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The Regulatory Czar and the Libertarian: Can YU’s Internet Filter Make Us “Freer?” A Students for Liberty Column

Cass Sunstein, author of more than 30 books and one of the most cited law professors in the country, recently returned to Harvard Law after occupying a powerful position as President Obama’s “regulatory czar” for the last three and half years. Although out of the public view, his “role is considered one of the most powerful in Washington given its ability to shape how laws are implemented.”[1] Sunstein’s political theory and behavioral economics serve to philosophically ground the Democrats’ more expansive vision of the federal government’s power. Much of his work aims to challenge libertarianism’s most basic premises: that government can and should simply “let us be.” In fact, Sunstein believes that increased regulation can make us even freer. Could the same be said about YU’s controversial policy of filtering the internet?

Sunstein, Democrats, libertarians, and Yeshiva students alike all consider the question of what it means to live in a free society. The famous utilitarian philosopher John Stuart Mill developed what has come to be known as the Harm Principle. A precursor to libertarian doctrine, the Harm Principle recommends a minimalist state that respects its citizens’ liberty unless they harm or pose a potential threat to their fellow citizens. In essence, the government can and should simply let its citizens be.

President Obama’s previous regulatory czar, however, has coined a new way of thinking about liberty that brings into question the libertarians’ basic assumption. In Sunstein’s view, it is impossible for a government to simply “let people be” because federal laws and the lack thereof shape the social norms that influence human behavior. These extremely powerful social norms can create complex and difficult societal problems. In order to solve such problems, Sunstein believes that governments should legislate responsibly to shape social norms that favor human well-being and autonomy.

Admittedly, Sunstein’s argument is difficult to appreciate in the abstract. The famous economist Thomas Schelling’s example of mandated hockey helmets clarifies the point. Before the NHL mandated that its players wear helmets, doing so was considered an act of cowardice. Although most individual players may have “secretly” wished to protect their health by wearing helmets, social perceptions of “toughness” made doing so an act of reputational suicide. By allowing the players to play without wearing helmets, the NHL subjugated them to a destructive social norm. Sunstein argues that the players could only be freed by a mandate requiring that all players wear helmets. In circumstances where people are not free to act as they wish because of external, immovable impediments, Sunstein calls upon the government to liberate citizen from these constraints. The hockey helmets example demonstrates, in Sunstein’s view, that very difficult social problems don’t simply solve themselves. It was not within a particular player’s control to alter the social norms that informed his decision to play with or without a helmet. The government had to step in and solve the problem.

YU, in justifying its policy of filtering the internet, might implicitly endorse a similar conception of freedom. One could argue that YU students are “unfree” to do what they truly want to do religiously (i.e., abstain from watching internet porn) because of a particular impediment beyond their control (i.e., their libidos). Certainly, social norms in YU do not enslave students to online pornography. But one might expand Sunstein’s insight to include internal psychological constraints. The YU internet porn watcher is, arguably, unwillingly addicted. In fact, the YU Arevim, a group dedicated to helping those who wish to avoid the spiritual pitfalls of the internet, refer to internet porn as an “insurmountable obstacle” (See Perhaps, the only way to conquer this crippling impediment (i.e., the male libido) is to enact coercive university “legislation.” By filtering the internet, YU promotes freedom: its students, uninhibited by internal, insurmountable constraints, are free to act in accordance with their true spiritual motives.

But where do thinkers like Sunstein and administrations like Yeshiva’s draw the line? What if the YU administration was to argue that students are unwillingly addicted to non-kosher food and that they were, therefore, going to hire enforcers who scavenged the campus for unwilling transgressors. The enforcers might “free” the transgressors from their addictions through a disincentive: students caught eating non-kosher will be fined. This sort of rhetoric reflects a slippery slope argument employed by Sunstein’s detractors. They claim that although filtering the internet and mandating hockey helmets solve tough social problems, such policies pave the way for the eventual abuses and violations of individual liberty.

In response to this slippery slope argument, YU might take its cue from Sunstein, who acknowledges that his “conclusion ought not to suggest that government should be licensed to do whatever it wishes.”[2] In Sunstein’s view, a government ought to place restrictions upon policies that restrict “inalienable rights” or prove ineffectual. As an example of an ineffectual policy, Sunstein cites Nancy Reagan’s “Just Say No” advertising campaign against drugs.

