Cancel Only the Cancelers

By Dan McLaughlin

Monday, March 28, 2022

 

Freedom of speech is a natural human right and an important social value. It is not the only social value; like any other right or value, it must sometimes be balanced against others, such as democracy, equality, public safety, and the freedoms of conscience and association. But it is a bedrock value of tremendous importance. Whether or how it is protected in law varies by who is threatening it: the federal or state government, schools, businesses, etc. Even where speech is threatened only by private actors and is not protected by law, however, the culture of free speech is worth defending. If free speech dies as a cultural value, it will not long be respected in law.

 

And if the culture of free speech dies within the legal profession, the laws on the books will become unenforceable. A nation of laws is only as strong as its nation of lawyers. That is why we should be particularly alarmed when young lawyers seek to stifle free expression.

 

Free Speakers and Free Listeners

 

The core of freedom of speech is allowing encounters between willing speakers and willing listeners, with the goal of advancing the truth through an adversarial process of dispute and reflection rather than by restricting ideas deemed too dangerous to discuss. Whether we are discussing the legal right to speech or the broader cultural value, much of the confusion (often deliberate) over free speech revolves around the failure to acknowledge the dual roles of the willing speaker and the willing listener. Your right to speak does not include a right to compel others to listen to you, a right to compel others to affirm or repeat your message, or a right to prevent other people from listening to speakers you reject.

 

As a private citizen or a private organization, you have a right not to be forced to offer a private platform to speech you would not endorse. We all benefit from liberal norms of free speech that promote a large, public marketplace of ideas. A liberal society, however, must make space for individuals and organizations to act illiberally in order to control their own message. A church can expel unbelievers; a political party or an ideological publication or group can demand adherence to its principles. Those organizations acting in an illiberal manner internally can help them promote an external message that competes in the marketplace of ideas. It helps them become willing speakers available to willing listeners.

 

In judging a private organization’s interactions with individuals, we should ask whether its protection of its own rights of speech and association are proportionate rather than aimed at suppressing external speech. For example, as I argued in the case of NFL players protesting the National Anthem, the league has every right to tell the players that they cannot use the league’s time and property as a platform by staging political protests on the field during a league-sponsored, televised event. On the other hand, the league should also recognize the players’ right to opt out of that event as well as their right to engage in political protests off the field on their own time and their own dime without punishment.

 

A private organization’s entirely legal behavior can, however, be harmful to the culture of free speech if it lessens the space that exists for exchanges of ideas to take place. Some private actors play a particularly large and powerful mediating role in the marketplace of ideas: A major university, a book publisher, or a social-media platform plays a role in the culture that is supposed to promote encounters between willing speakers and willing listeners.

 

There has been a vigorous debate around whether Section 230 of the Communications Decency Act of 1996 should be read, or changed, to recognize a distinction between “platforms” and “publishers” so that the government can punish social-media platforms and search engines for restricting access in a way that constricts the willing exchange of ideas. The platform–publisher distinction is not, in fact, incorporated in the current text of the law, and there are serious questions about whether the law could effectively draw such a distinction without causing more trouble than it cures. But the law aside, the platform–publisher distinction is one grounded in common sense. People instinctively understand that Google, Twitter, Facebook, or Spotify are predominantly technological platforms in the liberal business of providing a marketplace of ideas for willing speakers to meet willing listeners, while National Review or The Nation or the Washington Post are in the business of creating speech for consumption by willing listeners. Even if the platforms and the publishers are not treated differently in law, their role in the marketplace of ideas is different, and the cultural judgment of their behavior should be different as well.

 

Censors and Censoriousness

 

Fundamentally, there are three types of threats to speech. One is the sort of government censorship or government interference that is against the law. But what constitutes government censorship is sometimes misunderstood. Much of the recent conservative pushback against, say, critical race theory in classrooms and workplaces or the instruction of young children in sexual ideology is not about obstructing messages to willing listeners, but about resisting the indoctrination of compelled listeners. There are fair debates around how you draw those lines, because it is impossible to educate children without conveying values, but when government employees such as public-school teachers speak in their official capacity to a captive audience, they are engaging in the use of government power, not their own, private speech. That exercise of government power should, like any such exercise, be subject to the ultimate control and supervision of the voters, and it should reflect their values.

 

Do you like critical race theory? Take a college elective. Buy a book. Attend a lecture on your own time. Those are all exercises of willing listening. Don’t mandate it for schoolkids or employees. Do you want to promote your sexual ideology? It’s a free country — but not in a public kindergarten.

