Cass R. Sunstein is a Professor at Harvard University and the founder and director of the Program on Behavioral Economics and Public Policy at Harvard Law School. He spoke with SSRN about free speech on college campuses, Barbies, and how behavioral science informs law.
Q: You’ve accomplished so much in your career: writing dozens of books and hundreds of articles, working for the White House and the World Health Organization, your work in academia, and I know I’m only skimming the surface there. Through all of this, you’re consistently producing work that’s timely and relevant. How would you say your career and research interests have evolved along with the changing times?
A: I started out as a very law-focused law professor. My principal fields are administrative law – which is about the legal rules governing administrative agencies – and constitutional law. I shifted toward a corresponding interest in behavioral economics and psychology and economics generally. That was partly because some legal issues depend on an understanding of human behavior that may or may not be accurate. Working in the government under President Obama from 2009 to 2012 got me even more intensely focused on regulatory policy – cost benefit analysis, environmental law, climate change issues, public safety, occupational safety, pandemics. Those issues have been at the center of my research interests since I left government in 2012.
I’ve also been interested in Bob Dylan and Star Wars and Taylor Swift, and some of my books have dealt a bit with those topics. Culture, broadly, is something I’ve always been interested in – aren’t we all? – but I’ve been more academically interested in the last 10 years.
Q: You mentioned your focus in behavioral economics, for which you’ve written and co-authored books on the subject, including “Decisions About Decisions” and the New York Times bestseller “Nudge.” How would you say your knowledge about behavioral economics informs your legal understanding and gives you a different perspective than people without that background?
A: Suppose you have a problem, which is road safety, and you want to create legal requirements that reduce the risk that people will get in crashes. What do you do? You might say, “well, we should punish unsafe drivers,” or “we should require people to buckle their seat belts.” And those might be good ideas, but if you know behavioral science, you’ll know something about nudges that might help, such as informing people of certain things, or maybe putting a camera in their car so they can see in back. That’s information coming in. Maybe you have certain forms of signage that can help people be safer. Or maybe you have bumper strips so if people are in a place where going too fast is more likely to cause an accident, the architecture will slow them down. People will be responsive to that.
Behavioral science gives another set of tools and a set of understandings, in addition to those available in law. I’ll give you an example: the government has done a bunch of things to reduce time taxes that it imposes on people. There’s a customer service innovation in Washington to make it simpler for people to sign up for things. You make some things automatic for them. If they’re eligible, they’re just in, and they don’t have to fill out long forms. That reduction of time taxes is heavily informed by behavioral science.
Q: In your paper “Barbies, Ties, and High Heels: Goods That People Buy But Wish Didn’t Exist,” you explore how people consume products or engage in activities, not necessarily because they want to, but because not doing so can offer unwanted signals. What are some of the main takeaways you want people to gain from your research on this concept?
A: This paper is near and dear to my heart, and it’s very much part of my current research focus, which is on the problem of manipulation. Some mundane examples: suppose there’s a party Saturday night, and you really don’t want to go to the party. You want to stay home with your partner, or you want to have an evening off. But if you [don’t] go to the party, you’ll send the signal to the host or friends that are going to be there that you don’t like parties or that you don’t like them. You don’t want to send that signal. So given the existence of the party, you’re going to go.
As another example, say a bunch of people are on a social media site tonight after 10pm, and you think, “Oh my gosh, I wish I could go to sleep or do something work related, or watch a show I want to watch, but all my friends are on. I’ve got to stay on.” Those things are goods or activities that people “purchase” – either with money or with time – that they wish didn’t exist.
For men, ties are “Barbies.” Not talking about Barbies, literal Barbies, but things that are causing losses to be self-conscious about the risk that people are buying with money or time: something that they wish did not exist. I assert that many men wear ties, but if ties were abolished from the face of the earth, a lot of men would be really happy. So, a tie is a “Barbie.” For many women, high heels, I understand, are “Barbies,” where the abolition of high heels would be a great thing.
