« More on Semicolons | Main | You can't pay me to play the Star Spangled Banner »

Wednesday, February 10, 2021

Healy on cancel culture

Thomas Healy (Seton Hall) has a great short essay arguing that social censure of speech--what conservatives denounce, ad nauseum, as cancel culture--is a form of protected counter-speech in most contexts. I especially like the closing flourish: "For under our free speech tradition, the crudest and least reasonable forms of expression are just as legitimate as the most thoughtful and eloquent."

If anything, Healy may underplay the protected nature of much of what gets derided as "cancel culture," for reasons I have discussed in prior posts. The anti-cancel arguments benefit powerful speakers who can have access to a forum to be heard, then demand that other speakers only engage "on the merits" and reject anything else as silencing, while feeling no obligation to engage with the little people.

Healy also has a great response to complaints about silencing, reminding us what the marketplace of ideas is about:

Put bluntly, the implicit goal of all argument is, ultimately, to vanquish the opposing view. We don’t dispute a proposition in the hope that others will continue to hold and express that belief. Unless we are playing devil’s advocate, we dispute it to establish that we are right and the other side is wrong. If we are successful enough, the viewpoint we dispute will become so discredited that it is effectively, although not officially, silenced.

I had not thought to put it in these terms, but this is right. The "marketplace of ideas" is not a debating society. Its purpose is not to air all ideas to air all ideas, but to identify those ideas that we want to adopt and to reject those that we do not. The left/liberal criticism of the marketplace is that it does not work and abhorrent ideas continue to exist and to flourish, even as most people find them offensive. If government cannot silence speakers and speech and even one person is entitled to hold onto a bad idea, disassociating from those ideas and from those who espouse those ideas must be built into the market.

Worth a read.

Posted by Howard Wasserman on February 10, 2021 at 03:36 PM in First Amendment, Howard Wasserman | Permalink


great disappointment,

your disagreement with the logic of the argument here is irrelevant to my point, which is that it was not being properly described or confronted. Having read the comments on more than one post on this website, I have less than zero interest in engaging with you in particular on the merits.

Posted by: luke | Feb 15, 2021 11:44:14 AM


wrong. people peddling the product tat's not selling would re-tool to sell a different product. failing businesses don't get kicked out of the marketplace and their ability to do business ever again revoked. They adapt to the market. That's not what cancel culture does. It kicks people out of the market entirely.

Posted by: thegreatdisappointment | Feb 14, 2021 3:11:57 PM

Q. What is cancel culture?
A. See, e.g., the New York Times firing of its long-time science reporter, Donald McNeil Jr., at the demand of the wokest of the woke NY Times employees.

Posted by: Douglas B. Levene | Feb 13, 2021 4:30:24 PM

The idea that the First Amendment has extralegal force is hardly anything novel. The basic attack on "cancel culture," demonstrated amply in these comments, relies on that premise, in that it argues that the marginalizing or "cancelling" of people with certain viewpoints is inconsistent with a civil society that respects the value of free speech and the values behind the First Amendment.

To the extent that Healy's response was limited to the idea that "cancel culture" is itself counter-speech and therefore protected speech, I can see how one might think that was unresponsive to the critique. But that's not the entirety of Healy's response, and more fundamentally I think it is responsive. If you take the marketplace metaphor seriously as an animating principle of the First Amendment, the entire point of the "search for truth" is that "untruths" eventually lose their shelf space in that marketplace. At some point, the people who stock the shelves of the marketplace get to stop restocking "Sandy Hook was a false flag operation," and stop purchasing more goods from the peddlers of that particular untruth. Deplatforming Milo and Alex Jones and the ilk is perfectly consistent with free speech values. That's the broader point being made here.

Posted by: luke | Feb 12, 2021 2:01:12 PM

(Sorry, *Healy's* article, not *my* article.)

Posted by: Orin Kerr | Feb 11, 2021 8:30:02 PM

I've now read my article, and I'll stick to my guns on this and say no more.

Posted by: Orin Kerr | Feb 11, 2021 8:29:37 PM

The point is that we operate under a regime in which government will not stop bad speech, so we depend on other speech to expose the bad speech (and bad speakers of the bad speech). So now we have to identify--as a practical rather than legal matter, because government is not getting involved in this--how bad speech can be exposed and what are appropriate methods for bad speech. I think that is what Healy is doing here. And he is quite careful and thoughtful about the lines we should draw.

Posted by: Howard Wasserman | Feb 11, 2021 5:16:25 PM

Howard, I guess I'm still confused: What is "counter speech" other than a legal concept? I suppose we can all agree that it's counter speech in a colloquial sense that it is "speech in response to speech," but the debate over counter culture is about whether it's a fair or appropriate response to that speech. To not address that strikes me as just to ignore the actual debate, not to make a deep insight about it.

