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Friday, September 11, 2020

Cancel culture as a circle of baseline hell

Thinking out loud.

Skip Bayless' comments on Dallas Cowboys quarterback Dak Prescott ("being quarterback of the Cowboys is too important a position for someone who struggles with mental-health issues, or at least not for someone who wants to talk about those issues") are so stupid that they are unworthy of a response. They are noise--an "inarticulate grunt or roar that, it seems fair to say, is most likely to be indulged in not to express any particular idea, but to antagonize others." They certainly are too stupid to have been spoken in a media outlet that purports to be a forum for serious discussion, even of sports. And they suggest that Bayless is an unserious person.

Will Bayless be "canceled"--fired, suspended, or whatever? Fox Sports issued a statement disagreeing with Bayless' comments and saying they had "addressed" the issues with Bayless. I expect that to end it--no cancellation. And I do not expect Bayless to apologize or otherwise address it.

The separate question is whether Bayless should be cancelled, to which critics of "cancel culture" will say no. But I wonder if those who oppose cancelling someone for bad speech are trapped in a form of Rick Hills' baseline hell-the inability to establish a neutral baseline from which to analyze a problem. I presume that even the strongest critic of cancel culture would agree with the following:

    1) A private media organization could decide that it should not hire Bayless because it does not like his views on mental illness.

    2) A private media organization is not obligated to pay money and provide a platform to any person, so it can decide who it does or does not wish to give a platform based on the content of his speech and whether the organization shares, agrees with, and wishes to promote those views.

    3) The decision not to hire Bayless because of his absurd views would be a valid exercise of the organization's expressive rights--a decision about with what people and views it wishes to associate.

If the above is true, then firing Bayless should not raise different issues or problems. Either is an exercise of the media organization's judgment as to the views it wants to promote and with which it wants to associate. It would require a distinction between beginning and continuing--that ending a relationship because of disagreement with speech is different than declining to begin a relationship because of disagreement with speech. But that is a baseline problem--it rests on a belief that the starting point (on the platform or not on the platform) makes a substantive difference.

Similarly, sponsors could make the three decisions described above as to whether to sponsor Bayless' program and decline to buy time, from which it follows they could pull their money after-the-fact. To say otherwise requires the same distinction-without-a-difference between ending a relationship because of speech and declining to start that relationship because of speech.

I also wonder if we can distinguish cancelling Bayless for his speech from cancelling the Chicks or Mel Gibson or a professor for his speech. With the latter, we are cancelling from a primary role (making movies, making music, teaching classes) because of their out-of-role speech. But cancelling Bayless would reject him from his primary role because of his behavior in that primary role. Does that make a difference?

Posted by Howard Wasserman on September 11, 2020 at 10:46 AM in First Amendment, Howard Wasserman, Sports | Permalink


Howard writes:

“I wonder if those who oppose cancelling someone for bad speech are trapped in a form of Rick Hills' baseline hell-the inability to establish a neutral baseline from which to analyze a problem.“

In general (and with the caveat below), yes, these unfortunates are indeed trapped in baseline hell. Baselines for measuring the appropriateness of private responses to private speech (e.g., responses like boycotts, counter-speech, heckling, twitter mobbing, doxxing, and so forth) are hopelessly confused today, at least outside of the context of labor disputes where there are a lot of precedents under the NLRA and earlier. JS Mill in On Liberty argued that all private responses rooted in what Dworkin would have called “external preferences” were inappropriate: You could refuse to listen to or read someone else’s opinions because they were not your cup of tea, but you shouldn’t try to deter those opinions’ expression through private action like (say) picketing or a boycott. That Millian baseline strikes me as overly general — but the question of whether or not particular institutions or social contexts demand that private people be more or less tolerant of views they regard as harmful has barely been explored IMO, and the social norms governing (say) private businesses, universities, newspaper’s op-ed pages, twitter etiquette, blog comments like this one, professor’s remarks in class, etc, etc., etc., seem to me to be in an infernal turmoil.

