But what if the rumors and theories are true? Cass Sunstein doesn't care, it would seem. Truth is not only no defence, it is not even to be tested in a court: The government just decides you are wrong and you get shut down.
This is a good time to remember the other activities that Obama’s “regulatory czar” Cass Sunstein wants to shut down using the tools of copyright protection. For a couple of years now, Sunstein has been advocating that the “notice and take down” model from copyright law should be used against rumors and conspiracy theories, “to achieve the optimal chilling effect.”
What kinds of conspiracy theories does Sunstein want to suppress by law? Here’s one: "… that the theory of global warming is a deliberate fraud." [From page 4 of Sunstein's 2008 "Conspiracy Theories" paper.]
At present, limits on speech are governed by libel law. For statements about public figures, libel requires not just that an accusation must be false, but that it must have been: "… made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard to whether it was false or not". [New York Times v. Sullivan, 1964]
The purpose of the “actual malice” standard is to leave wide latitude for errant statements, which free public debate obviously requires. Sunstein thinks that room-for error stuff is given too much weight. He’d like it to see errant statements expunged. From Sunstein’s 2009 book On Rumors (page 78): "On the Internet in particular, people might have a right to ‘notice and take down.’ [T]hose who run websites would be obliged to take down falsehoods upon notice."
Further, “propagators” would face a “liability to establish what is actually true” (ibid).