Based on his own words and statements of intent, Cass Sunstein, appointed to the shadowy post of White House Office of Information and Regulatory Affairs, will likely have his eye on the Internet, particularly on us bloggers:
When it comes to the First Amendment, Team Obama believes in Global Chilling.Such suppression of First Amendment rights would be challenged in courts of law, of course. However, the article points out the following disturbing reality:
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.
Sunstein questions the current libel standard - which requires proving "actual malice" against those who write about public figures, including celebrities. Mere "negligence" isn't libelous, but Sunstein wonders, "Is it so important to provide breathing space for damaging falsehoods about entertainers?" Celeb rags, get ready to hire more lawyers.
Sunstein also believes that - whether you're a blogger, The New York Times or a Web hosting service - you should be held responsible even for what your commenters say. Currently you're immune under section 230 of the Communications Decency Act. "Reasonable people," he says, "might object that this is not the right rule," though he admits that imposing liability for commenters on service providers would be "a considerable burden."
"As we have seen," Sunstein writes, having shown us no such thing, "falsehoods can undermine democracy itself." What Sunstein means by that sentence is pretty clear: He doesn't like so-called false rumors about his longtime University of Chicago friend and colleague, Barack Obama.
He alludes on page 3 (and on page 13, and 14, and 45, and 54 - the book is only 87 pages) to the supposedly insidious lie that "Barack Obama pals around with terrorists." Since Sunstein intends to impose his Big Chill on such talk, I'd better get this in while I can. The "rumor," i.e., "fact," about the palsy-walsiness of Obama and unrepentant terrorist Bill Ayers (Ayers referred to Obama as a "family friend" in a memoir) did not "undermine democracy," i.e., prevent Obama's election. The facts got out, voters weighed them and ruled that they weren't disqualifying.
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....If Suntein's proposals become reality, America as the beacon of freedom is finished!