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Thursday, August 06, 2020

More cancel culture and counter-speech

Efforts continue to define and defend criticisms of cancel culture, beyond "I know it when I see it" or "Canceling for me but not for thee." Jonathan Rauch takes a crack in Persuasion (free registration required), identifying six warning signs, the presence of some or all suggest canceling:

• Punitiveness, in that the goal or effect is to cost a job or other opportunities.

• Deplatforming, which includes disinvitations, demands for retractions, and shout-downs.

• Organization

• Secondary Boycotts

• Moral grandstanding, through "ad hominem, repetitive, ritualistic, posturing, accusatory, outraged" rhetoric.

• Truthiness

Punititiveness perhaps helps. But there must be circumstances in which someone's deeds or expression are so egregious that calling for his removal from a job or position or platform should be fair game, such that non-governmental actors can decide to remove him from their circle of discourse and engagement. The person remains free to speak, but private persons need not listen, nor provide him with a platform. And private companies can choose not to retain him as an employee, private consumers can choose not to do engage in business with him, and people and entities in general can elect not to associate with him. If that is permissible, then the dispute is not punitiveness or deplatforming, but where to draw the line. We can identify ridiculous overreactions. But some situations are not ridiculous overreactions.

Five of Rauch's categories involve forms or manners of expression and thus of counter-speech. These purportedly neutral rules perpetuate the problem of the preferred first speaker--they impose unique limits on the type of speech regarded as "legitimate" when used by those who object to a speaker. For example, Rauch does not call for an end to all "ad hominem, repetitive, ritualistic, posturing, accusatory, outraged" rhetoric, only that used in response to someone. He rejects shout-downs, thus obligating counter-speakers to engage civilly and openly through dialogue in a way that original speakers are not obligated to do. A categorical line between organizing (rallying many people to a cause, which is somehow a bad thing) and persuading imposes an obligation of reasoned discourse not placed on an original speaker.

Rauch does treat everyone the same as to truthiness--it is as problematic when President Trump lies and distorts as when left-leaning groups lie and distort. But then we are not talking about cancel culture as some unique threat to free speech. The threat is lying, whoever is lying and wherever that person stands in the exchange process.

These and other efforts bring me back to Chief Justice Rehnquist in Hustler v. Falwell: "If it were possible by laying down a principled standard to separate the one from the other, public discourse would probably suffer little or no harm. But we doubt that there is any such standard, and we are quite sure that the pejorative description [cancel culture] does not supply one."

Posted by Howard Wasserman on August 6, 2020 at 12:11 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink


Or to put the point much more briefly there will always be assholes. But nothing about criticizing a cultural trend/change in norms that celebrates being an asshole to assholes in any way implies that the people being assholes in response are engaged in any worse moral behavior than the initial asshole. It merely demonstrates that people find it concerning when a segment of society that didn't formerly think it was ok to be an asshole now does.

Posted by: Peter Gerdes | Aug 7, 2020 5:24:02 AM

I’m unclear as to what reason you have for believing that it's not supposed to be based for the first speaker to behave uncivilly etc... I presume you want to infer that from the claim that cancel culture creates some especially danger or represents a particular threat. However, when discussing the dangers of a particular cultural practice not only the badness of each individual act matters but also the extent to what it occurs.
To give a quick analogy imagine a cultural practice arose in bars whereby all patrons would hit a patron who they saw hit someone else without justification. Such a practice would obviously be a terrible threat to life and limb since a drunk who stupidly threw a punch might get beaten by dozens or hundreds of punches yet the individual actions of each responding puncher are no morally worse (indeed they are individually less morally bad) than the original unjustified punch.

Yet at the same time it would not be wrong to say that the loss of a norm demanding we respond to reprehensible behavior in ways that are themselves far less harmful than the original act would be a great cost and could be rightly warned against even while maintaining that every person who breaks the rules deserves equal individual moral condemnation.

Posted by: Peter Gerdes | Aug 7, 2020 5:12:32 AM

I feel like there's an infinite regression in arguments of this kind. Someone says something some people find offensive. This speech is met with ad hominem speech that partly seeks to discredit the original speech by recourse to emotive labels like racism and partly seeks to discourage people from engaging in this speech, give fewer employment opportunities, private speaking engagements, or attention to the speaker, etc. Then someone comes along and says that this sort of counter-speech, though confessedly quite legal, is socially coercive and bad for "First Amendment values" because it chills speech. Let's call these people anti-cancel-culturalists, just for ease of reference without implying I agree that "cancel culture" exists or is a useful name for what it's supposed to describe.

Then someone else who cares about so-called First Amendment values (this is you, or "popehat," I'm afraid) says that no, the anti-cancel-culturalists are harming these values because they are trying to create a social norm that certain kinds of permissible counterspeech are bad and chill counterspeech, force anti-racists or anti-other-cancel-worthy-things-ists to debate with one ad hominem hand tied behind their back, etc. To which the anti-cancel-culturalists might sensibly reply that the anti-anti-cancel-culturalists are trying to chill their counter-counterspeech by creating a norm against a norm against engaging in certain types of aggressive counterspeech. I see no point at which one side can logically make recourse to non-legal First Amendment values and the other can't. This might suggest that the whole business of First Amendment values is incoherent and that while as a legal matter we can't ban any of this speech, counterspeech, counter-counter-speech, or counter-counter-counterspeech, we should either all shut up about non-state actors chilling each other's speech, or just accept that it's perfectly fine to create social norms against certain speech and that the only argument worth having is whether they're good or bad norms, not whether the norms are too chilling in some abstract sense that makes no reference to the value of the chilled speech. On this score, I would say that it's a great idea to shun genuine racists from polite society, but that a lot of what's called racist today isn't and that some people's versions of the anti-racist-speech norm do harmfully impede useful discourse about race; that the anti-cancel-culturalist norm is, at least for now, weak, harmless, and if anything a useful (though not very, because it's so weak) check on some excesses of the anti-racism/other-bad-things speech norms; and that the anti-anti-cancel-culturalist speech norm, where people get made fun of on Twitter for signing open letters against cancel culture, is also harmless and a useful corrective to excesses of the anti-cancel-culturalist norm.

Posted by: Asher Steinberg | Aug 6, 2020 6:16:36 PM

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