and CS would be a formidable contestant in both events.