 

The second type of threat is private censorship: behavior by private actors that obstructs encounters between willing speakers and willing listeners. Private censorship is mostly legal, although at times it can run afoul of various specific rules such as contracts or antitrust laws. But the more pervasive it becomes, the more it can crowd out the access of willing listeners to willing speakers.

 

That is the case with secondary boycotts. If you hate Joe Rogan, don’t listen to his show. That is the free market for speech at work. But attempting to use commercial pressure on Spotify in order to prevent Rogan’s willing listeners from finding him? That is anti-speech. It is the prevention of willing exchanges of ideas on the theory that your rights to impose economic consequences on Rogan’s message are greater than the rights of Rogan’s listeners to hear that message. “This person says wrong things believed by a large audience” is never a valid basis for seeking the suppression of speech.

 

Private censorship is also at work when mobs try to use noise and the force of their collective presence to prevent speakers from being heard. Want to protest a speaker? Grab a sign and stand peaceably outside. Ask pointed questions. Don’t shout the speaker down to prevent willing listeners from hearing them.

 

The third and least dangerous threat, but a threat nonetheless, is censoriousness. Free speech does not mean freedom from any and all consequences for speech. Saying some things should get you fired from your job or ostracized by your friends. But to establish the practice of shaming the worst kinds of speech does not mean that every disagreement should be met that way. A culture of censoriousness means one that respects the forms of free speech but strangles it in practice by a continuous posture of outrage and overreaction. A culture that values speech, civility, a diversity of viewpoints, and a spirit of tolerance and humanity will not overdose itself on censoriousness.

 

Lawyers and Mobs

 

The culture of free speech has been under siege in America in recent years, and one of the most alarming battlegrounds has been our law schools. Some of that intolerant mood comes from left-wing faculty, but much of it bubbles up from progressive law students. Ilya Shapiro, for example, was met with performatively “traumatized” protesters demanding his firing at Georgetown Law School, and by an angry mob that shouted him down at UC Hastings College of the Law. Another common target for the intolerant Left has been the Alliance Defending Freedom and its general counsel, Kristen Waggoner. Waggoner’s appearance at Yale Law School — to speak, ironically, on a cross-ideological panel on free speech — triggered another effort to shout her down. You can read Waggoner’s account here.

 

Defenders of bullying mobs, such as Mark Joseph Stern of Slate, have tried their best to whitewash and downplay the events at Yale Law because the protest was eventually defused to allow the event to go on (unlike at Hastings Law), but Stern has been rebutted at length with video and reportage by David Lat (here, here, and in this Twitter thread), Aaron Sibarium (here, here, and in this Twitter thread), John Sexton, and Dave Urbanksi. To her credit, Yale professor Kate Stith, who was moderating the event, warned the mob, told them to “grow up,” and eventually got them to leave the room. But the noise and disruption prevented many attendees from hearing the panel, and disrupted nearby classes, forcing some of them to move to Zoom.

 

Yale has — on paper — a strong policy protecting campus speakers from this sort of thing. The policy declares that “access to a university event or facility may not be blocked” and “a university event, activity, or its regular or essential operations may not be disrupted. . . . Dissenting members of the community may protest and express disagreement, but they may not interfere with a speaker’s ability to speak or attendees’ ability to attend, listen and hear.” The policy makes this specific, including among the banned activities “holding up signs in a manner that obstructs the view of those attempting to watch an event or speaker, regardless of the message expressed,” “speaking from a bullhorn, shouting, or playing amplified music or noise from audio sources in a manner that interferes with speakers’ ability to be heard and of community members to listen, or disrupts or interferes with classes or other university activities,” and “standing up in an assembly in a way that obstructs the view of those attempting to watch an event or speaker and/or blocking the aisles or routes of egress.”

 

Further, the policy has some teeth: A Riot Act–style “three strikes” rule requires disruptive students to stop after two warnings or be subject to punishment. The protesters left the room after Stith’s first warning but continued their activities outside.

 

Rules, however, have meaning only if they are enforced. At Hastings, the administration more or less sided with the mob. At Yale, the response has not been much stronger. What should follow to deter this sort of thing in the future?

 

Two proposals are on the table. Stanley Kurtz argues that the university can still discipline anyone involved, and he points to a policy that (like NLRB rules, the Texas abortion law, the Alaska ethics rules that were weaponized against Sarah Palin, or other “private attorney general” statutes) allows anyone to file a complaint:

 

Yale has perhaps the clearest, firmest, and most venerable requirements in the nation for sanctioning those who shout down speakers. . . . Yale Law School’s “Rules of Discipline” allow any “member of the Law School” (which includes all Yale Law School faculty members and all Yale Law School students) to trigger an investigation and hearing regarding any alleged violation of Yale’s Law School Code. . . .There is substantial evidence that all of these rules of discipline were violated at the March 10 Federalist Society event. . . .

