In an age of cancel culture, it's perhaps fitting that the death of a free speech hero would receive little fanfare. So when the poet, publisher, and provocateur Lawrence Ferlinghetti shuffled off this mortal coil in February at the grand old age of 101, there were dutiful obituaries in The New York Times and elsewhere but the respects were hardly commensurate with the debt owed the man. By publishing Allen Ginsberg's fuck-filled poem Howl in 1956, Ferlinghetti risked jail and financial ruin—and did as much as any single individual to end not just government censorship but a stultifyingly repressive American intellectual culture. When Ferlinghetti was hauled into court, legitimate U.S. publishers wouldn't touch books such as Lady Chatterley's Lover and Tropic of Cancer for fear of being charged with obscenity. He helped create the period of increasingly free and open expression that moral scolds, increasingly in the name of progressive visions of "anti-racism," are challenging today.
The obits reported that Ferlinghetti, who skippered a submarine chaser during World War II and returned from service an ardent pacifist, died of interstitial lung disease. But on a mythopoetic level, I prefer to think that he gave up the ghost because he knew his brand of free expression was no longer welcome in the country for which he fought so bravely in wartime and peacetime. "I am signaling you through the flames," he wrote in "Poetry as Insurgent Art," one of his later works. "You can conquer the conquerors with words." Not if words themselves are the problem.
How should defenders of free speech think about "cancel culture," that hotly contested yet vague concept that defines the current moment like flappers and bathtub gin defined the 1920s, communist scares and juvenile delinquency defined the 1950s, and leisure suits and encounter groups defined the 1970s? Author Jonathan Rauch distinguishes canceling from mere criticism in that its practitioners seek "to organize and manipulate the social or media environment in order to isolate, deplatform or intimidate ideological opponents." Cancel culture isn't about seeking truth, he writes; it's "about shaping the information battlefield" in order to "coerce conformity and reduce the scope for forms of criticism that are not sanctioned by the prevailing consensus of some local majority."
Somebody calling you a jackass on Twitter is criticism. Somebody organizing a mob to get you kicked off of Twitter, fired from your job, and put out on a figurative ice floe is cancel culture. Former President Donald Trump, himself a target of social media cancellation, exemplified cancel culture in 2018 when he called on the NFL to fire players who took a knee during the playing of the national anthem and mused aloud about deporting truculent athletes too. "You have to stand proudly for the national anthem, or you shouldn't be playing, you shouldn't be there," he told Fox & Friends. "Maybe you shouldn't be in the country." At a 2017 rally, he told a crowd that he'd "love to see one of these NFL owners, when someone disrespects our flag to say, 'get that son of a bitch off the field right now. Out. He's fired. He's fired.'"
Cancel culture operates on at least three different levels: the personal, the corporate, and the political. Each is more troubling than the next, because each casts a broader net and eliminates more and more options. It's one thing for me to cancel my Twitter account after being attacked as morally obtuse, worse to be permanently kicked off the site because its moderators have decided I am beyond redemption, and more troubling still to have the government shut down Twitter because it allowed my awful speech.
It's tempting to single out that last level because the other two involve individuals or private entities who ultimately should be free to do whatever they want. Only the government can engage in true censorship, surely. But the three layers work synergistically to increase the cultural and political regulation of thought and expression. To build as free and open a society as possible, we need to challenge the precepts of cancel culture at all levels.
Self-cancellations, in which individuals take the initiative to put themselves out of the public's misery, are in many ways the purest manifestation of cancel culture, because they reveal the religious-cum-totalitarian sensibility undergirding the process. From the Spanish Inquisition through Mao's struggle sessions, it wasn't enough simply to damn the accused. The goal was to make them testify to their moral and ideological failings, to show they were "doing the work" and owning their sins.
This move was on display when the banjoist for the fading hipster-retro band Mumford & Sons announced in March that he "was taking time away from the band to examine [his] blindspots" after he unforgivably endorsed a book that purports to unmask "antifa's radical plan to destroy democracy." Winston Marshall's crime was to tweet "Finally had the time to read your important book. You're a brave man" at the controversial journalist Andy Ngo, whose Unmasked spent time on the New York Times bestseller list and is still available for purchase at Amazon, the new arbiter of what is and isn't hate speech. "I have offended not only a lot of people I don't know," wrote Marshall, "but also those closest to me, including my bandmates and for that I am truly sorry." I'll come back to Marshall, who announced in June that he was leaving Mumford & Sons for good. For now, let's just note that when he apologized for his wrongthink, he felt a need to insist he was not just sorry, but truly sorry.
