Choose Counterspeech Over Cancel Culture

11 minute read
Strossen is the John Marshall Harlan II Professor of Law Emerita at New York Law School and past President of the American Civil Liberties Union (1991-2008). She's also a Senior Fellow with FIRE (Foundation for Individual Rights and Expression) and a leading expert and frequent speaker/media commentator on constitutional law and civil liberties.
Paresky is Senior Fellow at the Network Contagion Research Institute (NCRI) and Director of the Aspen Center for Human Development (ACHD)

"Cancel culture” has for years been anathema on the political right. Then came October 7th. Now many on the right advocate canceling.

When cancel culture debates largely focused on controversies about race and gender, those on the right tended to decry it as targeting speakers who displayed insufficient fealty to progressive ideologies, and men caught up in the excesses of the #MeToo movement. Progressives, meanwhile, tended to defend it as amplifying the voices of those from historically marginalized groups, and holding purveyors of disfavored ideas accountable.  

Proponents generally view cancel culture as a culture in which some people are unable to get or keep jobs or friends because they are bigots or because they have abused women or committed other crimes. But that is not how most critics—including both of us—have used the term.

We define cancel culture as a culture so pervaded by unjustified cancelations for expression deemed offensive that many people avoid voicing even majority perspectives, discussing certain topics, and associating with certain individuals for fear of being shamed or shunned, or losing jobs or other opportunities. In a cancel culture, people fear cancelation even for defending the unfairly maligned.

We use the term “cancelation” to refer to situations when, in response to disfavored but constitutionally protected expression (i.e. expression not subject to government sanction), private sector actors impose sanctions that negatively affect the speaker’s reputation, social standing, and professional status. If the targeted expression is constitutionally unprotected, on the other hand, the government may—and should—punish it, as should also be the case when unprotected expression is used in cancelation attempts.

Many cancelation efforts, such as peaceful protests, open letters, and publicly refusing to hire people because of their expression, are constitutionally protected exercises of free speech and association—whether or not these efforts are wise. One of us, Nadine Strossen, wrote the book HATE: Why We Should Resist It with Free Speech, Not Censorship. It expressly champions robust counterspeech as the most principled and effective antidote to hateful speech, attitudes, and action.

Peaceful protests like those during the Civil Rights era are powerful examples. We also vigorously champion counterspeech to condemn terrorism, antisemitism, and support for either one. What does not count as legitimate counterspeech, however, is anything that crosses the line from legally protected to unprotected speech.

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Protests that substantially disrupt a speaker’s presentation, for example, violate the free speech rights of both speaker and audience. This recently occurred at Columbia University, where Secretary Hillary Clinton’s event was significantly disrupted by sustained, boisterous heckling, resulting in the justifiable removal of the heckler. Campus authorities at all public universities and also at the private universities that have adopted free speech policies should remove and punish protesters who materially interfere with events.

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Another type of unprotected speech is a “true threat”: when the speaker targets a person or a group of people and intentionally or recklessly instills a reasonable fear that they will be subject to violence by either the speaker or someone acting at the speaker’s behest. A dramatic recent example is the Cornell student who was arrested and is being prosecuted for his alleged online posts of virulently antisemitic, threatening screeds directed at Jewish Cornellians.

Addressing an individual or group in an intimidating manner is also a legally punishable “true threat,” even during an otherwise peaceful protest. At Harvard, an episode caught on video by a targeted Israeli graduate student appears to fall into this category. The video depicts a group of anti-Israel demonstrators encircling the student at a menacingly close distance, blocking his path while telling him to “exit,” and shouting “shame.” He can be heard saying, “Don’t grab me,” “don’t touch my neck,” “you’re grabbing me,” “stop touching me,” and “I live here!” An FBI report indicates that he was physically assaulted.

Of course, physical assault is illegal. To convey an unlawful threat, however, no assault is necessary, and the speaker needn’t even intend to commit violence. If the speaker either intends to instill a reasonable fear of violence, or disregards a substantial risk that his expression would instill a reasonable fear, the harm is done. When threatened individuals experience such fear, they are deterred from exercising their free speech rights and even their right to freedom of movement. When such individuals are targeted due to their religious, ethnic, or national identity, the expression’s deterrent impact also curbs the freedom of others who share that identity. Many state and local laws explicitly ban such expression as “discriminatory harassment.”

Regarding cancelation efforts that do not cross the legal line: Are punitive consequences for protected expressive conduct ever justified? In some instances, they are.

For example, expression that celebrates Hamas atrocities is legally protected. The Supreme Court long has held that the First Amendment shields even advocacy of violence, unless it reaches the level of intentionally inciting violence that is likely to happen imminently. Yet such antisemitic, inhumane expression reveals something about the character, judgment, and morals of those who engage in it. An unwillingness to associate with those who endorse terrorism can therefore lead to justifiable cancelations.

Accordingly, law firms are justified in declining to hire law school graduates who support terrorism. First, the firms have their own First Amendment freedom of association, which includes the freedom not to associate with individuals who do not share their values. Second, the firms could reasonably conclude that these graduates are professionally unqualified, having indicated an ignorance of or disregard for fundamental legal concepts, including the distinction between intentional and unintentional homicide.

Similarly, donors may justifiably choose to no longer fund institutions whose responses to antisemitism do not reflect donors’ values or goals. After all, as the Supreme Court has recognized, making charitable contributions constitutes an exercise of First Amendment freedoms, conveying the donor’s endorsement of the recipient’s mission.

