No Tears for Cass Sunstein

Cass Sunstein is, among many things, the co-author (with Richard Thaler). of Nudge: Improving Decisions about Health, Wealth, and Happiness. One reviewer says this about the book:

Cass Sunstein and Richard Thaler contend that the way public choices are framed and presented goes a long way toward determining the kinds of decisions people make. Summarizing some four decades of research in what they call “the emerging science of choice,” they show that people do not always act logically or in their own best interests….

We like to think of ourselves as rational creatures, they point out, but studies show that the choices we make tend to be unrealistically optimistic, biased toward the status quo, and undercut by a subtle and unthinking conformity.

What the research suggests, Sunstein and Thaler say, is that “choice architecture — like the architecture of a well-designed public space — can guide, or “nudge,” people toward making better choices. A nudge is a way of organizing and presenting choices “that alters people’s behavior in a predictable way without forbidding any options or significantly changing their economic incentives,” according to Sunstein and Thaler….

By understanding the power of nudges, they argue, “choice architects” — those charged with the responsibility of organizing the context in which people make decisions — can help to coax people into making decisions that serve them better.

A key to nudging is an old technique known as framing: presenting options in a way that makes the presenter’s preferred option more attractive than the others. A clever used-car salesman, for example, will size up your preferences and pocketbook. He will then prepare you to make an offer on a car at the high end of your price range, or even above it, by showing you less-expensive cars that he believes you won’t like. When he takes you to the car that makes your eyes light up, you are so enchanted by it (because it’s so much better than the ones you’ve already seen) that you hardly blink at the sticker price. If you do make an offer that’s below the sticker price, the best you will do is arrive at the salesman’s reserve price — the lowest offer that he can accept. And you will probably end up paying a lot more than the reserve price. The mirror-image approach, which a salesman may use instead, is to start well above your price range, whet your appetite for something above your price range, and snag you with something that’s still above it but looks good to you because it’s cheaper than what you’ve already seen. The same techniques are employed by clever salesmen of all kinds, including — notably — real-estate salesmen.

I have addressed at length the political aspects of Sunstein and Thaler’s version of the framing technique (and other manipulative tricks), which they call “libertarian paternalism”. (See the list of related posts, below.) My bottom line: There is nothing “libertarian” about pushing people in the direction that you think is best for them. (Though it has become characteristically “libertarian” to urge the state to enact laws — same-sex marriage, for example — that trample on long-established, voluntary social norms and by their enactment to enable state persecution of persons whose beliefs are at odds with “libertarian” views.)

But I have digressed. A writer who seems bent on garnering sympathy for Sunstein uses framing as a way of trying to deflect much-deserved blame for Sunstein’s foray into authoritarianism. I am referring to Andrew Marantz, whose article “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, Sunstein’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. Sunstein deserves every bit of blame that came 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” in the March-April 2004 issue of The Little Magazine, a South Asian journal (thus the British English spellings in the quotations below). Hold your nose and follow Sunstein’s argument in these quotations from “The Future of Free Speech”:

My purpose here is to cast some light on the relationship between democracy and new communications technologies. I do so by emphasising the most striking power provided by emerging technologies: the growing power of consumers to “filter” what it is that they see. In the extreme case, people will be fully able to design their own communications universe. They will find it easy to exclude, in advance, topics and points of view that they wish to avoid. I will also provide some notes on the constitutional guarantee of freedom of speech.

An understanding of the dangers of filtering permits us to obtain a better sense of what makes for a well-functioning system of free expression. Above all, I urge that in a heterogeneous society, such a system requires something other than free, or publicly unrestricted, individual choices. On the contrary, it imposes two distinctive requirements. First, people should be exposed to materials that they would not have chosen in advance…. Second, many or most citizens should have a range of common experiences. Without shared experiences, a heterogeneous society will have a much more difficult time addressing social problems; people may even find it hard to understand one another….

Imagine … a system of communications in which each person has unlimited power of individual design…. Our communications market is moving rapidly toward this apparently utopian picture…. [A]s of this writing, a number of newspapers allow readers to create filtered versions, containing exactly what they want, and excluding what they do not want….

I seek to defend a particular conception of democracy — a deliberative conception — and to evaluate, in its terms, the outcome of a system with perfect power of filtering. I also mean to defend a conception of freedom, associated with the deliberative conception of democracy, and oppose it to a conception that sees consumption choices by individuals as the very embodiment of freedom….

