Cass Sunstein’s mind is a glorious reimagining-machine, reshaping everything it encounters. “Consider the question of whether people pay sufficient attention to their own futures,” he muses in his book, Why Nudge?: The Politics of Libertarian Paternalism. “This is an especially important topic for assessing paternalism, because public officials are often concerned that people enjoy short-term benefits (from smoking, spending, or overeating) at the expense of long-term harm.” Before you eat that, dear reader—did you clear your nutritional choice with an appropriate authority figure?
Equating authority with wisdom, and believing that the act of questioning or criticizing authority is inherently insane (as he explained in another book, Conspiracy Theories & Other Dangerous Ideas), Sunstein is obviously made uncomfortable by America’s legacy of protest and activism. This week, that worldview led our favorite paternalist into a remarkable moment of self-parody, as he wrung his hands over—this is the actual headline of his column this week—“The Dark Side of New York Times v. Sullivan.”
First things first: there is no dark side to New York Times v. Sullivan, full stop. This was the case that arose from a lawsuit filed by the city official in Montgomery, Alabama who oversaw the police department. On March 29, 1960, a group of black clergymen took out a full-page advertisement in the Times denouncing the “unprecedented wave of terror” being directed against activists in the civil rights movement by Alabama government officials.
The authors of the ad got some details wrong: police didn’t literally “ring” themselves around the campus of an African-American state college, for example. But the central claim of the ad was unmistakably correct, and the wave of terror was perfectly real. Alabama state courts gleefully seized the factual errors to slam the Times and its advertisers with a punishingly large judgment, attacking the cause of civil rights with an act of legal retribution. As Gunnar Myrdal wrote after touring the region around that time, Southern courts enforced the segregationist social order at least as much as they enforced anything resembling the law.
So the newspaper appealed to the U.S. Supreme Court, which led to the decision that now serves as the foundation of contemporary libel law. Public figures can’t claim defamation for things written about them in print, now, without being able to show that there was “actual malice” on the part of the publisher. Mistakes aren’t defamation.
And that fact breaks Cass Sunstein’s heart. While the court’s opinion “has granted indispensable breathing space for speakers,” he frets in his column, “it has also created a continuing problem for public civility and for democratic self-government.”
Like his intellectual doppelganger David Brooks, Sunstein knows that our real crisis in America is a crisis of faith: we just don’t believe, anymore. “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,” he writes. Oh, reader, look not upon thy betters with suspicion. Ye must obey them well, with an open mind and a loving heart.
Imagine living inside Cass Sunstein’s head, where criticism of the Alabama state officials of the early 1960s by the civil rights movement is questionable. Those officials were officials, he wants us to understand; and those officials must have been engaging in admirable paternalistic “nudging.”
Relentlessly credulous in the face of authority, Sunstein’s column even accepts at face value the claim that the police made to the court that they “made every effort” to catch the Klansmen who bombed Martin Luther King’s home. Never mind that we now know Alabama police assigned liaisons to the Klan; never mind the fifteen-minute window the Birmingham police gave Klansmen to attack Freedom Riders at the Trailways bus station. In Sunstein’s mental universe, the Southern police of the early 1960s worked hard to catch the bad guys who attacked civil rights activists. The police are authority figures, after all, and so they can’t be wrong.