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

Say That Again

from the say-what-now? dept

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.

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