The US Supreme Court has … held that streets and parks must be kept open to the public for expressive activity. Hence governments are obliged to allow speech to occur freely on public streets and in public parks — even if many citizens would prefer to have peace and quiet, and even if it seems irritating to come across protesters and dissidents whom one would like to avoid….

A distinctive feature of this idea is that it creates a right of speakers’ access, both to places and to people. Another distinctive feature is that the public forum doctrine creates a right, not to avoid governmentally imposed penalties on speech, but to ensure government subsidies of speech…. Thus the public forum represents one place in which the right to free speech creates a right of speakers’ access to certain areas and also demands public subsidy of speakers….

[T]he public forum doctrine increases the likelihood that people generally will be exposed to a wide variety of people and views. When you go to work, or visit a park, it is possible that you will have a range of unexpected encounters, however fleeting or seemingly inconsequential. You cannot easily wall yourself off from contentions or conditions that you would not have sought out in advance, or that you would have chosen to avoid if you could. Here too the public forum doctrine tends to ensure a range of experiences that are widely shared — streets and parks are public property — and also a set of exposures to diverse circumstances. A central idea here must be that these exposures help promote understanding and perhaps in that sense freedom. And all of these points can be closely connected to democratic ideals, as we soon see….

The public forum doctrine is an odd and unusual one, especially insofar as to create a kind of speakers’ access right to people and places, subsidised by taxpayers. But the doctrine is closely associated with a longstanding constitutional ideal, one that is far from odd: that of republican self-government. From the beginning, the American constitutional order was designed to be a republic, as distinguished from a monarchy or a direct democracy. We cannot understand the system of freedom of expression, and the effects of new communications technologies and filtering, without reference to this ideal….

The specifically American form of republicanism … involved an effort to create a “deliberative democracy.” In this system, representatives would be accountable to the public at large, but there was also supposed to be a large degree of reflection and debate, both within the citizenry and within government itself. The system of checks and balances — evident in the bicameral system, the Senate, the Electoral College and so forth — had, as its central purpose, a mechanism for promoting deliberation within the government as a whole….

We are now in a position to distinguish between two conceptions of sovereignty. The first involves consumer sovereignty; the second involves political sovereignty. The first ideal underlies enthusiasm for “the Daily Me.” The second ideal underlies the democratic challenge to this vision, on the ground that it is likely to undermine both self-government and freedom, properly conceived.

Of course, the two conceptions of sovereignty are in potential tension. A commitment to consumer sovereignty may well compromise political sovereignty — if, for example, free consumer choices result in insufficient understanding of public problems, or if they make it difficult to have anything like a shared culture….

Group polarisation is highly likely to occur on the Internet. Indeed, it is clear that the Internet is serving, for many, as a breeding ground for extremism, precisely because like-minded people are deliberating with one another, without hearing contrary views….

The most reasonable conclusion is that it is extremely important to ensure that people are exposed to views other than those with which they currently agree, in order to protect against the harmful effects of group polarisation on individual thinking and on social cohesion….

The adverse effects of group polarization…show that with respect to communications, consumer sovereignty is likely to produce serious problems for individuals and society at large — and these problems will occur by a kind of iron logic of social interactions….

The phenomenon of group polarisation is closely related to the widespread phenomenon of ‘social cascades’. No discussion of social fragmentation and emerging communications technologies would be complete without a discussion of that phenomenon….

[O]ne group may end up believing something and another the exact opposite, because of rapid transmission of information within one group but not the other. In a balkanised speech market, this danger takes on a particular form: different groups may be led to dramatically different perspectives, depending on varying local cascades.

I hope this is enough to demonstrate that for citizens of a heterogeneous democracy, a fragmented communications market creates considerable dangers. There are dangers for each of us as individuals; constant exposure to one set of views is likely to lead to errors and confusions. And to the extent that the process makes people less able to work cooperatively on shared problems, there are dangers for society as a whole.

In a heterogeneous society, it is extremely important for diverse people to have a set of common experiences….

This is hardly a suggestion that everyone should be required to participate in the same thing. We are not speaking of requirements at all. In any case a degree of plurality, with respect to both topics and points of view, is also highly desirable. My only claim is that a common set of frameworks and experiences is valuable for a heterogeneous society, and that a system with limitless options, making for diverse choices, will compromise the underlying values.

The points thus far raise questions about whether a democratic order is helped or hurt by a system of unlimited individual choice with respect to communications. It is possible to fear that such a system will produce excessive fragmentation, with group polarisation as a frequent consequence. It is also possible to fear that such a system will produce too little by way of solidarity goods, or shared experiences. But does the free speech principle bar government from responding to the situation? If that principle is taken to forbid government from doing anything to improve the operation of the speech market, the answer must be a simple Yes.