Around the same time as Marshall was doing the work of owning his sins, the estate of Dr. Seuss announced it was ceasing publication of a half-dozen of the author's lesser-known works because they "portray people in ways that are hurtful and wrong." For the first time since 1937, when Seuss first published And To Think That I Saw It on Mulberry Street, with its depiction of a yellow-skinned, pigtail-wearing "Chinaman who eats with sticks," we could all sleep better knowing that McElligot's Pool, The Cat's Quizzer, and other titles so obscure they "haven't sold in years through the retailers BookScan tracks," according to The New York Times, would be even more completely ignored. And To Think That I Saw It On Mulberry Street, the canceled volume people are most likely to have heard of, sold about 5,000 copies last year, compared to 513,000 for Seuss' better-known Oh, The Places You'll Go!
Then there was the case of The Test Kitchen, a Gimlet Media podcast that self-exploded faster than a SpaceX rocket while aiming to expose a grotesquely racially toxic workplace at the Condé Nast magazine Bon Appétit. The series was so woke that its host, Sruthi Pinnamaneni, explained to listeners that while she had talked with white supervisors at Bon Appétit while reporting the story, she wouldn't deign to air their privileged voices. But the podcasters themselves were canceled just two episodes in for supposedly creating a "toxic dynamic" at their own workplace—one that a former employee said was "near identical" to the reportedly white supremacist one they were exposing at Condé Nast. Pinnamaneni's white boss, the studiously politically correct A.J. Vogt, copped to failing to sufficiently support a unionization effort "largely led by young producers of color" and "asked for the team's permission to step away." (It was graciously granted and he departed.) Though herself an ethnic minority, Pinnamaneni resigned after confessing publicly she "did not pay enough attention to the people of color at Gimlet with less power and I should have used my power to support and elevate them further."
And then there was the curious case of Captain Underpants, the popular gross-out series for kids, which topped the American Library Association's annual list of "most challenged" titles in 2012 and 2013 and still regularly makes the top 10 for "offensive language" and "violence." The publisher and author abjectly apologized for a different book, called The Adventures of Ook and Gluk: Kung-Fu Cavemen from the Future, because it "perpetuates passive racism." "We are deeply sorry for this serious mistake," read the joint statement from Scholastic Books and Dav Pilkey, who further begged his readers, like a repentant, drunken murderer issuing his last words on the gallows, to "forgive me, and learn from my mistake that even unintentional and passive stereotypes and racism is [sic] harmful to everyone."
This is life today in these United States, where a seemingly infinite supply of such incidents appears on a seemingly hourly basis, like automated bursts of super-concentrated air freshener in airport bathrooms. They are furiously discussed and disputed on MSNBC and Fox News and even in the halls of Congress, and then are forgotten as promptly and completely as the Great Murder Hornet Scare of 10 minutes ago. It's cancel culture as Doritos, junk-food snacks we wolf down even as they make us feel guilty, a little queasy, and still hungry. As Jay Leno once counseled, "Crunch all you want, we'll make more."
Such self-cancellation episodes are often funny. Not always, of course, as in the case of Neil Golightly, a communications executive at Boeing who resigned his position after his 1987 article opposed to letting women fight in combat reappeared like a deadly old girlfriend in a Robert Mitchum film noir. He was 29 years old when the offending article was published, and he had reversed his position decades before he joined Boeing. That's not in the least funny, but only someone with a heart of stone could fail to laugh when the people responsible for the Test Kitchen podcast were hoisted on their own petard. The good news is that these things are usually more The Chocolate War than Lord of the Flies. No literal blood is spilled when Teen Vogue, a hyper-woke publication that toggles between gushing profiles of Karl Marx and guides to anal sex, fires its incoming editor in chief, a 27-year-old African American, for having made insensitive tweets about Asian Americans and gay people when she was herself a teen.
