The Threat to Free Speech, Beyond ‘Cancel Culture’

Plus: Attacks against Ketanji Brown Jackson, and the scholar-snitch problem.

Loudspeakers on a pole
Dave Hill / EyeEm / Getty

This is an edition of Up for Debate, a newsletter by Conor Friedersdorf. On Wednesdays, he rounds up timely conversations and solicits reader responses to one thought-provoking question. Every Friday, he publishes some thoughtful replies. Sign up for the newsletter here.


Question of the Week

“The University of Pennsylvania’s Lia Thomas made history on Thursday as the first known transgender athlete to win an NCAA swimming championship when she took the title in the 500m freestyle,” the Guardian reported last week. The victory intensified an ongoing debate about what rules should govern transgender athletes in high school, college, and professional sports.

What do you think about this, and why? What, if anything, are you unsure about? If you could ask one question of someone who doesn’t share your position to better understand theirs, what would it be?

Email your thoughts to conor@theatlantic.com. I’ll publish a selection of correspondence in Friday’s newsletter.


Conversations of Note

Last week, The New York Times published an editorial, “America Has a Free Speech Problem,” that fleshed out an argument that “cancel culture” poses a threat to pluralism and deliberative democracy.

Critics of the editorial pounced on a glaring flaw in its first sentence––more specifically, the final seven words of that sentence: “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.” A fundamental right to speak “without fear of being shamed or shunned” would be incompatible with something the First Amendment properly protects—shaming or shunning others.

I suspect that the editorial board itself would concede that point, because it sometimes shames others in its own commentary, and because the rest of its free-speech editorial is narrower in its claims.

This passage aligns much more closely with my thinking:

“People should be able to put forward viewpoints, ask questions and make mistakes and take unpopular but good-faith positions on issues that society is still working through—all without fearing cancellation,” the editorial asserted, because

freedom of speech is the bedrock of democratic self-government. If people feel free to express their views in their communities, the democratic process can respond to and resolve competing ideas. Ideas that go unchallenged by opposing views risk becoming weak and brittle rather than being strengthened by tough scrutiny. When speech is stifled or when dissenters are shut out of public discourse, a society also loses its ability to resolve conflict, and it faces the risk of political violence.

Of course, that raises a question: What is “cancellation,” exactly? I try to avoid that term in favor of more particular claims, like these: 1) Deliberative democracy depends on the willingness of citizens to air earnestly held positions, including wrongheaded positions, on matters that society is still working through. 2) Fulfilling attendant civic obligations sometimes requires the courage to air ideas publicly despite the possibility that those ideas will be criticized or even ridiculed. 3) Alas, many Americans self-censor on issues that society is still working through not because they are unwilling to have their ideas tested by fire, but because they so frequently see others personally and viciously attacked, arbitrarily and capriciously punished, or unjustly shamed or shunned by digital mobs who reject liberal speech norms. When others complain about cancel culture, those various speech-chilling treatments of others is often what I understand them to mean, granting that the term is underdefined, inconsistently applied, and sometimes abused.

As the attorney Ken White sees it, I’m going way too easy on the New York Times editorial board, partly due to its invocation of the term cancel culture, which he dislikes even more than I do.

His grievances:

  • 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.

He continues:

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 a genuine expression of concern that some response speech is disproportionate and outside our society’s norms, or it can be a partisan attempt [at] 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.

I am sympathetic to White’s concerns. For more, see the related debate he participated in with Greg Lukianoff of the Foundation for Individual Rights in Education, as well as Jonathan Rauch’s attempt to specify the circumstances in which cancel culture complaints should be taken seriously. Additional attempts to clarify terms and adjudicate what America’s free-speech norms ought to be are necessary––the cancel culture debate might be muddled, as Cathy Young illustrates in her analysis of recent kerfuffles, but the incidents that fuel it are ongoing.

To cite some examples from March:

In The Atlantic, I detailed excesses in the ongoing attempts to “cancel” all things Russian.