Posted by: Orin Kerr | Feb 11, 2021 4:30:30 PM

If that's his argument, you shouldn't have said "arguing that social censure of speech . . . is a protected form of counter-speech," which makes it sound like he's making the silly argument that "cancel culture" is fine just because it's protected speech. Now, in your response to Orin, you say his argument that what gets derided as "cancel-culture" is "counter-speech," but that by itself doesn't get us anywhere on the normative question unless counter-speech is per se normatively appropriate, which it's obviously not. For example, a lot of counter-speech nowadays takes the form of distorting what someone said to make it out to be more racist than it was, in order to make people feel uncomfortable about sharing or relying on that person's opinion (or even research finding). Now that is nothing but speech; it may not even qualify as "cancel culture" under the ordinary definition if it's just an attack on the opinion rather than the speaker. But if you can't, for example, talk in many settings about research finding that the racial differentials in police shootings are largely attributable to racial differentials in the frequency of police encounters with armed civilians without being told that the research is based on racist stereotypes and is itself racist because it denies structural racism, a lot of people will choose not to participate in conversations on the topic, or cite relevant data, and people's understanding of reality will be distorted.

Of course, ostracizing people with certain views is often justified, but cancel culture's really being counter-speech doesn't mean it's per se or even likely appropriate; it's always a question of what the counter-speech is a counter to, whether the costs of cancellation (e.g., the silencing or widespread ignoring of someone who makes largely useful contributions to discourse) are worth the benefits, whether the counter-speech is truthful, whether the ideas being countered are so harmful that disingenuous counter-speech is instrumentally justified, etc.

Posted by: Asher Steinberg | Feb 11, 2021 4:19:58 PM

"negative reactions" being campaigns to destroy livelihoods.

i find it difficult how one can say, "you're free to say what you want, but we have the right to destroy your livelihood if we don't like it."

under that conception of free speech, what action isn't a right? I'm free to do anything I want, though I may be imprisoned, executed, detained, etc. for some of those actions.

i find it interesting to have a mob arrayed against you that says, 'if you say this then we'll destroy you . . . but you totally have free speech'.

Posted by: thegreatdisappointment | Feb 11, 2021 3:41:16 PM

Orin: Healy is not arguing about what is legal. He is arguing about what is appropriate as "counter-speech" and making the point that some of what gets derided as cancel culture is counter-speech. He is not fighting off attempts to make cancel culture unlawful; he is responding to those who shout cancel culture after negative reactions to their speech.

Posted by: Howard Wasserman | Feb 11, 2021 3:19:58 PM

Howard, I don't think I get it. The complaints about "cancel culture" are about what is appropriate, not what is legal. It's about what are good ways to treat other people, not about what are legal or illegal ways to treat other people. Given, that, why isn't Healy's argument just a straw man, or perhaps, missing the point?

As for the idea that "the implicit goal of all argument is, ultimately, to vanquish the opposing view," I couldn't disagree more. I think the point of argument is to search for truth: We make claims as best we can see them, to test them, to see if we are right, with the goal of being proven wrong if we are wrong. If we make bad arguments, we should be delighted to be shown wrong: We should want to lose arguments if we are on the wrong side, as that is the only way we improve our ideas. The goal is to get to the best ideas, not to win arguments even if we're wrong based on some kind of warfare analogy. Or so it seems to me, maybe I have been doing it wrong.

Posted by: Orin Kerr | Feb 10, 2021 7:00:40 PM

Realistically, alternative ideas are repeatedly not actually silenced.

The same basic disputes appear to be be debated over and over again in some form. There is no realistic chance from experience of this being otherwise in many cases.

Some ideas EVENTUALLY die out. So, though you can find this some places, defending the right of a store to discriminate against black people is now something most deem abhorrent. But, a lot of speech isn't like that.

Finally, I don't think complete vanquishing is often sought out. Many, e.g., don't think it wrong for people to "express" the idea that abortion is wrong. They think it is a private choice and don't expect everyone would accept that it is right in various instances. The idea they deem really bad here is that you should criminalize it.

This pushes around the edges some. The basic idea that canceling itself is a form of expression makes sense. Shunning in effect is a powerful too that in certain cases is suitable.

Posted by: Joe | Feb 10, 2021 5:10:59 PM

Pictured: the marketplace of ideas functioning properly


Posted by: struggle session | Feb 10, 2021 4:47:21 PM

Funny that "abhorrent ideas" that "most people found offensive" 100 years ago . . . are mainstream ideas today. Perhaps because they were allowed to hang around and keep making their case, even though they were thought to be dangerous, odious, immoral, etc., etc.

The problem with this article is the idea that one ideas triumph in a moment in time is somehow correct or final.

Posted by: thegreatdisappointment | Feb 10, 2021 3:54:40 PM

The comments to this entry are closed.