Cass Sunstein Calls For Broader Use Of Defamation Lawsuit To Curtail “Fake News”

We recently discussed how Trump critics appear to be adopting his tactics and rhetoric as they prepare to take over the Executive Branch and possibly Congress. There is a sense of “Trumpunity,” a license to use any means in the aftermath of the Trump Administration. Now, Harvard Law Professor and Bloomberg columnist has added a Trump-like call for the use of defamation lawsuit to combat “fake news.” That call for defamation actions to hammer media has been one of the most consistent and criticized Trump positions. The call for such media lawsuit is no less concerning when it comes from a liberal like Sunstein.

Like Sunstein, Trump often called for lawsuit to combat “fake news,” a term that has now been dangerously adopted by the left to refer to an ever widening array of positions. Like “disinformation,” it is heavily laden with subjectivity.  The threat to the free press is obvious and was the basis for foundational court decisions.

The standard for defamation for public figures and officials in the United States is the product of a decision over 50 years ago in New York Times v. Sullivan. Ironically, this is precisely the environment in which the opinion was written. The case came out of the highly divisive period of the civil rights movement. The New York Times had run an advertisement referring to abuses of civil rights marchers and the arrest of Martin Luther King Jr. seven times. The Montgomery Public Safety commissioner, L. B. Sullivan, sued for defamation and won under Alabama law. He was awarded $500,000 — a huge judgment for the time. Sullivan’s lawsuit was one of a number of civil actions brought under state laws that targeted Northern media covering the violence against freedom marchers. The judgments represented a viable threat to both media and average citizens in criticizing our politicians.

The Supreme Court ruled that tort law could not be used to overcome First Amendment protections for free speech or the free press. The Court sought to create “breathing space” for the media by articulating that standard that now applies to both public officials and public figures.

Sunstein wrote a column in Bloomberg calling for lawsuits against what he deems “misinformation and fake news.” He declares that “[p]art of the answer lies in a very old remedy: the law of defamation.”  This example are allegations of widespread voting fraud tied to Smartmatic and Dominion Voting Systems.

For the record, I wrote about Dominion suing for defamation weeks earlier.  I have no problem with individuals or companies suing in defamation, including public officials and figures.  In the case of the disastrous press conference by the Trump legal team, I was highly critical of conspiracy theories laid out by Rudy Giuliani and Sidney Powell without support.

Sunstein however goes further to embrace defamation as part of what is becoming a comprehensive assault on the left against free speech. First, he is discussing not the lawsuit that I raised against the attorneys making these claims outside of court. Rather, he is supporting a lawsuit against any media who aired views indicating agreement with the theories. Sunstein wants major companies to sue contributors, commentators, or columnists who express their own belief that there could be such manipulation of computer systems.  The clear purpose is to chill anyone who would express views deemed “misinformation” to people like Sunstein.  Sunstein states:

“Let’s stipulate that it might be hard to show that people at Fox, Newsmax and One America News actually knew they were promoting stories that were untrue. If so, it’s relatively easy to argue that their statements about Smartmatic and Dominion were “recklessly indifferent” to the question of truth or falsity.”

Really? The action would be against news media for allowing figures to agree with the arguments of Powell and others that these systems could have been manipulated. These are views that have a clear technical basis. Many of us criticized the theories because they did not seem to explain how the paper record matched the electronic count after official recounts.  However, there are many such controversies with a mixed of legal, political, and technical elements. These are systems that were new for many jurisdictions and certainly new for many commentators and citizens.  This is a dangerous area to use defamation law to deter people from expressing their viewpoints on the election and the legitimacy of the results.

Second, Sunstein is calling for an even broader application.  He recognizes that he is taking a doctrine designed to protect speech to restrict speech.

“That’s deeply ironic, because the ruling was originally meant to provide a shield — giving broad protection to journalists, broadcasters and speakers of all kinds on the theory that most false statements are relatively innocent. In the court’s apparent view, “knowing falsehoods” — lies — would be pretty rare, and even recklessness would be unusual.

That was then, and this is now.”