Yet these cancellations reveal something profoundly depressing about the state of discourse in our society. It's one thing to cop to mistakes in judgment, behavior, and belief, take your lumps, and disappear for at least a long weekend (as did social media celebrity Chrissy Teigen after being revealed as an online troll who at one point urged a 16-year-old girl to commit suicide). It's another to figuratively don a dunce cap like a victim in China's Cultural Revolution, get pushed down the virtual street by an online throng, and beg forgiveness from total strangers (a lot of people I don't know) while employing intensifier words (to be deeply sorry for serious mistakes) that work only to call into question the speaker's integrity. If you're truly sorry this time around, it suggests you were faking it all those other times you said it before. Such rhetoric smacks of a hostage who will tell captors anything to avoid torture or be set free, of a schoolkid in detention running through every act of contrition he can recall, of a Manson Family member trying to hit the right combination of verbiage and sad-sack visage in front of the parole board.
If the stakes in any given self-cancellation episode are vanishingly small in the grand scheme of things, the overall effect is not. Each new case drains another drop of blood from a body politic that's already bone-dry from a thousand cuts.
The incidents are also distracting from more serious threats to freedom of expression, particularly the continuous narrowing of acceptable discourse on social media platforms such as Twitter and Facebook and shopping platforms such as Amazon and eBay. After the Dr. Seuss Foundation made its announcement, for instance, Amazon and eBay quickly banned sales of used copies of the canceled Seuss books, the sort of prohibition more commonly applied to Nazi memoribilia. What kind of simulation are we living in where Mein Kampf is easier to purchase than McElligot's Pool?
Last fall, mere weeks before the election, both Twitter and Facebook suppressed a controversial New York Post story about then-candidate Joe Biden and his son Hunter's business dealings. That is disturbing, even if the ensuing publicity about the action led more people to read the story than might have otherwise. This year each site issued permanent bans on Trump, citing continuous breaches of their terms of service. In February, Amazon banned When Harry Became Sally (Encounter Books), a 2018 book critical of the transgender movement. In an act that can be charitably characterized as bullying, four Republican senators demanded to know Amazon's thinking. "We carefully consider the content we make available in our stores, and we review our approach regularly," Amazon responded. "We have chosen not to sell books that frame LGBTQ+ identity as a mental illness."
From a strict libertarian perspective, such decisions don't violate anyone's rights. In fact, they illustrate the exercise of them. Private individuals and businesses should have broad—some would say limitless—discretion on how they conduct their affairs, especially those related to voluntary association. Part of Amazon's defense is the simple, elegant declaration that "we reserve the right not to sell certain content. All retailers make decisions about what selection they choose to offer, as do we." And they do have every right to do that. Yet such decisions are eminently open to criticism from customers too, and not simply because Amazon once aspired to sell every book in print. Internet platforms that prided themselves on vastly expanding the marketplace of ideas (and consumer goods such as books) are now narrowing it instead.
This trend toward suppression is not lost on progressives, at least not older ones, such as Glenn Greenwald, Matt Taibbi, and Thomas Frank, all of whom are over 50 and increasingly find themselves at odds with a woke left that has little use for hosannas about free speech and that valorizes ethnic identity over class struggle. "In liberal circles these days there is a palpable horror of the uncurated world, of thought spaces flourishing outside the consensus, of unauthorized voices blabbing freely in some arena where there is no moderator to whom someone might be turned in," writes Frank, whose 2004 volume What's The Matter With Kansas? became the bible for left-wingers desperate to rescue the country from George W. Bush, Dick Cheney, and neoliberalism. Mocking a call in The New York Times for a "reality czar" who would help end the spread of "misinformation," Frank concludes acidly: "The remedy for bad speech, we now believe, is not more speech, as per Justice Brandeis's famous formula, but an 'extremism expert' shushing the world."
When they are not simply asserting a naked will to power, progressives trying to shut down speech often employ bad-faith arguments. Over the past few years, whenever Twitter or Facebook or YouTube or whatever platform banned an account for politically correct reasons, people on the left would cynically invoke the libertarian property rights argument they rejected when, say, reactionary religious bakers refused to decorate same-sex wedding cakes. The same people who would not only force a baker to "bake the damn cake" but assign him to mandatory sensitivity training suddenly started sounding like Murray Rothbard on Viagra when it came to voluntary association. If you don't like Twitter or Facebook or YouTube, goes this line of eminently reasonable argumentation, go build your own.
