Cass Sunstein, the former head of the Obama administration’s Office of Information and Regulatory Affairs, wrote in Bloomberg Tuesday about the “dark side” of a landmark Supreme Court ruling guaranteeing First Amendment protections — claiming that unfettered free speech threatens “public civility” and “democratic self-government.”
A Harvard professor of constitutional law who now sits on President Obama’s NSA surveillance review board, Sunstein criticized the groundbreaking Supreme Court case New York Times v. Sullivan, which enshrined stringent First Amendment protections 50 years ago this March.
The decision shields writers and speakers from lawsuits unless a plaintiff can prove they lied deliberately and with malignant intent, preventing self-censorship and an inevitable chilling effect on speech.
Calling it “the most important free speech ruling in the history of the U.S. Supreme Court,” Sunstein paid lip service to the case before spending the rest of the op-ed attacking it.
“Amid the justified celebration, we should pay close attention to the dark side of New York Times v. Sullivan,” he wrote. “While it has granted indispensable breathing space for speakers, it has also created a continuing problem for public civility and for democratic self-government.”
Sunstein’s concern rested on the “exceedingly high bar” set to prove that a false statement was deliberately and maliciously uttered. “Those who spread falsehoods often do so unknowingly,” he explained, “and terrible sloppiness need not count as recklessness.”
But he also noted that the ruling may allow people to get away with obvious lies. “Even if you’re negligent — that is, you should have known what you’re saying was untrue and defamatory — you are likely to be protected,” he wrote.
Sunstein argued that this kind of unrestricted speech hurts representative government, explaining 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,” he wrote. “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.”
As a result, he warned that the Court’s permissive free speech ruling “can claim at least some responsibility for adding to a climate of distrust and political polarization in the U.S.”
Perhaps sensing the op-ed may be construed as an attack on freedom of speech and the press, Sunstein remarked at the end of the piece that the “court got the balance right in New York Times v. Sullivan.”
But as Mike Masnick of Techdirt notes, “It makes you wonder why he even brought this up in the first place.”
“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,” Masnick continued. “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.”
Last Thursday Sunstein was presented with the American Library Association’s James Madison Award, which purports to celebrate someone who has “championed, protected and promoted public access to government information and the public’s right to know at the national level.”
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