 

In this case we needn’t depend on sniveling administrators to act. Any Yale Law School student or faculty member has the power to file a complaint, or rather a series of complaints, against those who participated in the shout-down. And according to Yale Law School’s Rules of Discipline, those complaints must be investigated and acted upon. So, for example, the members of Yale Law School’s Federalist Society who were present at the event, and whose freedom to learn was interfered with, can file complaints and initiate hearings.

 

As in other contexts, I’m wary of designing a grievance procedure this way. Similar grievance processes that trigger an automatic initiation of the disciplinary machinery can, as we have seen in an example from Stanford Law School, be abused as a weapon against speech even by people on the right. But the friends of free expression have few enough weapons with which to defend speech; one may as well use the tools that are given, so long as they remain on the books.

 

The other proposal, from Judge Laurence Silberman of the D.C. Circuit Court of Appeals: Blacklist the law students from clerkships. “Students who are identified as those willing to disrupt any such panel discussion should be noted,” Silberman wrote in an email to other Article III judges. “All federal judges — and all federal judges are presumably committed to free speech — should carefully consider whether any student so identified should be disqualified from potential clerkships.”

 

Mark Joseph Stern, who is plainly still seething over being called out for his dishonest effort to get Shapiro fired by Georgetown Law, argued on Twitter that Silberman was doing the same thing: “I know we had a big conversation on here about the propriety of complaining to someone’s prospective employer about their free expression of unpopular views, so I’m sure Silberman’s email will be condemned across the aisle.”

 

Stern is missing the point. Nobody is trying to get the Yale protesters (or those at Hastings or Georgetown) punished or blacklisted for having bad opinions. The point of what Silberman is proposing is to cancel only the cancelers — to impose consequences for the abuse of the power to suppress speech. These people want the privilege of a law license, which allows private professionals to wield governmental power. They intend to do so as antagonists of the right of willing listeners to find willing speakers. That is dangerous to the culture and to the law of one of our most cherished freedoms.

 

Very few values are more essential to the law than both sides getting heard in order that disputes be adjudicated by a reasoned decision-maker. Systems of law are designed to resolve disputes by speech and evidence precisely so that disputes will not instead be resolved by resort to violence. Mobs are the antithesis of that: They bring the force of the crowd to bear to drown out reason. Left to run wild, they will destroy not just speech but law itself.

 

The question Silberman raises is what to do with people who graduate from law school having been taught that there is only upside to illiberal attacks on speech. That is, in fact, a question that should worry potential employers, not only because it is a sign of a temperament unsuited to the practice of law but also because it is a pattern of behavior likely to be repeated in the workplace, with ruinous effects on any organization. The sorts of people who think that speakers ought to be shouted down on campus are unlikely to be tolerant of co-workers or subordinates. It is a symptom of an abusive personality unfit by character to a collegial workplace or a powerful profession.

 

Mobs will continue to suppress speech unless and until they face consequences. The cancelers and the mobs should be the ones on the receiving end of their own medicine — they ought to be the only ones. A recent New Yorker article about the birth of Method acting tells the story of how the great director Elia Kazan made up his mind in 1952 to “name names” of fellow members of his onetime theater company Communist cell to the House Un-American Activities Committee. Kazan knew that the people he was naming would be canceled in the McCarthy-era sense, blacklisted from working in Hollywood or many other corners of show business. But then, Kazan recalled, these same people had been all too eager cancelers themselves, to the point of firing Kazan himself for departing from the Party line. “In 1936, the Party had ordered the Group’s cell to seize control of the company. When Kazan refused, he was publicly shamed and kicked out”:

 

I couldn’t clean out of my mind the voice of V. J. Jerome and its tone of absolute authority as he passed on the Party’s instructions for our Group Theatre cell and his expectation of unquestioning docility from me and the others. I heard again in my memory the voice, arrogant and absolute, of the Man from Detroit as he humiliated me before my “comrades” in Lee Strasberg’s apartment over Sutter’s Bakery. I recalled the smell of the sweet chocolate topping and the cinnamon from below and how silent my fellow members had been, unresponsive until they’d voted against me.

 

Ideally, open enemies of speech should face proportionate consequences. That is why the longer-term answer is something more like what Kurtz proposes: Universities should reclaim the power to discipline students until they learn that this is America and act like it. To that end, the disciplinary tools available should be put to use. But if students manage to graduate high school and college and law school without developing the capacity to tolerate disagreeable speech, the legal system itself will have no choice but to take a stand to prevent them from using the tools of the law to close down the marketplace of ideas.