I believe, however, that this is a crude and unhelpful understanding of the free speech principle, one that is especially ill-suited to the theoretical and practical challenges of the next decades and beyond. If we see the Free Speech Principle through a democratic lens, we will be able to make a great deal more progress.

There should be no ambiguity on the point: free speech is not an absolute. The government is allowed to regulate speech by imposing neutral rules of property law, telling would-be speakers that they may not have access to certain speech outlets…. Government is permitted to regulate unlicensed medical advice, attempted bribery, perjury, criminal conspiracies (“Let’s fix prices!”), threats to assassinate the President, criminal solicitation (“Might you help me rob this bank?”), child pornography, false advertising, purely verbal fraud (“This stock is worth $100,000”), and much more…. And if one or more of these forms of speech can be regulated, free speech absolutism is a kind of fraud, masking the real issues that must be confronted in separating protected speech from unprotected speech….

If the discussion thus far is correct, there are three fundamental concerns from the democratic point of view. These include:
• the need to promote exposure to materials, topics, and positions that people would not have chosen in advance, or at least enough exposure to produce a degree of understanding and curiosity;
• the value of a range of common experiences;
• the need for exposure to substantive questions of policy and principle, combined with a range of positions on such questions.

Of course, it would be ideal if citizens were demanding, and private information providers were creating, a range of initiatives designed to alleviate the underlying concerns…. But to the extent that they fail to do so, it is worthwhile to consider government initiatives designed to pick up the slack….

1. Producers of communications might be subject … to disclosure requirements…. On a quarterly basis, they might be asked to say whether and to what extent they have provided educational programming for children, free airtime for candidates, and closed captioning for the hearing impaired. They might also be asked whether they have covered issues of concern to the local community and allowed opposing views a chance to be heard…. Websites might be asked to say if they have allowed competing views a chance to be heard….

2. Producers of communications might be asked to engage in voluntary self-regulation…. [T]here is growing interest in voluntary self-regulation for both television and the Internet…. Any such code could, for example, call for an opportunity for opposing views to speak, or for avoiding unnecessary sensationalism, or for offering arguments rather than quick ‘sound-bytes’ whenever feasible.

3. The government might subsidise speech, as, for example, through publicly subsidised programming or Websites…. Perhaps government could subsidise a ‘public.net’ designed to promote debate on public issues among diverse citizens — and to create a right of access to speakers of various sorts.

4. If the problem consists in the failure to attend to public issues, the government might impose “must carry” rules on the most popular Websites, designed to ensure more exposure to substantive questions. Under such a program, viewers of especially popular sites would see an icon for sites that deal with substantive issues in a serious way…. Ideally, those who create Websites might move in this direction on their own. If they do not, government should explore possibilities of imposing requirements of this kind, making sure that no program draws invidious lines in selecting the sites whose icons will be favoured….

5. The government might impose “must carry” rules on highly partisan Websites, designed to ensure that viewers learn about sites containing opposing views…. Here too the ideal situation would be voluntary action. But if this proves impossible, it is worth considering regulatory alternatives….

Emerging technologies are hardly an enemy here…. But to the extent that they weaken the power of general interest intermediaries, and increase people’s ability to wall themselves off from topics and opinions that they would prefer to avoid, they create serious dangers….

So let’s all put on our brown shirts and march to a public rally at which we will be “allowed” to shout: “Dark is light; black is white; Sunstein is right.”

I once said that Cass Sunstein is to the integrity of constitutional law as Pete Rose is 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. Sunstein’s conversation-over-coffee with Marantz reads very much like the latter.


Related posts:
Sunstein at the Volokh Conspiracy
More from Sunstein
Cass Sunstein’s Truly Dangerous Mind
An (Imaginary) Interview with Cass Sunstein
Libertarian Paternalism
A Libertarian Paternalist’s Dream World
Slippery Sunstein
The Short Answer to Libertarian Paternalism
Second-Guessing, Paternalism, Parentalism, and Choice
Another Thought about Libertarian Paternalism
Sunstein and Executive Power
The Feds and “Libertarian Paternalism”
Another Voice Against the New Paternalism
A Further Note about “Libertarian” Paternalism
Apropos Paternalism
Another Entry in the Sunstein Saga
The Sunstein Effect Is Alive and Well in the White House
Sunstein the Fatuous
Richard Thaler, Nobel Laureate
Thaler’s Non-Revolution in Economics
Another (Big) Problem with “Nudging”