After covering very recent attempts by law students at UC Hastings and Yale to prevent controversial guest speakers from airing their views, the journalist and Yale Law alum David Lat wrote,

I can’t believe I’m having to write a defense of a free-speech regime in which people listen respectfully to the other side, even when they find the other side’s views abhorrent, as opposed to a free-speech regime where “freedom” belongs to whoever can yell the loudest. You would have expected—and hoped—that law students, as future lawyers, would understand the value of the former and the problems with the latter.

After a student group at the University of Virginia invited former Vice President Mike Pence to speak on its Charlottesville campus, the student newspaper, The Cavalier Daily, published an editorial opposing his “platforming,” arguing that “so-called ‘perspectives’ should not be welcomed when they spread rhetoric that directly threatens the presence and lives of our community members.”

An essay collection was nominated for a literary award, then pulled from consideration after its author took to Twitter to defend another author from social-media attacks she believed to be unjust.

Pen America, an advocacy organization that favors free expression, is tracking numerous bills in state legislatures that would restrict or punish the expression of certain ideas in educational settings.

Gold Star

Kudos to Andy McCarthy of National Review, who would like to see a judicial nominee rejected by the Senate, but came to her defense anyway in the matter of a specific attack that he found unfair:

I would oppose Judge Ketanji Brown Jackson because of her judicial philosophy, for the reasons outlined by Ed Whelan last week. I address that in a separate post. For now, I want to discuss the claim by Senator Josh Hawley (R., Mo.) that Judge Jackson is appallingly soft on child-pornography offenders. The allegation appears meritless to the point of demagoguery.

The deep-in-the-weeds details are here.

Provocations of the Week

In The Chronicle of Higher Education, Laura Kipnis, the Northwestern University cultural critic, asks, “Why Are Scholars Such Snitches?” In her telling, “the university bureaucracy has been hijacked for political grudge matches and personal vendettas.” She writes of her observations and experiences:

There are, to be sure, right-wing students and organizations dedicated to harassing professors whose politics they object to, but that’s to be expected. What’s not is the so-called campus left failing to notice the degree to which the “carceral turn” in American higher ed—the prosecutorial ethos, the resources reallocated to regulation and punishment—shares a certain cultural logic with the rise of mass incarceration and over-policing in off-campus America. Or that the zeal for policing intellectual borders has certain resonances with the signature tactics of Trumpian America, for which unpoliced borders are equally intolerable …

Is snitching a function of character, the result of a trait you either possess or don’t? Or is it rather that certain institutional contexts, like prisons, incentivize snitching? In higher ed’s overfunded, secretive, and ever-expanding punishment infrastructure (hiring for which now vastly outstrips new faculty lines), glutted with vague regulations about everything from romance to comportment to humor, snitching has become a blood sport.

In the Jacobin article “The Right Is Still the Enemy of Freedom,” Branko Marcetic argues,

There’s a narrative taking shape in certain corners of the political discourse right now that goes something like this: Democrats are the real authoritarians. While Republicans may have started this century leading the charge on shredding civil liberties and expanding the national security state, liberals and the Democratic Party have now taken up that torch, while the Right—with its opposition to pandemic mitigation and tech censorship, and its invocations of free speech—are the defenders of core civil rights.

This is, at best, half right. It’s true that the Democratic Party has, along with the rest of the US political center, embraced a range of authoritarian moves, from embracing and expanding George W. Bush’s “war on terror” and pushing for tech companies to censor political speech and ban users, to valorizing entities like the CIA and increasing the role of the national security state at home.

But are these alarming trends on the liberal side matched by a commitment to protecting civil liberties on the Right? In a word, no. From criminalizing protest, to banning books, concepts, and even words from schools, to using executive power in new, repressive ways—the Right continues to be an extreme and growing authoritarian threat in today’s United States.

Rest assured, dear reader, that you are safely in the hands of a vigilant and freedom-loving civil libertarian who trusts neither the right nor the left nor the center, and certainly not the Jacobins.

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