Generally, controversies about private policing of speech take the following form: (1) Those who object to speech invoke the “state action” doctrine to defend their retaliation against the offensive speech as immune from criticism rooted in libertarian norms based on the First Amendment; (2) Those who object to the policing note that those retaliating against speech are violating libertarian norms governing state actors that ought to apply to at least *some* private actors (e.g., universities, maybe newspaper op-ed pages) in *some* fashion; (3) Those who object to private policing of private speech note that twitter mobs and the like can be as or more “coercive” as the state; (4) Those who defend such private policing note that “powerful” actors in control of “important” platforms have some unspecified duty to be selective about who gets access to the platform. The specific norms filling in the details of these glittering generalities are almost entirely contested. Everyone yells a lot. Baseline hell is a loud place.

Maybe there are some Erving Goffman-style sociologists out there who have detected more nuanced patterns in how we Americans understand appropriate speech behavior in various different settings (e.g., thanksgiving dinner tables, twitter TLs, a seminar, a faculty meeting, a crowded restaurant, etc). If so, I’d be grateful for any citations: I haven’t come across that sort of in-depth anthropology of speech norms.

Until we develop consensus on these sorts of granular questions, all debates about whether it is okay to retaliate in various ways against So and So who said or wrote something regarded by Some Others as mistaken, harmful, bigoted, or worse, will just be screaming matches in baseline hell.

Caveat: I don’t know who Dak Prescott or Skip Bayless are. (I barely know who the “Dallas Cowboys” are: A football team, right?) I also haven’t followed the comments of the latter about the former nor do I know how some segment of the public reacted to those comments. So please don’t take anything I wrote above to be any expression of any views about Bayless/Prescott/Cowboys/football/football fans, about all of which I am a “low-information commentator.”

Posted by: Rick Hills | Sep 14, 2020 6:14:45 PM

Apparently, my "think like a hypothetical decisionmaker who is justifying a particular decision" hypothetical didn't come across as hypothetical enough.

I personally wouldn't fire Bayless for this comment; I was explaining how I'd justify it if that decision had been made, by me or by higher-ups. Bayless's comment (this time) is far from the worst one is going to hear on sports-talk radio (and, although there are moving pictures along with it, don't kid yourselves — it's sports-talk radio). I might well reconsider whether the ratings I get week to week justify the risk of this kind of catastophe, but that's a less-well-defined issue.

I instead would have fired him years ago for an attitude inconsistent with any conception of journalistic conduct while pretending to hide behind being a journalist. And for having an ego bigger than most top litigators and Cabinet officials, because if I were a media executive — and I'm clearly not! — the biggest ego in the building would have to be mine. (I'm only partly joking I've been across the table from them waaaaay too frequently.) This conference room ain't big enough for the two of us, Skip

Posted by: C.E. Petit | Sep 13, 2020 12:06:38 AM


Your last comment actually sounds like a really good post. But that's not the post you wrote. The post you wrote is indeed thinking out loud, but it's thinking out loud about how to justify getting Bayless fired (that's what all of your examples are), which is backed up by Petit's post.

Posted by: thegreatdisappointment | Sep 12, 2020 4:41:58 PM

There is a line between "silencing mob" and "people exercising their First Amendment right to counter-speak by disassociating from some expression and some speaker." I don't know where that line is; part of the point of this and other posts is thinking out loud about where to place it.

Not arbitrary. Based on a definite, clear, viewpoint-neutral principle.

Posted by: Howard Wasserman | Sep 12, 2020 4:24:36 PM

The problem with the cancel-culture armaggedonists, as reflected in the postings here, seems to be that they must, in order to make arguments work, try pretty hard to convince people that what they're criticizing really is a maoist mob or that it will seek professional reprisal against anyone who transgresses an orthodoxy.

But whatever you mean by cancel culture is a they, not an it. And while I have no doubt that there are some people who behave the way you describe, those generally in positions of power, or who own decisive votes, don't seem to behave that way often. I'm sure there are examples to the contrary - but far fewer examples than where transgression is treated as no big deal. The problem is that the shoulder-shrug reactions aren't splashed across the blogosphere, so those don't really register as data points.

Anyways, in order to maintain the characterization that, e.g., thegreatdisappointment and theRealAnonymous make, it seems that the group comprising "cancel culture" has to be defined so narrowly that it doesn't really exert the institutional power that is necessary to make the rest of the argument work.

