Our Fundamental Right To Shame And Shun The New York Times
What the NYT Cancel Culture Editorial Got Wrong, And What It Got Right
If you want to be a decent person, you should care about how you treat other people. What else is important in life? It’s right and fit that we discuss how we can treat each other better. Our chat can’t be limited to not punching your little sister or not eating your roommate’s leftover Pad Thai. Most of the time we treat other people kindly or cruelly by talking — talking to them or about them. If we want to be better people, we should think about how we talk to and about other people — including when we’re mad at them. It’s easy to be nice to someone when you’re happy with them. It’s harder to be kind when dealing with our enemies, strangers, and the least of us. So it’s legitimate to examine how we respond to speech that makes us mad. We should have a thoughtful conversation about whether modern American culture encourages us to react excessively and even cruelly to speech we don’t like, how that impacts people, and what we should do about it.
The New York Times’ Editorial Board did not offer such a thoughtful conversation in its piece “America Has a Free Speech Problem,” which discusses oft-invoked “cancel culture.” It’s vexingly unserious.
No Such Right
The problems begin in the lede, which the Editorial Board used on social media to promote the piece:
For all the tolerance and enlightenment that modern society claims, Americans are losing hold of a fundamental right as citizens of a free country: the right to speak their minds and voice their opinions in public without fear of being shamed or shunned.
This is sheer nonsense from the jump. Americans don’t have, and have never had, any right to be free of shaming or shunning. The First Amendment protects our right to speak free of government interference. It does not protect us from other people saying mean things in response to our speech. The very notion is completely incoherent. Someone else shaming me is their free speech, and someone else shunning me is their free association, both protected by the First Amendment.
Many words later in the piece, the Editorial Board ambiguously acknowledges this, sort of:
It is worth noting here the important distinction between what the First Amendment protects (freedom from government restrictions on expression) and the popular conception of free speech (the affirmative right to speak your mind in public, on which the law is silent). The world is witnessing, in Vladimir Putin’s Russia, the strangling of free speech through government censorship and imprisonment. That is not the kind of threat to freedom of expression that Americans face. Yet something has been lost; the poll clearly shows a dissatisfaction with free speech as it is experienced and understood by Americans today.
I appreciate the Board correcting its opening mistake 3/4ths of the way through the op-ed, but it’s still incoherent. “[T]he popular conception of free speech [the affirmative right to speak your mind in public, on which the law is silent]” is vague and nonsensical too. The law isn’t silent on the affirmative right to speak your mind in public. The law protects it. And this articulation of the “popular conception” still doesn’t even attempt to explain where your conceived right to speak ends and my conceived right to respond begins.
Some defenders of the op-ed say that critics are being too pedantic, and that it’s clear the Times is talking about norms, or “free speech values,” or "free speech culture” or “norms.” First, bullshit. It’s the New York Times Editorial Board. I’m not critiquing a middle-schooler’s essay. I can hold them to a standard of coherence. More importantly, slapping a different label like “norms” on the assertion doesn’t cure the central problems it poses. The problems are these:
We don’t have anything resembling a consensus on what “cancel culture” is and we’re not having a serious discussion about defining it;
We don’t have a consensus on how we reconcile the interests of speakers and responders, and we’re not making a serious attempt to reach one.
We don’t have a consensus about what to do about it and we’re not trying to reach one.
Ignoring these problems isn’t a quibble. They’re the main event.
What Is Cancel Culture?
The Editorial Board does not attempt to define “cancel culture” or articulate the boundaries of the sort of shaming, shunning speech that should concern us. You can’t blame them. Hardly anyone tries. Even the famous Harper’s Letter — praised as an attempt to start a dialogue about the subject — criticized speech that tries to punish or silence, but didn’t try to define it. The Times simply waves an imperious hand at the issue:
However you define cancel culture, Americans know it exists and feel its burden.
That’s nice, I’m sure, but it’s not actionable, any more than the Harper’s Letter was. Both pieces make references to some things we might try to agree on — like people getting fired for speech — but neither offers even a gesture at getting there.
Some thoughtful people of good faith have tried — I’d cite Greg Lukianoff and Nicholas Christakis, for instance. I’m going to offer a working definition for the purposes of this essay: “cancel culture” is when speech is met with a response that, in my opinion, is very disproportionate. Perhaps that sounds cynical, and I could certainly give you a Justice-Breyer-seven-factor balancing test, but that’s what this discussion boils down to: just as we constantly debate norms of what speech is socially acceptable, we debate norms about what responses to speech are socially acceptable.