It is that easy. When New York Times v. Sullivan was working to protect interests favored by Democrats, it was inviolate as a shield.  Now, however, they want to use it to stop others from speaking “as a potent weapon not only against those who peddle lies, but also against those who are heedless of truth.” Of course, there are ample ways for people like Sunstein to simply counter such views; to use their own free speech to combat what they view as bad speech. Indeed, most of us heard experts on the issue and rejected the theories. This however is not about combatting bad speech but preventing speech generally.  As Sunstein declares “it is increasingly clear that in democracies intent on self-preservation, victims of damaging falsehoods need, and deserve, a sword.”

The call is all too familiar to those in the free speech community.  Many on the left have embraced censorship and speech crimes, particularly in curtailing speech on the Internet and social media.  Indeed, some have embraced the position of China in such speech controls. Biden has tapped one of the most outspoken anti-free speech figures for a key position on his transition team.  The calls also mirror the European view that has destroyed free speech on that continent. We have previously discussed the alarming rollback on free speech rights in the West. It is a trend that seems now to be find support in the media, which celebrated the speech of French President Emmanuel Macron before Congress where he called on the United States to follow the model of Europe on hate speech.

In January, Biden called for greater speech controls on the Internet and denounced Twitter for allowing others to speak freely. In insisted that tolerating such views in the name of free speech is same as “propagating falsehoods they know to be false.” Biden called for companies to bar Trump views on such things as mail-in voting as an invitation for fraud.  He is not alone. Congressional leaders like House Intelligence Committee Chair Adam Schiff have called for labeling and removal of material with some members directly threatening a legislative crackdown. This week, Speaker Nancy Pelosi denounced Facebook CEO Mark Zuckerberg for resisting speech monitoring and censorship as a matter of free speech. Pelosi lashed out that those who want to preserve a free speech zone are “all about making money,” ignoring free speech advocates who have no financial interest in these companies. Pelosi said that opposing such monitoring means that social media companies simply want “to make money at the expense of the truth and the facts” and are trying to “hide under the freedom of speech.”

These efforts are drawing upon the work of academics who are pushing for greater censorship and speech controls. The Atlantic published an article by Harvard Law School professor Jack Goldsmith and University of Arizona law professor Andrew Keane Woods calling for Chinese style censorship of the internet.  They declared that “in the great debate of the past two decades about freedom versus control of the network, China was largely right and the United States was largely wrong” and “significant monitoring and speech control are inevitable components of a mature and flourishing internet, and governments must play a large role in these practices to ensure that the internet is compatible with society norms and values.”

Sunstein’s call to use defamation as a sword rather than a shield would add another weapon in this comprehensive attack on free speech.  Limiting free speech has now become chic in academic circles.  There is a growing view of free speech as not a goal to be protected in our constitutional system, but a danger to be combatted. Indeed, for many, it seems like you cannot be entirely woke unless you are willing to deny free speech or academic freedom to others.

Sunstein is right that he is seeking to convert New York Times v. Sullivan into a sword rather than a shield. That sword will then right down free speech, not lies. Indeed, the reduction of free speech will only serve to protect false statements. With corporate censorship and litigation threats, there will be a chilling effect on those who are willing to challenge majoritarian views, or, in the case of media companies, willing to air such opposing views. That is the point of all of these “swords” — to strike down views that you no longer want to hear.

30 thoughts on “Cass Sunstein Calls For Broader Use Of Defamation Lawsuit To Curtail “Fake News””

  1. Anyone wanting legislated, corporate or judicially set morality needs to brush up on history especially considering the corruption in these bodies that is revealed more and more every day. Now that social media edits content, by definition they are publishers in the public domain and should be treated the same as all publishers. Besides, the terms offensive, hate, racial, etc are all subjective and therefore cannot be adequately defined. The judiciary who be the final arbiter has shown itself of late to be either incompetent or politically biased.

  2. Poland seems to have taken direct action to stop Big Tech from censoring speech.

    Justice Minister Zbigniew Ziobro of Poland “announced the legal initiative earlier this month aimed at enabling internet users to file complaints against the removal of online posts as well as the creation of a special court for freedom of speech,” according to Poland In.

    “Under its provisions, social media services will not be allowed to remove content or block accounts if the content on them does not break Polish law.