For social media users, we actually have data on this. Instagram and Tiktok are, to some extent, “Barbies.” Young people are going to use TikTok and Instagram, but if they’re asked whether they wish TikTok or Instagram away, a lot of them would say, “absolutely, yes. I wish they didn’t exist.” But they’re going to stay there. I’m thinking there are a lot of things like this, a lot of products. Maybe the latest iPhone is a “Barbie.” We have data suggesting that people want fewer product launches of iPhones, but they’re going to get the newest iPhone. The reason is they don’t want to be with technology that’s behind the times, but if they could have the iPhone 11, they might be plenty happy with it.
Q: In this paper, you suggest that the way to change how these goods are consumed is through collective action, but with how pervasive this is in our culture, what do you think would need to change in society for that kind of progress to be feasible?
A: Sometimes small groups can recognize – either as a group or with leadership – that they’re dealing with a “Barbie.” When I was in the government, there were a lot of meetings that were, by tradition, either hour or half-hour meetings, and I created a rule that all the half-hour meetings would be 15-minute meetings, and all the hour meetings would be half-hour meetings. My observation is that this was reflective of what most people wanted all along. Once you change a half-hour meeting to a 15-minute meeting, people really get focused early, and they get a gift of 15 minutes extra.
In my family, my sister said a number of years ago that Christmas presents would be exchanged just for children, and adults would not exchange Christmas presents. For my sister and me and various family members, that was so great because we spent a long time finding presents that the adults really didn’t like, and it was basically a net negative. So, small groups can do something.
Now for larger things, it’s harder. I applaud Instagram for developing a nudge where it tells teenagers, after 10pm, “Are you sure you want to stay on Instagram? Maybe you want to get off?” And whether this is the ideal solution or a first step, we don’t know yet, but Instagram, I think, has an implicit understanding that late night Instagram use on the part of teenagers is a “Barbie.” If you can encourage people to get off, you might be able to solve the problem. I’m thinking we’re a real tip of the iceberg here for private institutions and for governments to [ask], “when are we dealing with a “Barbie” that is actually causing serious harm for people?” That’s going to be increasingly important, with the power of technology to grab us as it grows over time.
Q: You’ve written a lot about free speech on college campuses, recently releasing “Campus Free Speech: A Pocket Guide,” as well as an op ed for the New York Times called “Only the First Amendment Can Protect Students, Campuses and Speech.” In these, you dive into what the First Amendment protects and what it doesn’t. How does educating people about the functions of the First Amendment and free speech help inform difficult conversations and decisions being made amidst controversies, especially on college campuses?
A: This morning, I had a mild car problem. I didn’t know how to solve it, so I went to the car place. The car people knew how to solve my car problem, and I am grateful to them. To think in the abstract about how to deal with, let’s say, racist speech, unpatriotic speech, antisemitic speech, or threatening speech on campus is extremely difficult. We saw in the spring, that if you’re asked, “What do I do? I have students or faculty who are doing this,” that is a recipe for disagreement, and maybe – like me trying to fix a car – it’s not something that I do.
Our culture has built up over the course of hundreds of years, a set of principles for handling free speech controversies. It’s not perfect but it’s extremely impressive and careful. We know that if a person on campus or on the street comes up to another person and says, “If I see you again, you’re toast,” that’s not protected by the First Amendment. That’s a true threat, as it’s called. We know that if three people get together and say, “Let’s conspire to fix prices,” or “let’s conspire to engage in some act of violence,” we’re well on our way to having conspiracy, and that’s not protected by the First Amendment. If I say, “if you buy my book, you’ll never get cancer,” that’s not a very effective form of fraud because I don’t think anyone would believe it, but it is a form of fraud, and it’s not protected by the First Amendment. That’s just the start of categories of agreed upon permission slips for regulators, but there aren’t a lot of permission slips.
So, if someone says, “I think America is a horrible country, racist from the start,” or “I think that Hitler was great,” or “I think that communism is beautiful, and we should go there as fast as we can,” those are all protected. That won’t answer every question that educational institutions have to grapple with, but it will answer the vast majority of them, and it’ll answer them pretty well. That’s my exercise in “automobile repair” and the subject of my little book on the First Amendment on campus.
Q: What are some things that you think people overlook or maybe don’t understand about the First Amendment and free speech in particular?
