Legal Commentary

A few days ago, over at Salon.com, Glenn Greenwald put up this post, in which he described and criticized a 2008 paper (by Cass Sunstein (now, as Greenwald notes, the head of the President's Office of Information and Regulatory Affairs).  Here is the SSRN abstract of the paper:

Many millions of people hold conspiracy theories; they believe that powerful people have worked together in order to withhold the truth about some important practice or some terrible event. A recent example is the belief, widespread in some parts of the world, that the attacks of 9/11 were carried out not by Al Qaeda, but by Israel or the United States. Those who subscribe to conspiracy theories may create serious risks, including risks of violence, and the existence of such theories raises significant challenges for policy and law. The first challenge is to understand the mechanisms by which conspiracy theories prosper; the second challenge is to understand how such theories might be undermined. Such theories typically spread as a result of identifiable cognitive blunders, operating in conjunction with informational and reputational influences. A distinctive feature of conspiracy theories is their self-sealing quality. Conspiracy theorists are not likely to be persuaded by an attempt to dispel their theories; they may even characterize that very attempt as further proof of the conspiracy. Because those who hold conspiracy theories typically suffer from a crippled epistemology, in accordance with which it is rational to hold such theories, the best response consists in cognitive infiltration of extremist groups. Various policy dilemmas, such as the question whether it is better for government to rebut conspiracy theories or to ignore them, are explored in this light.

Let's put aside (what seems to me to be) the fact that calls by a prominent Bush Administration official -- especially one with the "Information and Regulatory Affairs" portfolio -- to do what Sunstein urged (before he was in the Administration) in the paper be done would be met with howls of protest.  Greenwald concludes:

It is [the] history of government deceit and wrongdoing that renders Sunstein's desire to use covert propaganda to "undermine" anti-government speech so repugnant.  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.

My first (and probably second and third) reaction to Sunstein's paper is like Greenwald's.  That is, the idea of the government intentionally employing covert agents to infiltrate suspect web sites, online conversations, etc., and pose as independent experts in order to bend these sites and conversations more toward the government's liking -- even assuming (as Sunstein does) a "well-motivated government that aims to eliminate conspiracy theories, or draw their poison, if and only if social welfare is improved by doing so" -- seems deeply troubling. 

And yet . . . it surely is in the government's -- or, the political community's -- interest that "conspiracy theories" be engaged and refuted and often government officials -- again, we assume "well-motivated ones" -- are often going to be in a good position to have "the truth of the matter."  As I discussed in more detail in this paper, the notion that sometimes finds its way into free-speech manifestos and First Amendment opinions -- i.e., that it is none of the government's business what people think -- seems clearly misguided.  Ideas matter.  So, why is it that Sunstein's "infiltration" proposal is unsettling, even frightening?  Is it because the enterprise itself is illegitimate, or because we worry that the risk of abuse is too great?  If the latter, can the risks be reduced (in ways that do not require the assumption of "well-motivated government"?)  Any thoughts?