In evaluating Sunstein’s view, libertarians and Yeshiva students will argue that his restriction reduces to a meaningless formality. Sunstein can easily reject the “Just Say No” policy as ineffectual with the benefit of hindsight. But his restriction against “ineffectual policies” cannot prevent the government from establishing new and unprecedented forms of coercion. Only after the government empirically tests its failed coercive policies, can it ban such policies. Likewise, Yeshiva students might grant YU the leeway to solve the problem of porn addiction by filtering the internet. If, however, YU discovers that the filter does not stop the addicts from watching porn (i.e., the policy is “ineffectual”), YU is morally required to abandon such a policy. Perhaps, in its next student survey, YU should add the question, “Do you still watch porn?” in order to gauge the policy’s effectuality.

In addition to the slippery slope argument, libertarians launch an epistemological argument in general opposition to coercion: in order to successfully effectuate social change on any level, one requires knowledge of the particular social facts and individual preferences which government lacks the resources to access. Because individual citizens and students are more deeply invested in and acquainted with the facts of their circumstance than government officials, University administrators, or Roshei Yeshiva, they ought to be entrusted with the power to solve their own problems. This challenge perfectly encapsulates the problem facing a YU administration that wants to help its students avoid pornography. To successfully “solve” the problem of this unwilling addiction, Yeshiva will have to identify and regulate every means by which each student might access porn. Simply put, this is a practical impossibility.  The internet is a juggernaut unhampered by YU dorm filters. Individual students, rather than the administration, are better positioned to structure their lives in a way that will solve their problems. In reply, YU might demonstrate that the policy does, in fact, solve the problem. And if it does, our libertarian is left without an argument

Sunstein replies to the epistemological argument in a different manner: he argues that our aversion to government authority rests upon the contingent fact that government officials are not well positioned to solve local, social problems. Developments in neuroscience, behavioral economics, and other social sciences, however, provide experts with the sufficient knowledge to solve such problems and maximize individual citizens’ well-being. Perhaps, the expert knowledge of politicians and their advisors (like Sunstein) should ameliorate our aversion to their coercive policies. In lieu of Sunstein’s expert neuroscientists and behavioral economist, YU might utilize its Roshei Yeshiva in order to determine the policies that maximize the students’ well-being.

Before closing, I should clarify two mistaken impressions that one might derive from this piece. First, Cass Sunstein certainly does not advocate for the federal government to filter the country’s internet. I have glossed over the nuances of his view through the example of YU simply to highlight and examine his conception of liberty, which involves freedom from oppressive social norms. However, a full elaboration of the nature of the autonomy that Sunstein endorses and the constraints he places upon political coercion lie far beyond the scope of this article.

Second, I do not believe that YU is a public polity. A college administration and political democracy can be regulated by different moral principles. Thus, YU administrators might simply assert that the values reflected in the policy of filtering the internet outweigh the value of promoting its students’ liberty. A student cleverly crafted such an argument in an article titled “Internet Filtration at YU” published in an edition of last year’s Commentator. Implicitly, he commits to a view about the fundamental incompatibility of Torah and core Western values like human freedom. In contrast, I presumed that YU generally values its students’ freedom, and I attempted to construe its policy in light of this presumption. In order to ultimately determine whether YU’s policy is consistent with a quasi-Sunsteinian conception of freedom, one would have to determine whether the filter actually “frees” the addict.

A final critical point about liberty: often, Democrats are accused of failing to appreciate that liberty is crucial to the American ethos. This rhetoric mischaracterizes Sunstein’s central claim: that the libertarian conception of political freedom from coercion does not stand up to close scrutiny and must, therefore, be supplanted by an alternative definition. In Sunstein’s view, people do not simply make life choices in a vacuum. The decisions we make are already structured by social norms which any government necessarily impacts. The sort of political liberty worth having (and capable of being had) must consider the role of social norms in our life choices. Branding such a view as “paternalistic” does not settle the challenge it poses to the classical conception of liberty.



[2] Sunstein, Cass R. Free Markets and Social Justice. New York: Oxford University Press, 1997.