Is hysteria induced ignorance bad? Orin Kerr thinks it is bad, on balance, that the press misinforms the public about the nature of civil liberties restrictions created by PATRIOT ACT, or at least those restrictions that emerge from the law that exists "on the books." On the negative side, he argues that the low quality of coverage of the relationship between civil liberties and the PATRIOT ACT indicates that the press isn't doing its job:
[O]ur democratic system depends heavily on accurate feedback from the press on issues like this. People want laws that strike a particular balance between privacy and security -- whatever that balance is for particular people -- and it doesn't help if the press is telling people that a particular balance has been struck by their current leaders when it fact a significantly different balance has been reached.
On the positive side, however, Kerr notes (1) that inaccurate accounts of the law might have a deterrent effect beyond what accurate information about the law might have, and (2) that the inaccurate accounts may
make it easier to blunt calls for additional steps like the so-called Patriot Act II (which more or less would do what most people thought the first Patriot Act did, at least in terms of scale and siginificance)
Kerr's "negative" is thus itself negated by the "positive": if there had been no outcry, then it's possible that a mix of security and liberty not preferred by people could have been enacted into law in the vein of Patriot II. So if the legislative process is the mere aggregation of preferences, then in some cases public opinion doesn't have to be focused on an accurate portrayal of the current policy, but merely on an accurate rendition (more or less) of a hypothetical policy that is nonetheless preferred by some officials with power to influence policy.
What's important then is that opinion leaders read the tea leaves right and point out the dangers of policies that some leaders prefer. You might say that if opinion leaders then turn around and exaggerate the dangers of current policy in order to head off future policies, then that's deception and should be deplored. If, as Kerr admits is the case with FISA courts, the law is unclear or in flux (meaning, concretely, that some official actors with "bad" preferences can in fact shape outcomes) then it is hard to say with precision what an accurate account of the law would be, and then it's less meaningful to speak of public ignorance and more meaningful to speak of attempts to shape the policy. The press, activism and legal scholarship all have a role here. It seems to me that that's where default rules come in (in a much less crude fashion than I portrayed it yesterday; the literature on rhetoric also sometimes refers to these default rules as "warrants," or the general principles that connect arguments with reasons; see Booth, Colomb and Williams, The Craft of Research, 2nd Edition).
So opinion leaders aren't necessarily deceiving the public when the relevant official actors themselves don't agree on what the policy actually is. One question would be how often this kind of dispute actually exists. Political scientists are probably more attuned to both policy indeterminacy and legal indeterminacy by training, but that habitus can also distort the phenomena, to be sure. I'm still not sure how you recognize an unfair portrayal in, say, the judicial nominations process, however. Be that as it may, in cases in which there is a clear policy and opinion leaders portray the policy unfairly (as Kerr seems to think is generally the case with the ACLU, I gather), then I suppose the question becomes the desirability of the goals of the portrayal itself. There's no reason to be a policy "Kantian" and argue that unfair rhetorical shaping (Kant would say, "lying") is always impermissible. If you believe that it is hard to change law once enacted, it seems to me that the cost of unfair portrayals and the resulting public misperceptions could be worth paying if they help to prevent a bad law from being enacted. If you think that mobilization is what keeps bad law from being enacted, then you're likely to think that unfair portrayals can be good if they advance mobilization. At any event, what's important here is time: the time lag between policy enactment and public attention, and the time lag between public expression of broad opinion and its enactment in policy.
But there is at least one other question here: whether or not people are sophisticated enough to judge the accuracy of information by themselves even if there are distortions by interested elites. Attentive publics are probably sophisticated enough to know that they have to sift through competing claims in order to ascertain the truth of a given matter or at least ascertain the boundaries of legitimate dispute. On this score, I have to admit that I find Professor Kerr's suggestion that the DOJ should produce informational videos about the FISA court, say, as an interesting potential contribution to public debate. But hopefully good information consumers -- likely among attentive publics -- will view such self-interested presentations with the skepticism that they deserve. Given the ideological tenor of other facets of the DOJ website, they would have to be foolish not to view these presentations with skepticism (check out the information on judicial nominations at the Office of Legal Policy, for example).
As for inattentive publics, by definition they're less likely to sift through competing information and more likely to rely on cognitive shortcuts should they be forced to make decisions regarding a policy (perhaps at the voting booth, for example). But it's worth noting that inattentive publics will often rely on party cues, and party rhetoric is likely to be more general and less vulnerable to blanket charges of inaccuracy. If a left-leaning Democrat says something like, "the PATRIOT ACT has curtailed our civil liberties," surely that is at least within the bounds of reasonable interpretation of the goals of the act.
For more on Professor Kerr's posts, see the post at Balasubramania's Mania, the post at Between the Coasts, Randy Barnett's post at The Corner, this attack on Pat Schroeder by Robin Roberts, and Ramesh Ponneru's oblique criticism of Kerr. See also Patriotwatch for a good blog on what civil libertarians are concerned about with respect to PATRIOT and other anti-terrorism legislation.