But when some admittedly tech-challenged conservatives did just that, by launching a new platform called Parler, Amazon Web Services stopped hosting it, and Apple and Google refused to carry the app version in their online stores, sometimes citing technical issues but mostly because they believed the service tolerated, as an Apple statement put it, "threats of violence and illegal activity [and had] not taken adequate measures to address the proliferation of these threats to people's safety." The right-wingers behind Parler had basically built their own Twitter, and the major players in the internet—well within their rights, to be sure—did what they could to cut off access, to try to exile the new platform to the far quadrants of cyberspace, where no one can hear you scream about stopping the steal, Hunter Biden's crack binges, or Chinese lab-engineered viruses. After several weeks of controversy and changes to some of its technical and content-moderation policies, Parler found a new web host and was readmitted to Apple's App Store, though as of this writing it has yet to be reinstated at Google's Play Store.
Progressives hardly have a monopoly on self-righteous, bad-faith calls for cancellation using market forces and social media. As befits a champion college debater, Sen. Ted Cruz (R–Texas) is always ready, willing, and able to defend any side of a conflict with equal verve, passion, and seeming commitment to principle. In 2019, Nike withdrew its Air Max 1 Quick Strike Fourth of July sneaker, which featured the iconic 13-star flag designed by Betsy Ross, from the market after critics claimed the design glorified an era in which slavery was practiced (yes, really). Cruz called for a boycott of Nike, tweeting "I respect Free Speech & I'm exerting mine: until @Nike ends its contempt for those values, I WILL NO LONGER PURCHASE NIKE PRODUCTS. #WalkAwayFromNike RT if you agree." A year later, when left-wingers called for a boycott of Goya products after the company's CEO praised Trump, Cruz leapt into the fray, saying such an action was nothing less than an attempt "to cancel Hispanic culture and silence free speech."
Again, none of this violates the letter of any laws, especially libertarian ones, but it's deeply worrying, especially for those of us who are ancient enough to remember the rise of cyberspace as a new and exciting landscape of ALL CAPS flame wars, loudmouthed argumentation, and promiscuous ideological mixing. "We are creating a world where anyone, anywhere may express his or her beliefs, no matter how singular, without fear of being coerced into silence or conformity," declared the late techno-optimist John Perry Barlow in his "Declaration of the Independence of Cyberspace," which, though written only 25 years ago, in many ways seems more archaic than the 1776 text that inspired it. "In our world," he crowed, "all the sentiments and expressions of humanity, from the debasing to the angelic, are parts of a seamless whole, the global conversation of bits. We cannot separate the air that chokes from the air upon which wings beat." These days, it sometimes feels like all the major platforms are working to purify the air of any thought pollution.
Indeed, in June, the combination of bots and humans patrolling YouTube for "medical misinformation" saw fit to remove a 16-month-old Reason video about DIY biohackers who were trying to come up with homegrown COVID-19 vaccines at a time when mainstream experts were saying cures might take as long as five years to develop and deliver. The video, wrote its producer, Zach Weissmueller, "remains a snapshot of an early longshot effort to prepare for a frightening and uncertain pandemic, and it continues to raise questions about whether the future of science needs to be as centrally managed as it has been for the past century. It's a factual report, not misinformation." Well, not according to YouTube, which took it down and rejected Reason's appeal. The video remains up at Facebook, where it apparently hasn't provoked the site's overseers, and at our own website, whose content we control.
As stupid, dictatorial, and unthinking as they can be, the ideological HEPA filters at Amazon, Facebook, Google, Twitter, and elsewhere are not the worst part of today's marketplace of ideas. They pale in comparison to—and distract scarce attention from—the fact that government actors at all levels are marching on free speech, and free enterprise, like Birnam Wood on Dunsinane, poorly disguised but seemingly impossible to stop.
In March—almost a year to the day after Louisville police officers killed Breonna Taylor during a monstrous, indefensible raid on her home—the Republican-majority Kentucky Senate passed a bill that makes it a crime to insult and taunt cops. Under its language, you could get three months in jail and a $250 fine for flipping off the fuzz in a way "that would have a direct tendency to provoke a violent response from the perspective of a reasonable and prudent person." The journey from the police killing an innocent emergency room technician to legislation limiting a police-violence protester's ability to tell cops to go fuck themselves is a strange one and almost as deeply offensive as Taylor's execution. The bill stalled in the Bluegrass State's lower chamber, due to outrage not just at its content but at its timing.