Let’s discuss some examples, because when I criticize sloppy use of “cancel culture” I’m accused of denying that there are ever any unfair, disproportionate, or evil responses to speech. I don’t deny that. What happened to Justine Sacco was, in my opinion, very disproportionate. What happened to David Shor was disproportionate and maddeningly stupid. What’s happening in the community of Young Adult Fiction seems like a complete shitshow that makes me want to avoid everyone there. What happened to Professor Greg Patton was disproportionate and anti-Asian bigotry to boot. Shouting invited speakers down so they can’t speak and attendees can’t listen is fascist and contemptible. I could go on, but you get the point.
Why Working Towards A Definition Is Important
Why should we care about having a serious discussion about defining cancel culture? We should because simply complaining about it in the abstract, without attempts to define it, without actionable responses, and without taking the rights of “cancellers” doesn’t ease the culture war. It inflames it.
There are several problems. One is that “cancel culture” is relentlessly, constantly used in a cynical, bad-faith way. Vladimir Putin claims that the West is trying to “cancel” Russia merely for invading a sovereign nation — a suggestion echoed, I sure hope ironically, in the Times itself. Mike Lindell, who indulged in a series of bizarre and frivolous lawsuits attacking the 2020 election, constantly complains he is the victim of cancel culture, and is supported in that claim. People tried to portray bad actors like Harvey Weinstein and R. Kelly as cancel culture victims when people reacted to their behavior. Everyone gets in on the fun:
Our failure to have a serious discussion about defining “cancel culture” encourages this. When some people vaguely complain about “cancel culture” in a way that lends itself to promoting this constant partisanship, other people not unreasonably see it as partisan.
That leads us to the next problem — framing “cancel culture” as something that evil liberals do to beleaguered non-liberals. Even the Times Editorial Board implicitly accepts this frame by portraying cancel culture as liberals’ weapon and censorial laws as conservatives’ weapon:
How has this happened? In large part, it’s because the political left and the right are caught in a destructive loop of condemnation and recrimination around cancel culture. Many on the left refuse to acknowledge that cancel culture exists at all, believing that those who complain about it are offering cover for bigots to peddle hate speech. Many on the right, for all their braying about cancel culture, have embraced an even more extreme version of censoriousness as a bulwark against a rapidly changing society, with laws that would ban books, stifle teachers and discourage open discussion in classrooms.
It’s good that the Times is worried about speech-suppressing laws promoted by some conservatives, but it’s terrible that the Times is gullibly accepting the Right’s deeply dishonest assertion that it doesn’t engage in the sort of behavior it calls “cancel culture.” There is no serious argument that conservatives refrain from “cancel culture.” Conservatives attempt to cancel liberal professors all the time. Conservatives decry disinvitation even as they indulge in it. The meretricious Turning Point USA, which constantly bemoans cancel culture, maintains a enemies list of too-liberal professors. Conservative luminaries accuse opponents of legislation of wanting to groom minors for abuse. Our former President constantly complained about cancel culture and just as constantly demanded that people get fired for speech he didn’t like. Don’t get me started on Colin Kaepernick or Liz Cheney.
The perception that “cancel culture” is inherently partisan is also driven by the fact that many complained-of “cancelations” are the result of discussions about race, gender, and sexuality — issues on which social mores have changed rapidly, and issues that are often partisan.
So, once again, when people write vague and ill-defined criticisms of cancel culture, many people not unreasonably hear partisanship. I’m not saying that the New York Times Editorial Board intentionally supports those cynical elements of the Right. I’m saying the New York Times Editorial Board is being their useful idiots. Anyone who accepts the liberals-are-evil frame of “cancel culture” disingenuously promoted by the Right isn’t making a serious effort to fix the cultural problem.
Propaganda Drives Perception
This brings us to another problem: reality vs. perception. The Times’ piece relies heavily on polling suggesting that Americans perceive they are less socially free to speak. I’ll let an expert on polling address the quality of the questions, which strike me as highly suggestive. Instead, consider that Americans’ perceptions are often driven by the media. For instance, Americans constantly think that crime rates are up even when they are demonstrably not. That’s hardly surprising in a if-it-bleeds-it-leads media environment. Most Republicans believe the 2020 election wasn’t legitimate, a position more grounded in propaganda than reality. Americans vastly overestimate the size of minority groups, likely based on their prominence in political discourse. I’ve encountered this in my career when I do sexual harassment prevention trainings — employees often express fears that anything can be sexual harassment, and that it’s easy to win a sexual harassment case, both propaganda-driven perceptions that are demonstrably untrue.
