At the end of February 2020, Cass Sunstein, the academic lawyer and “nudge politics” entrepreneur who was once Barack Obama’s regulatory tsar, wrote an opinion piece about Covid-19 for Bloomberg News. “A lot of people are more scared than they have any reason to be,” he complained; the real peril was “excessive fear”, which might hurt the economy. Within a month, more than 1,000 people had died in New York alone. In his new book about what we can do to mitigate the spread of false information in society, Sunstein castigates the Fox News anchor Sean Hannity for failing to take Covid seriously on 27 February – the day before his own opinion piece, which he mysteriously fails to mention. Must Sunstein now cancel himself?
Sunstein was not lying, any more than Hannity was: they both believed that the risk of coronavirus was being overstated. But Sunstein was doing one thing that Hannity was not: he was presenting himself as an expert by adopting a wonkish pseudo-scientific tone, ascribing the supposedly ungrounded fears about the new virus to cognitive bias: one he himself named “probability neglect”. This appeal to the realm of the “cognitive” lent unearned rhetorical authority to Sunstein’s pronouncements about the virus, which were no less dismissive than the Fox News presenter’s.
Luckily, Sunstein can be merciful. “I am not suggesting that in a system committed to freedom of speech, anything said by Hannity should be regulable in any way,” he writes, which is convenient. However, there are a lot of other things he wants to regulate more heavily, including deliberate falsehoods, libels and conspiracy theories.
Who, though, will decide what is false and whether it should be banned? Why, the government, best understood as a depersonalised version of Sunstein himself, well known as he is for the paternalistic assumptions of “nudge politics”, the point of which is to leverage ordinary people’s cognitive biases to trick them into doing what the nudger believes is best for them. (Examples of such nudging for which success has been claimed include switching employee retirement plans from opt-in to opt-out, or putting healthy foods at eye level in supermarkets.)
Government in Sunstein’s image will be similarly benevolent once given, as he wants, “the power to regulate certain lies and falsehoods”. If we can outlaw perjury and false advertising, why not more? Sunstein is not persuaded by John Stuart Mill’s argument in On Liberty that the desire to suppress falsehoods is based on an erroneous “assumption of infallibility”, perhaps because the assumption of infallibility is a prerequisite for someone designing political nudges.
“It is true and important,” Sunstein allows, “that any effort to regulate speech will create a chilling effect.” People will be dissuaded from saying true things as well as false things, for fear of prosecution. But in Sunstein’s view the right amount of chilling effect is not zero: we should instead aim for a state of “optimal chill”, by which he does not appear to mean Netflix and pizza.
Any “chilling effect” is by contrast anathema to the UK government, or so it claims: the phrase appears three times in the announcement of its new higher education (freedom of speech) bill, the aim of which is allegedly to hold “universities to account on the importance of freedom of speech in higher education”. One example of the “chilling effect” it seeks to prevent is the fact that “over one hundred academics signed a letter expressing public opposition to professor Nigel Biggar’s research project Ethics and Empire, because he had said that British people should have ‘pride as well as shame’ in the empire”. You might suppose that signing a letter opposing an academic project is just the kind of academic freedom of speech that the government claims to want to protect; really, this is about chilling inconvenient criticism.
The underlying philosophy of this sort of performative culture-war meddling, though, is in perfect harmony with the view Sunstein takes in this book: he considers the subject only from the perspective of whether we should “allow” certain falsehoods that he considers noxious, rather than whether we should censor them. It is a world in which everything is forbidden unless it is explicitly permitted.
This is necessary, or so the book’s argument goes, because the status quo is leading us to chaos and ruin. “Many people are now being subjected to ‘cancellation’ on the basis of lies, some of which are libellous,” Sunstein claims, with no citation given. (The UK government, too, promises with its new legislation to “stamp out unlawful ‘silencing’”, giving no examples: and if it’s already unlawful, why pass a new bill?) Sunstein does give some concrete examples of falsehoods that he thinks should be officially suppressed, though: for instance, the “Pizzagate” conspiracy of 2016 that Hillary Clinton was involved in a paedophile ring, or “negligent falsehoods about actors”.
Any refusal to stamp out such falsehoods constitutes, Sunstein does not shrink from saying, a threat to democracy. “Citizens might lose faith in particular leaders and policies,” he worries, “and even in their government itself.” Whenever someone tells you that something must be done for the sake of preserving people’s faith in democracy, you should check your wallet. How much faith, exactly, are people still imagined to have? Surveys show public trust in western governments declining ever since the Pentagon Papers and Watergate proved conclusively to US citizens that their government could and would lie to them if it felt like it.
Today, of course, we live in an age of incontinently lying “democratic” governments. Donald Trump is not named in this book, but Sunstein alludes to him when he writes: “The real fake news is the cry of fake news.” Boris Johnson, meanwhile, is not simply a man who has been sacked from two previous jobs for lying, he is, in the philosopher Harry Frankfurt’s definition, someone who simply doesn’t care what is true and what is false, and is simply too lazy and contemptuous to bother finding out.
So if it’s to be the government’s job to regulate lies, what happens when that power rests in the hands of a lying government? Yes, it’s the old quis custodiet ipsos custodes question, which applies just as much to the social media giants whom Sunstein praises in this book for their “inventive” approach to the problem, such as tagging dubious statements with “get the facts” and so forth. But who is accountable when Twitter decides to suppress links, as it did last October, to a New York Post story about Hunter Biden? In a recent financial statement, though not in this book, Sunstein discloses having done consulting work for Facebook and Apple, so he is perhaps inclined to take a friendly view.
The formula Sunstein arduously arrives at for his new regulatory scheme is as follows: “False statements are constitutionally protected unless the government can show that they threaten to cause serious harm that cannot be avoided through a more speech-protective route.” But this is precisely what autocrats such as Viktor Orbán and Vladimir Putin claim they are showing when they shut down dissent. We could have a law, Sunstein also suggests, “that speakers may be fined for knowingly spreading lies about candidates for public office”, as though such power could never be abused.
In Sunstein’s world, though, such powers will never be abused (perhaps because of magic democracy), and instead will regulate speech smoothly for everyone’s increased benefit. What shall we call the new government department responsible for such regulation? If only “the Ministry of Truth” didn’t have such unfortunate connotations. Don’t sweat the details, though. “The only question is whether it is possible to administer such a system,” Sunstein writes. “The best answer is that when there is a will, there is a way.”
This isn’t an answer but merely a hand-waving hope, quite apart from the general rule that when you see an American popular nonfiction writer claiming to identify “the best answer” to something, you should check your wallet again. Happily, at least, the best answer to the Covid-19 pandemic wasn’t, in fact, to lecture people about their cognitive failures to understand probability, but more along the lines of what celebrated legal scholar Sunstein told the trusting readers of Bloomberg News less than a month later: that lockdowns actually work.
• Liars: Falsehoods and Free Speech in an Age of Deception is published by Oxford (£17.99). To support The Guardian, order your copy at guardianbookshop.com. Delivery charges may apply.