It's just one of a slew of new or proposed laws that would chill free speech as we fret or laugh over the fate of banjoists and old books hidden in plain sight among millions of others on the cybershelves of online retailers. Freethinkers are rightly outraged when private platforms crack down on speech for political reasons, but the much graver threat always comes from governments seeking to ban or compel speech, often in the guise of securing privacy rights or "fair" competition. According to a May New York Times tally, lawmakers in at least 38 states "have introduced more than 100 bills to protect people's data privacy, regulate speech policies and encourage tech competition." Even the bills that don't directly deal with speech policies aim to regulate platforms' business models and ultimately their content.
Put slightly differently: I think it's stupid Amazon won't stock When Harry Became Sally, but its author and publisher can still hawk it at Barnes & Noble, at the publisher's own site, and at the author's. When the government says you can't do something, by contrast, where else are you going to go?
Even before they desecrated the memory of Breonna Taylor, lawmakers in Kentucky introduced legislation this year that "would make a user entitled to damages if a social media platform deletes or 'censors' religious or political posts." Conservatives who endorse such bills, like the progressives against whom they define themselves, are engaging in bad-faith arguments they reject in other circumstances. They are more than happy to tell people how to run their business when the desired outcome suits them.
Similar legislation has been proposed in Oklahoma, North Dakota, and Texas, where Republican Gov. Greg Abbott averred, without citing anything approaching actual evidence, that conservative viewpoints are being systematically silenced. "Pretty soon," he promised this year, such social media policies are "going to be against the law in the state of Texas." That law, S.B. 12, easily passed in the state Senate before dying in the lower chamber in May.
That same month in Florida, Republican Gov. Ron DeSantis signed legislation that banned Twitter, Facebook, and other social media platforms from suspending or moderating the accounts of political candidates. (The one exception was for messages deemed "obscene.") In a nod to the squelching of the New York Post's pre-election story about Hunter Biden trading on his father's name, the law also banned blocking information about a candidate and prohibited flagging posts by a "journalistic enterprise" as unverified or sketchy. Offenders would face fines of up to $250,000 a day, and regular users would be able to sue platforms if they feel they've been treated unfairly. The law was set to take effect on July 1 but was struck down by Judge Robert L. Hinkle of the U.S. District Court for the Northern District of Florida, who wrote, "The legislation compels providers to host speech that violates their standards—speech they otherwise would not host—and forbids providers from speaking as they otherwise would."
Back in the pre-internet days, you could count on conservative Republicans to shriek about the alleged need to regulate sex and drugs on cable TV and in music, but these days they seem to want social media companies to do no moderating of content. (Maybe we should just take progress where we find it, put it quietly in our pocket like a $20 bill found on the ground, and walk on by.)
At the same time, liberal Democrats, who themselves used to scream about violent video games and cable TV programming, are pushing for more regulation of speech they don't like. In Colorado, a proposed law (Senate Bill 132) would create a "digital communications commission" that would force online providers to register with the state and investigate platforms to make sure they don't allow "hate speech," "undermine election integrity," or "disseminate intentional disinformation, conspiracy theories, or fake news"—vague terms that lawmakers can't even be bothered to define in the legislation. The commission would have the ability to order changes in the way platforms operate. After advancing out of a minor committee, the bill fell apart; its sponsors are now rewriting the proposal.
At the national level, two congressional Democrats—Rep. Anna Eshoo (D–Calif.) and Rep. Jerry McNerney (D–Calif.)—have sent letters to the heads of Comcast, Verizon, Dish, and other cable and satellite companies demanding to know why such private services dare carry Fox News, Newsmax, and other supposed purveyors of "misinformation." As Reason's Robby Soave put it, sending the letter "was an act of intimidation." So was the letter by Sens. Marco Rubio (R–Fla.), Josh Hawley (R–Mo.), Mike Braun (R–Ind.), and Mike Lee (R–Utah) to Amazon demanding answers about why the company declined to sell When Harry Became Sally. "In its decision to remove Mr. Anderson's book from its platforms, Amazon has openly signaled to conservative Americans that their views are not welcome on its platforms," the supposed small-government conservatives wrote. Since when should a company's decisions on what to stock on its shelves be a matter for politicians?