All of this is to say that Americans’ perception that they can’t speak without disproportionate blowback is not unimpeachable. It’s undoubtedly influenced by the constant drumbeats of media complaints about cancel culture — by media figures telling people they can’t speak without extreme retaliation. That’s a legitimate question for discussion, and the polls are not the proof the Times thinks.
Everybody’s Rights Matter
The Times also errs by utterly failing to grapple with the problem that “cancelling” represents free speech and free association. Saying we should “end cancel culture” means we’re saying some people should refrain from some exercises of speech and association to promote other people feeling more free to speak.
That’s not an outrageous proposition. We have cultural norms to that effect, and we follow them all the time. If, at a cocktail party, someone says “we should just make hate speech illegal, it’s easy,” I probably won’t say “that’s fucking stupid Janet, you’re a dim person, put down that Appletini and get the fuck out” even if that’s what I think in my head, because cultural norms tell me that’s rude and disproportionate. If I happen across an eighth-grader’s essay arguing that Donald Trump will be indicted for RICO, I won’t put the eighth-grader on blast the way I will if Rachel Maddow says it, because norms tell me that would be disproportionate. But a discussion of norms that value proportionality and make people more comfortable speaking isn’t serious if it doesn’t take into account the interests of the people who want to speak in return. This is what I’ve called the “First Speaker Problem” — a focus on the freedom and feelings of whoever started talking to the exclusion of the freedom and feelings of whoever is responding.
The First Speaker Problem is a categorical error. It treats its focus — the First Speaker — as being in a different category than people responding, and ignores the fact that the First Speaker is almost certainly responding to someone else’s speech. It assumes, without evidence, that the First Speaker’s speech somehow promotes open discourse and isn’t itself “disproportionate” — in other words it utterly fails to aim the norms-based analysis at the First Speaker’s speech.
Let’s consider an example. Milo Yiannopoulos, who was once a thing, frequently complained of cancel culture, was portrayed as its victim, and was the subject of demands that his campus speeches be cancelled. His campus talks sometimes inspired violence. But Milo Yiannopoulos is also a guy who went to the University of Wisconsin-Milwaukee, called out by (former) name a specific transgender student, put a picture of her up on his screen, ridiculed her, and attacked her for a complaint she had filed regarding what bathrooms she could use. “Cancel culture” discourse normally focuses exclusively on whether the responses to Yiannopoulos violate norms without asking if he violated norms himself. It’s irrational to ask whether responses to Yiannopoulos discourage speech without asking whether what he did discouraged speech. Do you think that singling out and naming (deliberately with a former name) an activist student, putting up her picture on the screen for his audience to jeer at, and condemning her encouraged speech? Do you think trans activists — or any campus activists Yiannopoulos doesn’t like — felt more free to speak after that? What is the morally or philosophically coherent basis for focusing on Yiannopoulos’ feelings to the exclusion of the feelings of the person he singled out?
Moreover, we’d be gullible if we didn’t ask whether the anti-cancel-culture norms being promoted by speakers like the New York Times are egalitarian or elitist. The New York Times — the “paper of record” — has an incredibly loud megaphone. Most people can’t get published in the Times. When we’re promoting anti-cancel-culture norms, do those norms equally limit the Times and @AdmiralBallsack1973 on Twitter? Or do they favor the elite expression over non-elite expression? This isn’t an idle question. The rise of concerns about “cancel culture” has followed the ubiquity of social media, which gives nobodies a chance to criticize somebodies in a way that might get widespread attention.
We also err if we pretend that norms don’t have political resonance. Boycotts, loud denouncing protests, shunning, shaming, ridicule — these have been cited as cancel culture, but have often been tools of less powerful people against more powerful people. The Times notes, without a lot of apparent reflection, that some people now feel more free to speak than they used to:
Pollsters asked how free people felt today to discuss six topics — including religion, politics, gender identity and race relations — compared to 10 years ago: more free, less free or the same. Those who felt freest were Black respondents: At least 30 percent of them said they felt more free to speak on every topic, including 42 percent on race relations, the highest share of any racial or ethnic group.
