'Cancel culture', defined as a form of ostracism in which someone is forced out of social or professional circles - either online, in real life, or both - as the result of doing something that is considered objectionable or offensive, is becoming more and more relevant, particularly in the age of Trump, #MeToo, and Black Lives Matter. It is derided by those on all sides of the political spectrum as stifling discourse and freedom of speech, while its proponents argue that 'cancelling' someone is merely the consequence of their wrongful behaviour. This poses an important legal question, particularly when the courts routinely protect freedom of speech, arguing that "freedom only to speak inoffensively is not worth having." But, similarly, the courts have also imposed constraints on the freedom of speech - indeed, it has long been accepted one cannot yell 'fire' in a crowded theatre and expect to face no consequences if there was no fire. This blog post shall examine the role of the law in balancing the threat of 'cancel culture' to freedom of speech, and understand how freedom of expression can be lawfully limited.
Article 10 of the European Convention on Human Rights (ECHR) allows for speech to be restricted when it is necessary in a democratic society - crucially for the protection of others or the protection of health and morals. Antoine Buyse wrote an article focussing on the Vona case, where Hungary disbanded the Hungarian Guard Association, which had organised a number of paramilitary marches to call for the defence of ethnic Hungarians against "Gypsy crime." In this case, the Court held that such physically threatening and racially divisive demonstrations went further than the "mere expression of offensive ideas" and the State "cannot be required to wait until actual violence occurs before taking action." Buyse made reference to a survey on hate crimes conducted by the OSCE which found that violence and hate crimes often occur in the context of intolerant or racist public discourse, thus necessitating restrictions on freedom of speech to protect minorities from being the victims of violent hate crimes. Notably, in the UK, the Employment Appeal Tribunal found that denial of transgender or gender-diverse identities was not expression worthy of respect in a democratic society, and thus the firing of the employee in question was a justified restriction on freedom of expression. It was this case that led author J K Rowling to publish an essay criticised as actively attacking trans identities.
It is in cases like these that Buyse said art.17 of the ECHR comes into effect, which prevents the abuse of rights - in essence, one cannot use their right to freedom of speech to attack the rights of others to freedom from discrimination. He says that "the provision's main aim was to prevent totalitarian and extremist groups from justifying their actions by invoking the ECHR," and allows the Court to label "certain general and vehement verbal attacks against a specific ethnic group as contrary to the underlying values of the ECHR, which included 'tolerance, social peace and non-discrimination'." The inclusion of the 'abuse of rights' provision in the ECHR has allowed freedom of expression to flourish, whilst ensuring that speech that goes beyond the limits of 'necessary' for democracy (necessary for the free market-place of ideas) to be suppressed. A difficult balance, of course, but one which strives to protect both free speech and freedom from discrimination.
In the USA, there is a particular tension between freedom of speech that cuts uncomfortably across political divisions: Robert Post writes how left-wing feminists and right-wing Christians have joined together to seek regulation of pornography, abortion advocates seek to restrict political demonstrations while pro-life groups defend the right to picket, and conservative and liberal voices speak in favour of laws restricting hate speech or campaign finance reform (where monetary political donations are viewed as a form of speech). The First Amendment to the US Constitution states that "Congress shall make no law... abridging the freedom of speech" and the Supreme Court has consistently upheld this, even when it appears to be reaching its limits. The landmark case of Brandenberg v Ohio held that the government cannot punish inflammatory speech unless that speech is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." In this 1964 case, Brandenberg, a KKK leader in Ohio, spoke at a rally in favour of a march on Congress, the possibility of revengeance against Black people, Jewish people and their allies, and argued that the government was suppressing the white race. He was prosecuted under Ohio's law against criminal syndicalism (essentially, criminal acts for political purposes), but his conviction was overturned by the US Supreme Court, which established the 'imminent lawless action' test, which required that there must be (a) intent to speak, (b) imminence of lawlessness and (c) likelihood of lawlessness - a high standard to meet, and a defence of freedom of speech at the expense of protecting minorities against hate speech.
The Brandenberg test clearly protected against legal ramifications of 'cancel culture' long before such a term existed, but the modern day is less concerned with prosecution, and more concerned with silencing and ostracization. Crucially, under First Amendment law, freedom of speech is only protected from intrusion by the Government - it states that "Congress shall make no law" rather than barring individuals from suppressing freedom of speech. Eugene Scalia, a lawyer, former Secretary of Labor, and son of the conservative firebrand Justice Antonin Scalia, believes that cancel culture is most apparent at universities, where conservative speakers are "disinvited, banned, assaulted and... accused of harming students merely by expressing ideas." Such a culture poses a special threat to the legal profession, where there is a long culture of lawyers defending those with whom they disagree, and Scalia points out the representation of British soldiers charged with the Boston Massacre by founding father and future President John Adams as a key example of this. Scalia argues that progressive activists pressure law firms into not taking conservative cases, leaving these right-wing viewpoints poorly heard, and therefore the free exchange of ideas that underpins the philosophy of the First Amendment is threatened.