A: I think one view is that incitement isn’t protected by the First Amendment. I’ve heard that a lot. There was a great judge named Learned Hand who made that argument, but it didn’t prevail. If I say, “Hey people, let’s all litter, it’s going to be great,” that’s incitement, and it’s protected by the First Amendment. If I engage in speech that’s intended and likely to incite imminent lawless action, that is not protected. Notice that requires an intention and likelihood to produce imminent lawless action, and there’s plenty of incitement where the likelihood of producing lawless action is really low. If I go down the street saying, “steal my book, please. It’s going to be really fun,” I think, as a first approximation, no one would steal my book, so I haven’t incited anything. I think the difference between incitement and violation of the clear and present danger test, as it’s called, is not well understood.
Q: What papers, projects or research are you working on now or in the near future that you’re particularly excited about?
A: There’s a lot. [I’m] doing a paper right now on the relationship between embarrassment and judgments about prevalence. The claim is: if you are really embarrassed about something, you probably won’t talk about that very much. And if everyone else is like you and not talking about it, you will underestimate the prevalence of the thing. [This] will include embarrassment and shame, and there will be a kind of cycle of silence.
I testified before Congress a number of years ago about “Don’t Ask, Don’t Tell,” the military policy which said you can stay in the military if you’re gay, but only if you don’t say so. I said this is not a good policy, that any form of discrimination should be stopped. One member of Congress came up to me afterwards and he said, “You know, when I grew up, there weren’t any homosexuals. There just weren’t any.” And then he paused, and he said, “Oh, there was one guy, he might have been – he lived on a hill.” I just thought that was so interesting, because it wasn’t the case that when he grew up in the 1940’s there were no gay people. He wasn’t lying: he just didn’t know any.
People who have mental health challenges, physical health challenges, who have issues that are extremely widespread, they often don’t know that they’re widespread. That’s because the very thing that makes them ashamed or embarrassed becomes the source of that silence. We now have data [that] just came in that’s supportive of the hypothesis that embarrassment and underestimating prevalence are not just correlated, but causal.
Q: You are one of the most downloaded and highly cited authors on SSRN. How do you think SSRN fits into the broader research and scholarship landscape?
A: I would say to anyone on the planet who’s willing to listen that I love SSRN. If you have a paper that is potentially a source of discussion among people and you’re not ready to publish it in a peer reviewed journal, SSRN is a green light that says, “give it a try.” That is so liberating for writers.
It’s also the case that sometimes there will be a paper that you’ll never put in an academic journal or a peer reviewed journal, but that either for the author or for the world, it’s a good thing that exists. I read so many [on] SSRN, and some percentage of them, they’re never published in academic journals. But they add something important. For both readers and writers, it’s a massive gift. I think the number of people who believe that is very, very high, and the number of people who say it out loud is not very high; let’s not be embarrassed.
More About Cass Sunstein
Cass Sunstein is currently the Robert Walmsley University Professor at Harvard and is the founder and director of the Program on Behavioral Economics and Public Policy at Harvard Law School. In 2018, he received the Holberg Prize from the government of Norway, sometimes described as the equivalent of the Nobel Prize for law and the humanities. In 2020, the World Health Organization appointed him as Chair of its technical advisory group on Behavioural Insights and Sciences for Health. From 2009 to 2012, he was Administrator of the White House Office of Information and Regulatory Affairs, and after that, he served on the President’s Review Board on Intelligence and Communications Technologies and on the Pentagon’s Defense Innovation Board. Mr. Sunstein has testified before congressional committees on many subjects, and he has advised officials at the United Nations, the European Commission, the World Bank, and many nations on issues of law and public policy. He serves as an adviser to the Behavioural Insights Team in the United Kingdom. He is author of hundreds of articles and dozens of books, including “Nudge: Improving Decisions about Health,” “Wealth, and Happiness (with Richard H. Thaler, 2008),” “Too Much Information (2020),” “Decisions About Decisions (2022),” “How to Become Famous (2023),” and “Free Speech on Campus (2024).”
You can see more work by Cass R. Sunstein on his SSRN Author page here.
Photo credit: Rose Lincoln