Posted by: Lee Kovarsky | Sep 12, 2020 4:16:08 PM


I think Petit's post pretty well proves my suspicion re: cancel culture proponents' attitudes vis-a-vis violating their uncodified acceptable speech/thought catechism.

Posted by: thegreatdisappointment | Sep 12, 2020 12:13:47 PM

Maybe the problem here is the perception that it's one comment over the line, and here I'm afraid that Mr Bayless is an excellent example. His past comments regarding, for example, the USWNT (REAL football), demonstrate to my satisfaction that he's not actually a commentator with real expertise to provide; he is, at best, a provocateur.

Were I an executive for a media company firing him, I would list a wide range of unacceptable comments that demonstrate that Bayless does not in fact have a coherent "message" he's communicating, and state that my company demands better of its public-facing employees. That is, if we're a "news" and "commentary" outlet, we demand "news" and "commentary" and not ego-stroking and attention-getting behavior (often over the line to outright bullying) more appropriate to third-grade recess.

Some people would still object. But by not making it about a single comment, I think any adverse reaction to the media company would be short-lived... and it might just "encourage the others."

Posted by: C.E. Petit | Sep 12, 2020 11:34:49 AM

Yes, and my point is that I don't think cancel culture proponents actually recognize that re: speech and thought violations (which is the point of this thread).

If you say you, personally, think people shouldn't be fired simply for saying something or thinking something that runs counter to cancel culture catechism, ok. I've never seen any evidence of it (this post included) but, I will take your word for it.

However, your personal views aside, I think it's going to be a stretch if your goal is to say that cancel culture generally accepts that people should not be fired for every speech or thought violation that violates their catechism.

All that to say, for the sake of the discussion, you asked that we accept that it's generally accepted that people should not be fired for every speech or thought violation; however, I don't think we can make that assumption. The actions of cancel culture proponents simply won't allow us.

Posted by: thegreatdisappointment | Sep 11, 2020 3:12:28 PM

No, it's not. Which is obvious from my original statement which you quoted, "Recognizing that people should not be fired for every misstep or for holding the wrong views"--that includes missteps and wrong views.

Posted by: Howard Wasserman | Sep 11, 2020 2:51:13 PM


I must be honest, that's a strange response.

It seems to support my understanding of cancel culture that, sure, y'all are fine with not firing someone who makes a clerical error, but you actually do believe people should be fired for any infraction against acceptable speech or thought (as defined by cancel culture).

I am curious as to whether this is your stance.

Posted by: thegreatdisappointment | Sep 11, 2020 2:37:40 PM

I was saying people should not be fired for every misstep.

Posted by: Howard Wasserman | Sep 11, 2020 2:16:05 PM

"Recognizing that people should not be fired for every misstep or for holding the wrong views"

I actually don't think cancel culture proponents recognize this. Or, at least, they may say, sure, you shouldn't be fired for filing something wrong, but you should be fired for any speech or wrongthink infraction (and their action--including this post--seems to back that up).

It seems to me you've set up a strawman.

Posted by: thegreatdisappointment | Sep 11, 2020 2:06:55 PM

There is no difference between your first and second paragraphs--both involve private entities making associational choices to disassociate themselves from someone's speech. It is the employer in the first paragraph and the customers/viewers/purchases in the second, but they are doing the same thing. Critics of "cancel culture" would not distinguish: 1) FSN firing Bayless; 2) Sponsors pulling ads; 3) viewers no longer watching; and 4) viewers calling for ## 1 or # 2--all would be derided as anti-speech attempts to cancel. But all are themselves reflections of someone's expressive and associational choices.

Recognizing that people should not be fired for every misstep or for holding the wrong views, the question is where to draw the line not as a legal matter but as a "free-speech values" matter.

Posted by: Howard Wasserman | Sep 11, 2020 1:21:41 PM

Those who criticize "cancel culture" have never questioned the ability of private entities to do the things you list. In fact, the folks who advocate for someone to be cancelled are often the folks who are more willing to have the state intrude in private decision-making. Wink wink.

What many cancel culture critics are critic of is the pressure emanating from the usual suspects (including, I suppose, this blog) to tilt the private decision-making process by making the not-cancelling alternative much more costly than what it should really be.

Posted by: theRealAnonymous | Sep 11, 2020 12:34:52 PM

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