Well, no shit. Norms change with politics, and political ideas that people didn’t feel comfortable discussing 10 years ago become more mainstream. The Black Lives Matter movement made frank discussion of police abuse far more mainstream. The Right has been fighting back against that with both cancel culture and state censorship ever since. Policing how people respond to public statements about controversial topics — and how they respond to other people’s speech — is inherently political, and it’s silly to pretend that it’s not.
We can have a robust conversation about whether we should mutually agree on norms to limit our speech. But pretending that we’re not doing that — pretending we’re not asking people to shut up — is unserious.
We Need Action Items
Finally, the Times’ piece suffers from a common failing of “cancel culture” complaints — a failure to suggest what to do about it.
Suggesting what to do about cancel culture is a big ask. It’s complicated and contentious. But just complaining about it without specifics promotes all of the problems I’ve discussed — it makes the dialogue more susceptible to partisanship, it promotes ignoring the competing rights at issue, and it encourages fuzzy thinking.
People complaining about “cancel culture” frequently suggest that it chills speech. Perhaps. But so does a vague denunciation of other people’s speech. In responding to bumptious defamation threats, I often say “vagueness in a defamation threat is the hallmark of meritless thuggery.” That is, if you say someone’s speech is defamatory and threaten to sue over it, without specifying which exact speech is defamatory, you’re likely just trying to chill speech, not redress genuine defamation. Similarly, if you denounce “cancel culture” without citing specific examples and suggesting how people should act differently, you’re closer to chilling speech than fixing it. Talking about “cancel culture” can be an genuine expression of concern that some response speech is disproportionate and outside our society’s norms, or it can be a partisan attempt to delegitimizing entire areas of conversation — usually race, gender, and sexuality.
When I read attacks on “cancel culture” I’m often left wondering what I’m being asked not to do. Take this recent New York Times piece by a student talking about self-censorship:
When a class discussion goes poorly for me, I can tell. During a feminist theory class in my sophomore year, I said that non-Indian women can criticize suttee, a historical practice of ritual suicide by Indian widows. This idea seems acceptable for academic discussion, but to many of my classmates, it was objectionable.
The room felt tense. I saw people shift in their seats. Someone got angry, and then everyone seemed to get angry. After the professor tried to move the discussion along, I still felt uneasy. I became a little less likely to speak up again and a little less trusting of my own thoughts.
I was shaken, but also determined to not silence myself. Still, the disdain of my fellow students stuck with me. I was a welcome member of the group — and then I wasn’t.
What, exactly, is the ask in these paragraphs? Should students not shift in their seats? Should they not be angry? Should they not feel disdain? Should they not say they think speech is offensive if they think it is? Why does it feel more like policing other people’s expression than defending expression? Later the author later offers some excellent suggestions for schools to take specific actions, but like many complaints about cancel culture, this section leaves me wondering how exactly we’re being asked to self-censor to make the speaker more comfortable.
I believe more specificity — action items — is the answer. Pointing to specific instances of “cancellation” and debating why they are inside or outside of our norms is a productive action item. Saying “colleges shouldn’t disinvite speakers because of controversy” is a good specific action item; we can debate it. Saying “Ken, stop piling on 20-follower Twitter accounts when they say stupid things” is an action item; I can debate it. [Shan’t.] Saying “stop demanding that businesses fire people for what they say off the job” is an action item. I might not agree but we can discuss it. Saying “if a minor says something racist in a semi-private setting we shouldn’t put them on blast and make them infamous” is an action item. We can grapple with it. We can’t grapple with “the culture makes me feel uncomfortable speaking.” Saying that just returns us to our cultural and partisan priors.
I’m in favor of robust debates over free speech culture and its relation to free speech law. I enjoyed such a debate with my friend Greg Lukianoff, who strongly disagrees with me on my approach, and I with his. But the Times Editorial Board offered a yawp, not a productive debate. I believe that “cancel culture” exists — that is, I believe that some responses to speech are disproportionate and outside norms of decency, and I think the culture sometimes encourages such responses. But the most common uses of the term are partisan nonsense — overwhelmingly, in my opinion. Get serious. Consider all the competing interests and be specific.
I knew I had this tab open for the past six months for a reason. This is excellent. And the First Speaker Problem is a term I will be using. It's a huge problem in these conversations.