***Please note: In the recording of the podcast I mention the website Oyez. In the podcast I say it is Oyez.com. It is actually Oyez.org. I have noted that in the transcript and linked it correctly.
People have been talking a lot about “cancel culture” in the last few weeks. A listener, Ashley Edwards, who is an amazing pedagogue and has a lot of really valuable things to say – you can find her on Twitter at DrAshleyEdwards, requested we address this issue, so we are going to talk about free speech today and to what extent you have it and how and why.
The biggest inspiration for this was the notorious Harper’s letter from a week or two ago in which the writers claimed that illiberal forces are at work to shutter debate and open dialogue. The authors wrote in support of movements that championed justice, inclusion, and equality, but that
“The democratic inclusion we want can be achieved only if we speak out against the intolerant climate that has set in on all sides. The free exchange of information and ideas, the lifeblood of a liberal society, is daily becoming more constricted. While we have come to expect this on the radical right, censoriousness is also spreading more widely in our culture: an intolerance of opposing views, a vogue for public shaming and ostracism, and the tendency to dissolve complex policy issues in a blinding moral certainty. We uphold the value of robust and even caustic counter-speech from all quarters. But it is now all too common to hear calls for swift and severe retribution in response to perceived transgressions of speech and thought. More troubling still, institutional leaders, in a spirit of panicked damage control, are delivering hasty and disproportionate punishments instead of considered reforms. Editors are fired for running controversial pieces; books are withdrawn for alleged inauthenticity; journalists are barred from writing on certain topics; professors are investigated for quoting works of literature in class; a researcher is fired for circulating a peer-reviewed academic study; and the heads of organizations are ousted for what are sometimes just clumsy mistakes. Whatever the arguments around each particular incident, the result has been to steadily narrow the boundaries of what can be said without the threat of reprisal. We are already paying the price in greater risk aversion among writers, artists, and journalists who fear for their livelihoods if they depart from the consensus, or even lack sufficient zeal in agreement. This stifling atmosphere will ultimately harm the most vital causes of our time. The restriction of debate, whether by a repressive government or an intolerant society, invariably hurts those who lack power and makes everyone less capable of democratic participation. The way to defeat bad ideas is by exposure, argument, and persuasion, not by trying to silence or wish them away. We refuse any false choice between justice and freedom, which cannot exist without each other. As writers we need a culture that leaves us room for experimentation, risk taking, and even mistakes. We need to preserve the possibility of good-faith disagreement without dire professional consequences. If we won’t defend the very thing on which our work depends, we shouldn’t expect the public or the state to defend it for us.”
This letter was signed by such luminaries as Noam Chomsky, Salman Rushdie, Gloria Steinem, and Margaret Atwood. But perhaps the most famous name on the letter was author J.K. Rowling, who has recently come under fire for her comments, or likes on Twitter, about trans people and trans rights.
As a free speech scholar I find a lot of this compelling. And as a professor who teaches controversial material, I understand the concern. For example, when I teach things that are potentially quite offensive, am I taking a risk? And I think of my friends who teach literature. Some of the classics have questionable material in them. Should professors be held accountable for that? This hits me personally. So it gives me a lot to think about.
This prompted many responses but some of the best and most pithy came in the form of tweets.
@ThugCrowd said “Isn’t cancel culture just the free market?”
Alexandrea Ocasio-Cortez (@AOC) said, “People who are actually “cancelled” don’t get their thoughts published and amplified in major outlets.” And “The term “cancel culture” comes from entitlement – as though the person complaining has the right to a large, captive audience, & one is a victim if people choose to tune them out. Odds are you’re not actually cancelled, you’re just being challenged, held accountable, or unliked.”
Okay – there’s a lot to unpack here. So, first, let’s go back to the very beginning – the free and unfettered exchange of information. Open debate. In other words – free speech. What is free speech? How free is speech? How much free speech do you have? To what extent do your rights go? Well, it turns out you can say quite a bit according to the government. Let’s talk about some legal decisions, shall we? If you want a good overview of these cases, you can go to Oyez.org (spell it) and if you want the full opinions you can go to Justia.com (spell it).
