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Saturday, January 09, 2021

On "cancel culture"

A great post on cancel culture from Sasha Volokh at the VC. He touches on the Hawley book contract, social media control (presciently written before Twitter banned the President and the accounts of everyone the President was using to try to get around the ban), private universities, and school-curriculum choices. I join his closing point:

"Cancel culture" is a broad term that embraces lots of different acts and lots of different consequences—boycotts, firing, piling on to someone on social media, refusal to be friends, rescinding a college acceptance or speech invitation, pulling down a statute, taking a book off the curriculum, etc. In some cases, some of those acts might violate someone's rights. This is especially true when someone has made a contractual commitment to do the opposite, or when a government is doing the acting. Governments have certain duties to be evenhanded, but people lack those duties. Instead, people have freedom, both freedom to choose how to use their property and other resources, and more generally a right to choose who they'll associate with. Those are core freedoms. We should feel free to argue about how people ought to exercise their freedoms, but always recognize that the freedoms are theirs to exercise.

Contrast this with the statement of the National Coalition Against Censorship's statement on the Hawley book, which concludes that the "best defense for democracy is a strong commitment to free expression." This rests on one of two competing premises--either that the only one engaging in "expression" here is Hawley's or that the expressive rights of the publisher must be in the direction of producing more speech.

NCAC also errs in relying on this idea: "Many of the books–and many of the authors–are highly controversial and generate intense opposition. When that happens, it is crucial that publishers stand by their decision to publish, even when they strongly disagree with something the author has said." Perhaps that is the correct principle in the standard-issue "author of YA fiction says controversial thing about topic du jour" case or in the "non-group members cannot write well about groups" case. This is not that. Simon & Schuster reacted to Hawley's actions as a United States Senator that contributed (in their view) to a mob storming the Capitol and attempting to interfere with the work of the government. That is a distance from JK Rowling taking an unpopular position on gender issues.

And a third example comes from various Republicans and conservatives on Twitter, defining "private company exercises control over the country's leader" as something that happens in China and complaining that the culling of right-wing extremists from the site has reduced their followers.

Posted by Howard Wasserman on January 9, 2021 at 10:48 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink


There's another fundamental problem with NCAC's criticism of Simon & Schuster: It incorrectly and improperly expands "Simon & Schuster" to be "all of trade publishing," as if losing the particular Simon & Schuster contract means that the book will never get trade publication. (I can almost hear the fighting inside of Regnery for who gets to call and make the offer by Monday morning!) And even that leaves aside the possibility — indeed, probability — of some form of self-publishing.

Will that result in the maximum profit to Hawley? Probably not; he will be required to repay his advance received from Simon & Schuster, which will limit (certainly not eliminate) outlets and means. The same goes for getting banned from any particular social media platform (or even all social media platforms) — there's always the privately-owned website to consider. Like this one! And that is not "suppression" — it is, at most, disabling free ridership on the platform's preexisting popularity.

There is a false dilemma silently established in the way the problem is stated. The irony that this is precisely the argumentation method often employed by the nutcase fringe (regardless of its orientation) appears to have escaped everyone.

Posted by: C.E. Petit | Jan 10, 2021 11:51:24 AM

Right-wing lawyers have never accepted the legitimacy of public-accommodations laws, despite the fact that they simply expand upon notions of common-carrier status of ancient vintage. The trick consists of confusing a mere property right to make use of real estate (which is created by, and can be modified by, the law) with individual First Amendment rights.

Those lawyers now find themselves at odds with right-wingers of a more populist bent, who are now arguing that social media should be either subjected to such common-carrier regulations or (I am not making this up, unbelievably) nationalized so that its operations will be subjected to the First Amendment.

Posted by: Paul Thomas | Jan 10, 2021 9:22:45 AM

If this is true: “ It would be a violation of its property rights, because it would force Simon & Schuster to use its resources to serve someone it doesn't want to serve. And it would be a violation of its freedom of association, which is one of our most important moral rights.”

How was government able to force Jim Crow restaurant owners to serve people they didn’t want to serve?

Posted by: Ted MacLeod | Jan 10, 2021 7:49:11 AM

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