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Thursday, October 12, 2023

Yes, it is

It is difficult to talk about whether something constitutes "cancel culture" or not, since "cancel culture"--like "cancel culture doesn't exist," "critical race theory" as an epithet, "abolition," "taking back," "defund," "woke," and many other descriptive phrases and assertions that serve as substitutes for actual thought--is not a natural kind, but a bumper sticker whose definition is contested, indefinite, manipulable, and subject to endless motte-and-bailey exercises. For what it's worth, however, if cancel culture is defined, roughly and somewhat lengthily, as "a culture or cultural phenomenon in which social media and their dynamics frequently if not invariably play a principal role, in which objections to some alleged speech or action (one that is often misdescribed by the person or people complaining) move, sometimes immediately and en masse, from disagreement to an effort to ensure that the person loses jobs, job opportunities, existing and future speaking engagements, and so on, generally by leveraging social media and relying on bandwagon effects and other people's and institutions' fear of bad publicity or a similar fate," then yes, I would say that the NYU law student discussed by Howard has indeed been subjected to "cancel culture." I would add that this dynamic seems to me wrong and unhealthy in her case, as in many or most others. (I exclude the reported efforts of fellow students to remove the student from the position of SBA president for speaking ultra vires while purporting to represent the association. That does not seem illegitimate to me.)  

Because I--along with many or most other halfway serious people who worry about this dynamic, I think--believe that this is precisely a question of an unhealthy cultural dynamic (and an unhealthy cultural-technological combination) rather than some alleged absolute rule or formula, I do not find my general concern about this dynamic outcome-determinative in any individual case. One can dislike the dynamic and its seeming increased prevalence (including under-the-radar instances, as well as unreported actions or inactions resulting from chilling effects, like avoiding certain issues in the first place) while still evaluating individual cases, just as one can (for example) worry about government overuse of classification, believe that it is becoming too frequent or casual, and still conclude that a particular instance of classification was justified.  Obviously, opinions on this student's treatment will differ, especially in the heat of the moment.

In my case, I tend to think that the rescinding of the offer was a mistake. (Frankly, I go back and forth on this and, as I say below, I would hardly be offended by a contrary conclusion. But I do indeed tend to think so, mostly because of the dynamic behind the rescission.) I believe more strongly that Winston & Strawn's public rescinding of the offer was wrong. I find it indicative of the very dynamic that worries me. An institution that finds a person or his or her views repugnant, and/or decides with sincerity that they are a bad fit for the institution in light of their words or actions, may indeed decide not to hire that person; but it has no particular need to do so with fanfare. An institution that not only gets rid of someone, but makes sure to do so in a public statement, is that much more likely to be acting in at least some measure, if not completely, to propitiate a mob and dowse bad publicity rather than because of any considered decision about how that person will do the actual work of the institution. It's that dynamic I find highly unhealthy for a halfway decent culture of free speech and pluralism.  

Where I might differ with some is that I think the discussion around such issues would be greatly benefited by a dose of truth serum and some stripping away of the customary bunkum. I am happy to assume that Winston & Strawn in fact possesses some "firm values," although, honestly, my reaction to law firms and other business institutions--including universities--engaging in broad invocations of "values" is to worry about what comes next rather than to feel good about that institution. I am happy to assume that the student was sincere in their statement, although the statement itself strikes me as nothing but one rote delivery of tiresome bumper-sticker slogans after another, requiring nothing in the way of serious thought or commitment. (Obviously that tendency to rely on slogans is not limited to any particular political affiliation.) I am happy to assume that many people were genuinely outraged in their reaction to the statement, partly because outrage comes cheap online but also because I had a similar, if more ironically inflected, reaction to it myself.

But I think a truly candid statement by the law firm would have been something like this: "Frankly, we don't care much what our associates think. Why would we, as long as they're getting their work done and recording their hours correctly? But this statement has caused tsuris for us with the public, with important clients, and with our own colleagues, and it's just easier to cut her loose than to deal with even the few more days of bad publicity we would suffer. It's not at all clear why we focus on hiring graduates of high-ranked law schools instead of top graduates of the 150 other law schools out there. But even graduates of high-ranked law schools are a dime a dozen, and it will be easy to replace this one." A candid defense of the student would run something like, "Of course the student's statement was horrible. But they probably barely meant it, and they'll probably believe something different but equally idiotic next year. Anyway, if you got rid of every person with dumb views at any institution with a population larger than Paul Horwitz [and I'm not so sure about me, either], we'd all be out of a job." A candid criticism of the student would focus on the awfulness of the student's statement, rather than on ginned-up nonsense like an invocation of the bar's fitness rules. I don't presume to speak for the student. But I rather assume that the view of many similarly minded people in this situation would be roughly like Justice Black's opinion in Everson: "My views on pressing matters of social justice and the remaking of societal institutions are strong. They are urgent. They will not bend. And they do not prevent me from keeping my head down and doing document review on behalf of Raytheon so I can collect the outsized paycheck of a big-firm associate." None of these sentiments are the kind of thing one engraves in stone. But they're human-sized sentiments, and I think they would be a more candid description of everyone's actions and views.  

As I said, I don't think my views on the cancellation dynamic (especially in its connection to social media) are outcome-determinative about this particular individual and this particular case. And I don't think the fact that they are not outcome-determinative says much one way or the other about whether the dynamic exists or is worthy of concern. The view that the tort of defamation should exist, and even sometimes be available to public figures, hardly prevents someone from believing there are good reasons to cabin its scope, especially in cases involving public figures. People sharing my concerns about "cancel culture," as I've defined it, will surely disagree about particular applications. Thus, I will hardly be offended if someone shares my general concerns but thinks there were sufficient reasons justifying the law firm's actions here. But if Howard's question was non-rhetorical, then I would answer: Yes, it is an instance of the dynamic I'm concerned about, however one comes out on the individual case; and yes, even in application, at least one person thinks the law firm probably acted wrongly here.   

(I take no view on Howard's closing shot. At its core is an empirical question, and to answer it one would have to troll through social media, as to which God forbid. I'm not sure why he focuses on "the right" rather than on everyone who worries about cancel culture, since that larger population is ideologically diverse and not immune from hypocrisy, error, or tunnel-vision either. Also since he focuses on "the right," I assume he is not referring to FIRE, since that would be a misdescription, depending on how he defines "right" and "left" in the first place. [I do think FIRE ought reasonably to be concerned about this case, at least as a cultural rather than a legal matter.] And I should think that since he limits himself to those who think that "cancel culture is the worst thing ever," he is excluding from his count many people for whom cancel culture, actually and appropriately defined, is a) a genuine concern that b) is still subject to some degree of individualized consideration, like most things and c) a concern among many others rather than the worst thing ever, whatever that might be. And he might have added a word or two about those who belong to the "usual 'cancel culture doesn't exist' crowd" but have discovered a newfound concern over online crowds whipping each other up to demand someone's firing.)  

Posted by Paul Horwitz on October 12, 2023 at 03:29 PM in Paul Horwitz | Permalink


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