Coghlan agrees, pointing out that cancel culture is not merely about the acts of boycotting or cancelling, but the calls and pressure for that cancelling - it seeks to "impose speech norms using social and economic coercion, not persuasion or violence." The use of the term 'culture', Coghlan argues, alludes to the "systematic and disproportionate use of this tool by one sector of society" - namely the left - "in a way that undermines pluralism and open debate." The driving force and motivation of cancel culture isn't necessarily a bad thing: calls for cancellation tend to allege violations of the core value of equality, particularly against long-oppressed minorities, and by using social pressures, rather than the law, to achieve the goal of equality, cancel culture bolsters the 'free marketplace of ideas'. Cancel culture advocates believe that by silencing oppressive voices (or, perhaps more appropriately, calling for their silencing), minority voices can be heard, thus enforcing freedom of speech for all. The US Supreme Court itself has defended 'cancel culture' in the case of NAACP v Claiborne Hardware, when they held that speech promoting a boycott of white businesses was protected by the First Amendment even though it "may embarrass others or coerce them into action." The unanimous opinion stated that "one of the foundations of our society is the right of individuals to combine with other persons in pursuit of a common goal by lawful means." Not only this, but the boycott aimed to achieve the state-sanctioned value of "rights of equality and freedom." The same US Court that defended the right of a KKK leader to call for violence against Black Americans found itself defending the right of Black Americans to boycott white businesses.
Was this a reversal of their previous decision in Brandenberg and a subsequent embrace of the Black agenda, or was this the application of the same reasoning: that speech is protected, regardless of whom it offends? Regardless, Coghlan believes that cancel culture, while not legal in its aims, still poses a threat to freedom of expression, indeed perhaps more of a threat than legal recourse would be, as cancel culture provides no due process or other protections, and he argues that the reference to "state-sanctioned values" in Claiborne Hardware is particularly suspect when considering that free speech exists to protect minority expression - indeed, two centuries prior to this decision, slavery and white supremacy were state-sanctioned values. Indeed, Duque et al go further, and assign some blame for mass shootings, particularly the Parkland Shooting in 2018, to 'cancel culture', for giving active shooters a motive to carry out their crimes: a defence of their own belief system they view as under attack.
Is cancel culture harming society so much, as Coghlan and Duque believe? I don't think so. Duque falls into the same trap as those who argued against Brandenberg, and the broad and disparate voices of the 'cancel culture' movement cannot, in any way, meet the Brandenberg test for incitement to violence, and while Coghlan's arguments have some merit, his proposals for the law to 'set the tone' of discourse, respond to cancel culture with defamation and harassment lawsuits, and providing a legal counterbalance to the calls to cancel unpopular speakers, are largely superfluous. The law, throughout the world, largely protects freedom of speech and, through not prohibiting anything but the most extreme expression, sets the standard for what is and is not legally acceptable, and it is a powerful, perhaps even vindicating argument for 'cancelled' individuals to show their speech, while unpopular, is legal and proper.
While I may not be able to call 'fire' in a crowded theatre without facing legal consequences, I am allowed to speak false statements, unpopular ones, or controversial ones without jeopardising my freedom or rights, but that doesn't stop others from being able to criticise me. We can argue the societal merits of cancel culture, and the silencing of minority voices is a real and important issue, the law cannot be used as a substitute to bolster unpopular opinions - no duty should be placed on individuals to listen as much as no duty should be placed on individuals to speak. A study by Henson and Denker found that, in university classrooms, the perceived political leanings of the instructor influenced the perceptions of 'silencing' (in essence, if a student disagreed with what they thought the instructor believed, they were more likely to consider themselves to have been silenced), but no legal duty can, or should, be placed on the students who believe they are being silenced to speak, simply to bolster our own conceptions of the free marketplace of ideas. We can agree that if the student did speak, and a rational, thoughtful and robust debate ensued, this would be of benefit to everyone, but we can no more demand speech than we can demand silence. Conservative voices, who view themselves to be the principal victims of cancel culture, can decide for themselves the merits of speaking out on unpopular issues, and there is no reason for anyone else to agree with them. So long as their rights are intact, the law should allow culture to work for itself.
The opinions of this article are solely those of the author and are not intended to provide accurate legal advice for anyone to rely on. While the content is intended to be factually correct, the author does not accept any responsibility or liability arising from the use or misuse of this article or any loss/inconvenience/damage stemming from this. Legal advice should be sought from a qualified professional, not this blog. The opinions represented in this blog are personal and belong solely to the blog owner, and do not represent those of the people, institutions, or organisations that the owner may or may not be associated with in a professional or personal capacity, unless explicitly stated. The views expressed by any podcast guest are their own entirely, and do not necessarily reflect those of the blog owner. The blog owner is not responsible and liable for any discrepancy, if any. Any content provided by this blog or its companion podcast is not intended to malign any religion, ethnic group, club, organisation, company, individual, or anyone or anything.
Sources:
- Redmond-Bate v DPP [1999] EWHC 733 (Admin).
- Brandenberg v Ohio 395 US 444 (1969).
- Robert C Post, 'Censorship and silencing' [1998] 51 Bulletin of the American Academy of Arts and Sciences 5.
- Eugene Scalia, John Adams, Legal Representation and the 'Cancel Culture' (2019) Federalist Society Address.
- Niall Coghlan, Are our laws on freedom of speech fit for purpose in the age of 'cancel culture'?
- Richard B Duque, Robert Rivera, and E J LeBlanc, 'The Active Shooter paradox: Why the rise of Cancel Culture, "Me Too", ANTIFA and Black Lives Matter... matters" (2020) Aggression and Violent Behaviour
- Jayne R Henson and Katherine J Denker 'Political differences and perceptions of silencing in university classrooms' (2009) 26 Communication Research Reports 3
- Paul Sturges 'Limits to freedom of expression? Considerations arising from the Danish Cartoons affair' (2006) 32 IFLA Journal 181
- Antoine Buyse, 'Dangerous Expressions; the ECHR, Violence and Free Speech' (2014) 63 International and Comparative Law Quarterly 491
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