One of the most infamous hate speech cases of the 20th century was National Socialist Party of America v. Skokie. The town of Skokie, Illinois had about 700,000 people, and a community of over 40,000 Jewish people. Thousands of that community had survived Nazi concentration camps. On March 20, 1977, the Nazi Party of America informed the police they intended to march on the street sidewalks on May 1st. Because of a combination of media attention and a hate campaign by the Nazis, this march became common knowledge. The Nazis claimed the purpose of the march was to demonstrate against the Skokie Park District’s ordinance requiring a bond of $350,000 to be posted prior to the issuance of a park permit. Jewish organizations planned counter demonstrations for that day, and they expected thousands of people, as opposed to the Nazis who expected 30-50. The mayor feared this could all lead to uncontrollable violence. The Nazis were given legal orders not to march because of all of this. But here’s the thing – in a complicated decision which involved what court must hear what and when, the Supreme Court sided with the Nazis. The Courts decided a party’s assertion that their speech is being restrained it must be reviewed immediately by the judiciary. By requiring the state court to consider the neo-Nazis’ appeal without delay, the U.S. Supreme Court decision opened the door to allowing the Nazis to march. Ultimately, the Nazis didn’t even do it. But the decision remains kind of an authoritative one and what is considered a landmark or a classic free speech case – you can express fascist, racist, or Nazi ideas in America. We fought a war to defeat the Nazis, but the state will not tell you to not be a Nazi. Fascists and Nazis will not be restricted by the government in the United States of America.
Brandenburg v. Ohio is a landmark case dealing with racist speech that is often equally as shocking. Clarence Brandenburg was a KKK leader in Ohio in 1969 who made a speech at a Klan rally. He was convicted under an Ohio criminal syndicalism law. The law made it illegal to advocate “crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform,” as well as assembling “with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.” But the Court ruled in favor of Brandenburg, deciding that Ohio’s law was unconstitutional. The Court used a two-pronged test to evaluate speech acts: (1) speech can be prohibited if it is “directed at inciting or producing imminent lawless action” and (2) it is “likely to incite or produce such action.” The criminal syndicalism act made illegal the advocacy and teaching of doctrines while ignoring whether or not that advocacy and teaching would actually incite imminent lawless action. Basically, the Court said you can’t have a law that prohibits the mere advocacy of violence. The Brandenburg test has stood the test, of time, too. Inflammatory speech of many varieties is legal unless you can show it will ACTUALLY cause violence. You can advocate for all manner of revolution or violent uprising but unless somebody can show that you are actually going to cause one, it is protected speech. So you would basically have to say, “hey, at this time in this place get together to do this violent thing against this group” to not be protected speech. Just saying “burn it all down!” won’t get you in trouble.
RAV v. St. Paul is a similar case that has an equally surprising outcome. In the early 1990s several teens in St. Paul, Minnesota burned a cross in a black family’s yard. The teens were charged with a local bias-motivated criminal ordinance which prohibits the display of a symbol which “arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.” The Court held that the ordinance was invalid on its face because “it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses.” The First Amendment prevents government from punishing speech and expressive conduct because it disapproves of the ideas expressed. In other words, the government is not in the business of punishing ideas or perspectives, regardless of what they are. This is really important – the government does not regulate any kind of idea. Keep this in mind when it comes to the Abrams dissent (which I will talk about, but it pre-dates this decision) and when we talk about the ramifications for free speech and what has been deemed “cancel culture.” So these kids were not punished for burning a cross on a black family’s lawn. In many ways that is infuriating. What is especially galling is if they had been charged with something like trespassing or destruction of private property this would never have been an issue. They would have been punished accordingly and that would have been it. But because St. Paul decided this should be a speech issue the charges were invalidated.
Snyder v. Phelps was one of the most controversial cases of the early 2000s. It split free speech scholars down the middle and left many a person who once considered themselves squarely on the side of “free speech for all!” feeling that maybe a few restrictions here and there wouldn’t be such a bad thing. This case centered on the antics of Westboro Baptist Church, which was (and is) notorious for showing up to protest things like soldiers’ funerals, memorials for public tragedies, and minor things like church services for churches they feel have lost their way. They trade in being as offensive as possible and are universally disliked. Westboro picketed at Corporal Matthew Snyder’s funeral with signs like (and I want to emphasize these are quotes and not my words) “Thank God for dead soldiers” and “Fag troops.” The family accused the church and its founders of defamation, invasion of privacy and the intentional infliction of emotional distress. The Court, in an opinion that shocked and enraged many people, decided in favor of Westboro (which was Fred Phelps and his family). In a decision that united liberals and conservatives alike (it was an 8-1 decision), the Court ruled that the shocking and offensive nature of Westboro’s speech did not make them liable in Snyder’s suit. Their speech was a public matter dealing with public issues in a public place, and therefore protected by the First Amendment. In short, your feelings are not really protected by the First Amendment. The response to this decision was swift, and in many ways, it restored a little bit of faith in some people’s humanity. Wherever Westboro went, people began to gather. If Westboro was going to be at a funeral, an anti-protest group would show up and place themselves as a physical wall between the so-called church and the mourners so those who were grieving wouldn’t have to deal with Phelps’s displays. What the government would not do, the public began to do. Westboro was met with condemnation and public displays of opposition everywhere. The public was speaking.
