Cancel Culture and the First Amendment

At the apex of the right’s “cancel culture” hyperventilation earlier this year, old friends called me asking how I felt about it all, as a First Amendment lawyer, as someone who volitionally reads 18th century books about freedom of speech. Could social media companies really kick politicians off their platforms? Did publishers have the right not to print the words of authors that had egged on treason? Wasn’t it really just vigilante justice?

Growing up in the Republican cornfields of the Midwest, the questions from some who called seemed almost rhetorical, if not a bit of a “gotcha.” It was as if there was only one answer that could possibly follow: that “cancel culture” violated the First Amendment; that it was unAmerican and illiberal. And that I, of all people, would have to admit as much.

But that wasn’t the only answer; it wasn’t even the right answer, not close. And so I began to explain why, over and over. The First Amendment, I explained, only protects you from the government. For better or worse, it doesn’t protect you from private individuals, from corporations like social media companies or the random passerby.

In fact, the First Amendment violation would be in passing laws mandating that private individuals or corporations carry speech they would rather not carry. Everyone has every right to send the New York Times an op-ed, but no one has the right to compel the New York Times to print that op-ed. On the contrary, the New York Times has a right not to.

To excise it from the “liberal media,” imagine, I would say, that you put up a billboard in your front yard. Imagine further that someone knocked on your door and said, I’ll give you $500 to hang up by pro-choice banner on it. But because of your contrary views, you politely decline. How would you feel if you the government said, Sorry, you have to hang the banner? Who’s rights would be violated in that instance? Obviously, yours and not the pro-choice advocate.

At this point in the conversation, I would feel like the tide was turning a bit. So I’d move next to explaining that not speaking is considered speech just as much as speaking is. I’d explain that you have every right under the First Amendment not to be compelled to speak by way of some law. Refusing to carry that pro-choice billboard in your front lawn conveys a message just as much as putting up a pro-life banner does.

I’d then explain that, as far as I saw it, invoking “cancel culture” and the First Amendment was just a cop out. On the first point, banding together to call out someone because of the bad choices they made is speech just as much as the target’s original speech was. The theory of our Constitution — for better or worse — has always been that more speech is the solution, not less.

On the second point, I’d explain that while the targets of public ire spoke in terms of the First Amendment what they really meant was not the legal thing found in the Constitution but a philosophical commitment to freedom of speech. But even still that posed its own problems. A commitment to freedom of speech does not absolve us of the consequences of our own speech or conduct. That’s just the rules.

At any rate, demands that others “respect” freedom of speech rang hollow where the proposed fix was to limit others’ freedom of speech. That is, to infringe on others’ speech by way of compelling them to carry or suffer speech with which they did not agree. It all seemed very much — Freedom of speech for me, but not for thee.

The First Amendment does not protect you from your fellow citizens. It does not guarantee you an audience. It does not insulate you from responsibility for your actions. Grow up.

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