    “In the event of removal or blockage, a complaint can be sent to the platform, which will have 24 hours to consider it.

    “Within 48 hours of the decision, the user will be able to file a petition to the court for the return of access. The court will consider complaints within seven days of receipt and the entire process is to be electronic.”

    If a “special court” rules in favor of the plaintiff and the internet service does not obey the ruling, it can be fined up to roughly $2.2 million (1.8 million EUR).

  3. In the early days of our republic, we had an effective deterrent against malicious, anti-personal infowarfare….it was called the duel.

    Thought too severe a punishment, dueling was eliminated in favor of torts as the deterrent.

    Then, the Sullivan case came along, and SCOTUS essentially dissolved the deterrent effect of defamation law. Since then, with the internet, we have unrestricted, ad-hominem infowarfare against persons and organizations. Threats to personal freedom and safety are published under 1st Amendment protection. These are marks of an under-disciplined information space, and a society so drunk on freedom and dismissive toward responsibility that collapse into total chaos — where nobody knows who or what to believe — is on the invitation list.

    As I have stated previously, infowarfare (deceitful) postings do not take nearly the same amount of investigative digging to come up with as compared to standards-based truth-gathering. Weaving a compelling story that confirms existing bias is much easier and cheaper than ferreting out the truth in an environment where everything passed into media has a spin put on it. Therefore, it is naive and incorrect to auger that untruths can best be defanged by airing refuting evidence. The evidence may be impossible to collect in the needed timeframe (e.g., an election, discovery time in court case). Much more balanced in their power and economics are a multiplicity of inforwarrior voices, each one trying to bend perception and belief toward their causes, or discredit opposing narratives — but none of these voices representing a neutral, stands-based truth-gathering process. I call it info-warfare babble.

    I believe we need to protect stands-based journalism as a bastion of responsibility-taking for truth-gathering, and a natural antagonist and deterrent to propagandists. If we don’t, expect it to be completely taken over by manipulative infowarriors.

  4. Sunstein in his deceptively scholarly way is capable of doing almost as much harm in the world as his bloodthirsty, war-criminal wife.

    1. As the “power to tax is the power to destroy” so is the power to suppress free speech, i.e. speech the progressives find an impediment to their schemes.

  5. Truth is: free speech and the law of defamation were just fine before the SCOTUS’ social engineering in NY Times v. Sullivan formulated in large part to protect their elevated-to-level-of-government Fourth Estate buds. That decision protects too many fools and knaves from justice for their stupidity, maliciousness and political wrangling. Let’ em defend their rubbish in a court of law before the public in the persona of the jury. We used to have confidence in that system to ferret out truth.

  6. Sum of Professor. We won we can become full blown fascist socialists and ditch the Constitution of the United States whatever that was and something they call a Constitutional Republic what ever that was and install the Union of Soviet Socialist America then join with Canadian Professors and start gunning for Mexico. No fear remember the Supreme Court and the US Military backed off and bowed out. It’s our turn to sound De Guello.,

  7. The position taken by this Professor and others is quite likely more damaging to our liberty than the antics of Giuliani and Powell.

    1. You mean the “It is ok if my side does it, but when the other side does it then so horrible!” position?

  8. Turley, GTH. Where’s the column on the original purveyor of Trumpunity, you tool.

    More currently, where’s the column on admitting how wrong you were to advocate Biden join in on taking the BS conspiracies claims seriously?

    Where;s the column on Trump’s Stone and Manafort pardons being obviously the last act in a conspiracy to obstruct justice. He better resign and get Pence to pardon him.

    Where;s the column on Trump trying to strong arm state legislators to overthrow a federal election or States (18 of them) suing to disallow the votes of other states because they didn’t like the outcome (the GOP Idaho Sec of State did not join in because he said his state did exactly what is alleged in the Texas suit, but because Idaho went for Trump, it was not a target.)

    There are huge legal issues in every day’s news lately and your blindness to them while you hawk Hunter Biden and “Democrats farted” columns says all we need to know about your seriousness and real concern for America and it’s laws and principles.