I put Miller v. California on this list, even though it is a very different kind of case because I think it tells us a few important things about how the law thinks about speech in the public forum. In 1971 Marvin Miller conducted a mailing campaign to advertise the sale of “adult” material. Some unwilling recipients of Miller’s brochures complained to the police. So Miller was charged with and convicted of violating a California statute prohibiting the distribution of obscene material. The question was whether distribution of obscene material through the mail was protected, but the result was a clarification of what was considered obscene. In a 5-4 decision the Court decided that obscene material is NOT protected by the First Amendment. We could do a whole podcast about this – racist speech is protected, violent speech is protected, but we get antsy about sex. But wait – let’s look at this. The Miller case provided a new test for obscenity that became known as the Miller test: it held that [t]he basic guidelines for the trier of fact must be: (a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest. . . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” It rejected the previous “”utterly without redeeming social value” Memoirs v. Massachusetts. There’s a lot to dissect here
First, obscenity is judged by the average person applying contemporary community standards. So this is kind of hard – who is this average person? That’s difficult, but the Court assumes that a regular person, not somebody who is immersed in fringe communities or an academic or somebody who studies this stuff – just an average person, judging by contemporary community standards. That’s important – speech is judged by norms and values of the community of the speaker. The community gets to have a say in what is and is not appropriate speech. That’s important to understanding how the government understands speech. Community standards apply.
Secondly, when it comes to obscenity, the whole thing must be dirty, not just a part of it. The whole thing must appeal to “prurient interests” – you can’t just say “here’s a dirty part” you must be able to show that the whole thing is lascivious. You must show that the work depicts or describes in an offensive way sexually conduce that is defined by the specific state law.
And this is the other important part – you have to show that the work, on the whole, lacks “serious, literary, artistic, political, or scientific value.” This is known as the SLAPS test. And honestly, this is why you can get away with almost anything. Because, really, what is art? Does your porn have a plot? Then you can argue it has literary or artistic value. Did your nudie magazine use special lighting or particular outfits to enhance the visuals? Then it has artistic value. Did you impersonate a political figure? Then it has political value. So this is why porn of all varieties remains legal. The SLAPS test didn’t close the door – it opened the door for all manner of sexual materials.
So the Miller test establishes a few important things – speech is to be judged by contemporary community standards, and it’s not obscene if it passes the SLAPS test.
Abrams v. United States is the earliest case of all of these, but I am mentioning it last because its significance is probably the most general and applicable. In 1918, the United States participated in a military operation in Russia against Germany after the Russian Revolution to overthrow the tsarist regime. Russian immigrants in the US circulated literature calling for a general strike in ammunition plants to undermine the US war effort. The defendants were convicted for two leaflets thrown from a New York City window. They were sentenced to 20 years in prison. The question was do the amendments to the Espionage Act or the application of those amendments violate the free speech clause of the First Amendment? The Court held that in calling for a general strike and the curtailment of munitions production, the leaflets violated the Espionage Act.
But what we’re most interested in is the dissenting opinion, which came to be a standard by which many free speech cases were judged – that’s why Justices write dissenting opinions. Every now and then, a dissenting opinion turns out to rule the day by history’s standards. Justice Oliver Wendell Holmes argued that the First Amendment protects the right to dissent from the government’s viewpoints and objectives. Protections on speech, he continued, should not be curtailed unless there is a present danger of immediate evil, or the defendant intends to create such a danger. Justice Holmes said,
“Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition…But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas… . The best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out,”
In other words, Justice Holmes advanced the idea of the marketplace of ideas for speech. Now, I have a lot of problems with this metaphor. I think it is really problematic. But one thing it DOES do to remind us that the whole point of free speech is to empower the people and not the government. So the government seems to come down pretty clearly on the side of free and unfettered exchange of ideas. And there is good reason for that.
If the government gets involved in idea or viewpoint discrimination there is a serious imbalance of power. What is acceptable one day may not be acceptable another – protected speech could change with the make-up of the court or even with administrations.
The other side of that is that the history of free speech in America is that it is actually speech from the minority and marginalized groups that is policed more frequently and strictly. Restrictions on speech hurts those that are already disempowered the most. If you want to protect those that need the most protection, it may require free and unrestricted speech. It may allow for the bad speech as well, but it guarantees that the speech of those who are disenfranchised will not be policed because they are challenging hegemonic powers. In other words, some people believe you must allow the bad speech in so all other speech can come in, too. (For an excellent counter to that point you can see the works of Dr. Billie Murray of Villanova University.)
A lot of people are often shocked by these decisions – there are very few restrictions on what you can say in America – according to the government.