Given that some cancelations are justified, how do we determine when they are appropriate, and how can we avoid fostering a cancel culture—which is inimical to both free speech and a pluralist, liberal democracy? These issues turn on a number of considerations that should be evaluated contextually in light of the specifics of each situation.

Considerations regarding whether to withdraw a job offer or refuse to hire someone because of expressive conduct include: Did the speech in question expose perspectives that could appropriately be considered disqualifying? Does the expressive conduct bring to light a candidate’s incomplete grasp of something relevant to the position? Does it indicate a failure to communicate professionally and persuasively, or to exercise sound judgment? Was the expression significant in the context of the applicant’s overall record? At a more basic level, employers should verify whether a particular individual is the victim of a false accusation, and if the accusation is true, whether the proposed punishment fits the crime.   

The second issue recognizes that even when specific cancelations are justified, they might nonetheless be unwise because of their contribution to cancel culture. For example, is the proposed consequence independently initiated, or is it solely the result of a pressure campaign? Is the punitive consequence likely to harden or soften the applicant’s attitude? And is it more likely to persuade others of the error of their views or result in backlash?

Especially when fueled by social media mobs, cancelation efforts can result in two types of unintended but foreseeable negative consequences: First, they can chill speech and suppress speakers beyond those directly targeted, silencing countless others who are intimidated into self-censorship, thereby contributing to cancel culture. Second, rather than muting targeted speech or speakers, cancelation campaigns can sometimes amplify the disfavored message or elevate the disfavored speaker—something known as “the Streisand effect.”

A recent example is supplied by the mobile billboards displaying the names and faces (but no other identifying information) of members of the 34 Harvard student groups that signed a statement holding Israel “entirely responsible” for the atrocities perpetrated by Hamas terrorists. This expression is constitutionally protected because it conveys information already in the public domain, but we nonetheless believe that this cancelation effort is strategically unwise.

As contemptible as the Harvard statement was, such public naming and shaming campaigns are more likely to foster feelings of victimization than a sense of accountability in both those targeted and their ideological supporters. Such campaigns are less likely to change someone’s mind than are more constructive, educational approaches, such as providing relevant information, differing perspectives, and opportunities for discussion. And they are more likely to foster a cancel culture than a culture of free speech.

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In contrast, however, we would support a decision by Wellesley College to fire the upper-class college students it employs as Resident Assistants (RAs) in Munger Hall. On October 18, these RAs sent a community-wide message that included: “We firmly believe that there should be no space, no consideration and no support for Zionism within the Wellesley College community.” The RAs suggested that students who support Israel thereby support “colonization,” and the RAs further indicated that they could not “support and make space for” such students. (NB: There was no mention of the Hamas terrorist attacks or the Israeli victims.)

To be sure, no matter how reprehensible one might consider these views, they would constitute protected speech if they had been voiced by students who were simply debating the issues—for example, in a class. But this missive was issued by students specifically in their capacity as Wellesley College employees. Resident Assistants are not permitted to discriminate, and their job responsibilities include fostering a welcoming community environment for all students. These RAs intentionally created a selectively unwelcoming environment and admitted they would discriminate against most Jews. Therefore, Wellesley would be fully justified in firing them—and might even be required to do so under anti-discrimination laws.

But regarding those who say they won’t hire any Harvard student who belonged to a group that signed the controversial statement, we would discourage relying on “guilt by association”—a hallmark of cancel culture. As antisemitic as the statement was, it isn’t possible to assess the appropriateness of refusing to hire a particular student without more information about that student’s individual connection to the statement.

To be sure, if a student belongs to an organization whose general mission is misaligned with the employer’s own ethical principles or core values, membership alone could justifiably constitute a disqualifying factor. Beyond that, though, if the employer’s concern focuses specifically on the statement, it should ascertain how and when individual applicants learned of the statement’s content, what they thought of it at the time, what they did as a result, and what they think of it now.

We also urge taking age into account. How many past college students who wore Che Guevara t-shirts were unaware of or insensitive to the reality of his crimes and cruelty, and look back now with regret? And who among Gen X and Baby Boomers are not grateful that all of our “youthful indiscretions” have not been on permanent public display?

The Supreme Court has expressly recognized that youth is “a time of immaturity, irresponsibility, impetuousness, and recklessness,” when “a person may be most susceptible to influence and to psychological damage. And its signature qualities are all transient.” For these reasons, the Court has held that minors who commit homicide are both less culpable and more likely to be constructively reintegrated into society than older adults, making the juvenile death penalty and mandatory life without parole unjustifiably harsh punishments.

While college students aren’t minors, research by the psychologist Jean Twenge indicates that in our era of  intense parental supervision and surveillance, children’s developmental path to adulthood has slowed. As far as their level of competent independence is concerned, today’s college freshman is similar in many ways to a 15-year-old of the 1980s.

Our respective fields of expertise—law and psychology—lead us to the same conclusion: Based on the historical record of speech suppression, as well as research in human development, we believe Justice Brandeis was right when he said, “repression breeds hate.” And we are convinced that the most promising path for reducing hatred and violence lies in supplanting cancel culture with a free speech culture.

To foster a free speech culture, we support what Justice Oliver Wendell Holmes hailed as the most important constitutional principle: “freedom even for the thought that we hate.” Not because we believe speech can never be dangerous. But because we believe suppressing speech, whether by the government or powerful private actors, is far more dangerous. 

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