    1. Pardons as part of a conspiracy to obstruct justice? There was no wrongdoing to conceal, you gaslighting misanthrope.

  9. Bear in mind that these attitudes represent the very persecution our ancestors, the ones whose descendants actually founded this country, not those who came later to reap the rewards others had sewn, came to this country to get away from. As one columnist recently said, Progressives, who are the literal descendants of the Puritans, are Puritans without God. Their sole philosophy is imposing their beliefs on everyone else.

  10. And what is “fake news?”

    Sunstein and his clique will tell you — after the fact.

    Can you say “Inquisition?”

  11. There are some intertwined ideas and personal relations that animate the world of people like Cass Sunstein, He believes in “choice architects”, leading thinkers guiding the choice of the uninformed masses. He is a proponent of judicial minimalism, claiming that judicial review of constitutionality of laws is wrong and that laws need only the interpretation of the executive branch. He has long been a critic of the first amendment and believes that constitutional protection of free speech no longer serves democratic goals. Note that basic human right of free speech is demoted to secondary consideration of what makes democracy thrive for Sunstein. This is and old argument concerning the “liberties or rights of the ancients” which are political rights versus basic human rights,”the liberties of the moderns”. The former was crucial to Greek political thought and the latter informed and inspired our founding fathers establishment of the constitution as the institution of preserving basic human rights of life, liberty and property.
    Stephen Breyer’s “Active Liberty” has similar reasoning. He thinks that the spirit of the constitution is animated by the political freedoms of the ancients and pretty much favors democratic purposes over rights of free speech. For example , he was for the limitation of corporate free speech in Citizens United since he thought that what he considered disinformation hurt democratic exchange of ideas. ( The other side of the coin is ,of course, that our constitution sets limits on democratic voting which constrain what the democratic process comes up with. ) Breyer’s thought is very similar to Suntein’s thought.
    Sunstein is married to Samatha Power, and was once involved with Martha Nussbaum, the Communitarian enthusiast, who thinks that the government should coerce an equal starting point of human capabilities, an even stronger version of equal opportunity, where not only are roadblocks to success eliminated but each person has an equal right to the same probability of success as every other- guaranteed health ,college and so on. Nussbaum was involved with Amartya Sen, the Nobel Prize winner in Economics, who developed the capability approach of government essentially coercing a the common good, rather than the limited government view of preventing harm and letting individuals create their own goodness (and developing an increase in one’s capabilities would be part of that freedom). Nussbaum and Sen’s capabilities are termed “active freedoms” rather than “passive freedoms” protection against basic harms to life liberty and property.
    Example: Recently Francis Fukuyama, the wide ranging political and economics commentator, wrote in Foreign Affairs, that we need a national draft for public service (not just for war emergencies). His justification of this forced labor was that it would have a nice effect on the assimilation of immigrants if everyone were required to work in the same “common good ” engendering national service force. Everyone getting used to each other is his justification for government non- necessary forced labor.
    Indeed, Communitarianism, pragmatism, socialism, choice architects and judicial minimalism all share in the notion that goodness and ideals need to be coerced and that we need harsh punishment for those who dont go along.

    1. This is an old racial struggle. A hundred years ago, the Jew Walter Lippmann was arguing for government by Jewish experts while the gentile Dewey argued for democratic rule by an uplifted and educated populace. We’re still fighting the same war.

    2. But, don’t worry, JT can take it. He’s protected in the culture just like academics like Sunstien and Sen. The culture can only vilify and threaten, which the “other side” reciprocates in. But the danger is when officials take the “Citizen’s United” approach. They install a committee of elite guardians who will “pre-screen” the speech in an effort to block the People from ever hearing (or seeing) it. Bozos like us can blather all we want in the blogosphere, but the real danger to the First amendment is when demagogues think they can install their goons at the controls. Believe me, civil lawsuits are only the first step, and if Sunstien tells you it will stop there, he’s lying. Simply to shame the “fake” newsmakers in the courts will only make for hot, ugly spectacles, but do nothing to stem the flow. Probably just the opposite. No, it’s when the Politburo takes full control of the media – to the extent of confiscating our devices – that Sunstien’s real purpose will be realized.