Here is what people who scream about censorship get wrong most of the time: your free speech is guaranteed by the First Amendment which says that the government will not abridge your speech. That’s important and specific. The GOVERNMENT will not abridge your speech. It says nothing about a corporation or a club or social group – in no way are you protected from the policies, mandates, or even the whims of other organizations you are a part of because you agree to be a part of those organizations and therefor you have to adhere to those rules and norms.
So for example, you can buy a shirt with terrible racial slurs on it if you can find it. You can wear it in public. But a store or a restaurant can absolutely tell you that you are not welcome on their premises while you are wearing it because they are a private enterprise and they can enforce their own rules and norms there. The First Amendment does not guarantee that you always have free speech in all places. The First Amendment guarantees that the GOVERNMENT will not tell you what you can or cannot say. This actually gives a lot of power to society and to private enterprises. Because the government does not participate in viewpoint discrimination it is up to us to decide what is and is not appropriate. The government isn’t giving us any guidance in terms of what we should or shouldn’t do – so we get to make the rules. And that’s pretty powerful.
And this leads us to the notion of “cancel culture.”
We, as a group, are deciding what is an is not appropriate in the absence of government viewpoint discrimination.
And nobody is saying “you can’t say that.” People are saying “We’re not going to listen when you say that.” It is the essence of what free speech and the protection of free speech is. The government allows US to fashion our own rules and contracts in terms of appropriate norms – just like the Miller case said: what is appropriate to our particular community. People get upset because they claim that there is a lack of open debate on ideas, but that displays a misunderstanding of debate. In debate an idea or policy is proposed in which the two sides accept the premises of the debate so they can argue the merits of the proposed solutions or concepts in order to come to a solution. But in these situations, it’s not a debate because both sides do not accept the premises. When somebody says something racist, sexist, or homophobic it’s not a debate because both sides do not agree on premises on which you can build an argument. There is no agreed upon starting point. That’s why the public says, “we’re not going to listen when you say that.” They’re saying, “we’ll wait for you to come back with something worth debating.”
So should people who say something inflammatory be immediately fired or lose their standing? That’s a difficult question. I’m certainly not averse to redemption. But it is disingenuous to say there should be no consequences. The government clearly stays out of the business of regulating speech so we can do it ourselves. The WHOLE POINT of government not regulating speech is to give us the opportunity to decide for ourselves what is and is not acceptable.
The marketplace metaphor is problematic for a few reasons, but it DOES remind us that the whole purpose of the free speech part of the First Amendment isn’t speech anarchy – it’s to empower the people in terms of speech.
We can hold our government accountable. We can hold EACH OTHER accountable. We can speak our minds about important issues without fear of government censorship. We can build discourses and rhetorical frameworks that empower us and embolden justice. We can challenge hegemony and existing frameworks that we find antiquated. Because the government does not manage our speech, we have the enormous responsibility and privilege of managing it ourselves. And that means accountability to the community. That means community standards. That means you are beholden to your audience in ways that you are not beholden to the government because THEY, the community, decide what is and is not appropriate. The government has given them that power.
Should we practice tolerance? Yes. But tolerance is a loaded word. Philosopher Karl Popper described the “tolerance paradox” in 1945. He said a society that is tolerant without limit is inevitably seized and destroyed by the intolerant. Basically, to maintain a tolerant society, a society must be intolerant of intolerance. He said, ““I do not imply for instance, that we should always suppress the utterance of intolerant philosophies; as long as we can counter them by rational argument and keep them in check by public opinion, suppression would be most unwise. But we should claim the right to suppress them if necessary, even by force…” Popper was pretty vehement. But note that he claimed one of the best ways to keep bad ideas in check was by public opinion. The public should hold people accountable for their unacceptable ideas. That’s the only way to maintain a tolerant society.
So, has “cancel culture” gone too far? Well, most of the people who complain about being “canceled” are still successful and famous so that seems unlikely. They still have a platform, or we wouldn’t be hearing about it.
But the real question is what is the apparatus, here? Is this a function of free speech? Is this the INTENDED nature of speech in a liberal society?
That’s a more complicated and nuanced question.
Those who bemoan “cancel culture” claim this is illiberalism run amok. And maybe they have a point – is simply stifling ideas really the way to protect people FROM those ideas? And is it really our job to protect people from ideas in the first place? Shouldn’t people have the right, and maybe the responsibility, to assess ideas for themselves and make decisions?
But on the other hand the whole purpose of keeping government out of speech is so a society can regulate its own speech – so how illiberal is it?
I’ll leave you with these thoughts and questions and invite you to give me your thoughts by shooting me a message. I’m on twitter, Instagram, fb, or you can email me. Solve this problem for us!
Music in this episode is “Fearless First” by Kevin MacLeod at https://incompetech.filmmusic.io/song/3742-fearless-first licensed under CC-BY. Music modified by cutting and fading where appropriate.