  12. Free speech has its limits. Turley just complains about the simple idea of free speech without getting into the details of what these professors are really talking about.

    It’s guaranteed that even here in Turley’s own blog free speech would be controlled. Otherwise anything that is truly offensive and inflammatory would never be removed from this blog. But, if the comments become so connected to Turley as a site where racists and bigots and conspiracy theory nut jobs prevail Turley can be directly associated with being such a person.

    But hey, free speech cannot be threatened, right?

  13. It’s ironic that the tactics and behavior that Turley didn’t criticize now seems to be something to be concerned about when democrats use them.

    Turley didn’t seem so concerned when trump and his supporters accepted such tactics and behavior. Now suddenly it’s something to scrutinize? Please. I think the old adage “what goes around comes around” applies here. Turley should be defending such tactics because he had no issue with them when Trump used them.

    1. Trump’s supporters never “accepted such behaviors”. They were victimized by them. You’re lying.

      1. Both are true. Trump supporters were victimized into accepting such behaviors. They do cheer him on enthusiastically.

        1. Because, bottom line, trump has always been willing to punish who trump supporters hate most. They’re willing to be pawns in a pandemic for that. They’re willing to be financially fleeced for it. They’re willing to give up on a democratic republic for it. It’s quite a fascinating dynamic, actually.

          I think they’re accutely sensitive to the demographics shifting against them by the second.

          Let’s take a look at an issue affecting farmers in the midwest…, on election day a contract of march soybean oil was trading at roughly $32.80/bushel. Today, it’s trading in the $40.50/bushel range. Basically a 25% jump since it became clear trump and his catastrophically awful trade policy with China is getting close to being in the rear view. Yet a staggeringly large percentage of these farmers would probably feel at home at a rally where trump would rail on about the ‘china virus’ and play their contagion role in a super spreader event. China was the single largest buyer of American soybean complex product.

          It’s a head scratcher.

          Elvis Bug

  14. Sprec Frei. Or forever hold your piece. If you do hold your piece then aim it at the commies, Nazis and Dems. Pee on command.

  15. Sunstein is the ultimate liberal sissy girl.

    Wants to be protected when he speaks; wants laws to punish those who speak against him.

    I assume that Sunstein is Jewish; doesn’t he know that much of what happened to the German Jews in the mid-30’s was done legally – the Nazis just amended the law?

    Sunstein probably thinks: “This time we have the law on our side.”

    I would suggest that he think about Robespierre who also had the law on his side – for a time.

    The stupidity (and venality) of liberals never ceases to amaze me.

    1. Sunstein is no liberal. Nor is he “conservative.” Read wiki and they provide numerous examples.

      There is a simple way to parse that. He is a fan of big government federal power.

      He is in favor of totalitarian chicanery by government to manage public debate according to how the billionaires see things. He literally recommends conspiracy among government actors, to frame debate, to defeat conspiracy theories. This sounds crazy evil, and maybe it’s evil, but it aint crazy. Allow him to elaborate:

      He may not be a good person, but he is smart, very smart

      Saloth Sar

  16. Again, what you’re looking at is something you won’t acknowledge: academe regards the rest of us as pupils engaging in classroom disruption. The answer is one you won’t acknowledge: to strip academe of most of its influence and function in society.

    1. Yes but to strip them is impossible without breaking those who pay them to do their thing, the billionaires

      but how do they do it. they don’t give to them all. they lead the camel by the nose, mostly by owning harvard yale and other top schools

      the private univeristies get the big donor dollars obviously, not public.
      harvard is biggest endowment like over $38 billion
      bill and mindy gates gave over $110 million to harvard.

      there is a tiny excise tax on university endowments even though they’re nonprofits. that tiny excise should be more.

      they should pay property taxes too and make their “voluntary” municipal payments public, not shady private deals, as is the case now

      most of all kick the billionaires in the knees hard, attack their money with RICO, and we will have a nation again

      don’t, and we wont. the plutocrats will keep on keepin on, and all the bad things will just increase

      here’s one that’s coming inside the next few years, that seems like a billionaire tyrant’s wet dream:


      Saloth Sar

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