Those letters came just a few weeks before the latest round of House hearings about all things internet. Over Zoom, the heads of Facebook, Twitter, and Google (which is already being sued by the federal government and 11 states on antitrust grounds) were ritualistically taken to the woodshed for facilitating the January 6 riot; for allowing too much hate speech or using hate speech as a pretext for deplatforming people; for allowing too much or too little information, misinformation, and disinformation about voting, COVID-19, global warming, and more.
CEOs such as Mark Zuckerberg, Jack Dorsey, and Sundar Pichai are by now old hands at such show trials. Going back to at least 2018, all three have called for their own industry to be regulated, which inevitably means suppressing speech. In 2018, Zuck was musing on CNN that "the question is more what is the right regulation rather than 'Yes or no, should we be regulated?'"
The tenor of the hearings—and the larger mood in Washington—was summed up in a statement by Rep. Mike Doyle (D–Pa.): "The power of this technology is awesome and terrifying, and each of you has failed to protect your users and the world from the worst consequences of your creations." The main point of the proceedings, offered The Washington Post, was to make plain "just how deep the desire in Washington goes to change how social media companies operate." After getting into a Twitter spat with Amazon's P.R. account, Sen. Elizabeth Warren (D–Mass.) even vowed to "fight to break up Big Tech so you're not powerful enough to heckle senators with snotty tweets."
When not threatening to regulate content per se, federal lawmakers in both parties are pushing a series of antitrust actions against tech giants. A half-dozen proposals at various stages of progress would restrict the ability of large platforms (usually defined as those having over 500,000 monthly active users or a $600 billion market cap) to sell and promote house brands (such as Amazon Basics or even Amazon's streaming video), mandate data portability, or restructure privacy settings. That the Federal Trade Commission just lost an antitrust action against Facebook—a federal district court ruled the agency had failed to establish Facebook actually has a monopoly in "personal networking services"—is an encouraging sign that the courts will at least slow momentum for regulation.
But the threats will keep coming, because politicians of all stripes want to control speech in ways that favor their agendas. And they are drawing strength from the broader cancel culture that defines the current moment. Individuals are self-canceling, corporations and platforms are purifying their offerings, so why wouldn't politicians push in the same direction?
At the moment, progressives broadly believe that there is not enough moderation of content going on, while conservatives tend to think too much of the same is happening. This disagreement is less likely to end in stalemate than it is in some sort of heavy-handed regulation that will give each side something to cheer. Just as Republicans and Democrats always manage to overcome their differences to spend more and more money, they certainly can come together to make it easier to squelch speech that they find annoying, even if their reasons for being annoyed are diametrically opposed.
Laws seeking to control individuals and platforms have fared poorly in the courts, because the First Amendment makes it hard to compel or suppress the speech of private actors and because Section 230 of the Communications Decency Act allows companies broad discretion in how they moderate online platforms. But Section 230, the law that allows online platforms, websites, and services to moderate content as they see fit and protects them from liability for most user-generated speech, is in everyone's crosshairs. At March's hearings, Facebook's Zuckerberg showed up with plans to revise Section 230 that would require platforms to act more quickly and transparently to remove "clearly illegal" content, including incendiary language and calls for violence. "It's time for updated internet regulations," intones a series of online and TV ads Facebook is running. "The internet has changed a lot in 25 years. But the last time comprehensive internet regulations were passed was in 1996. We want updated internet regulations to set clear guidelines for addressing today's toughest challenges."
The minute the conversation gets concrete, of course, the harder it becomes to create rules that clearly articulate what is permissible. The real goal here is for the government and the corporations to come to some sort of workable truce. "We are ready to work with you to move beyond hearings and get started on real reform," Zuckerberg told the lawmakers. The other CEOs didn't disagree. Why would they? If they can minimize political risks while locking in their current market positions, who's going to complain? As Zuck explained to Congress in 2018, "When you add more rules that companies need to follow, that's something that a larger company like ours inherently just has the resources to go do, and that just might be harder for a smaller company getting started to be able to comply with."
There are also indications that a judicial shift toward speech restrictions may be in the offing. Going back to the 1960s, the Supreme Court has been generally solid in expanding all speech rights, whether the case had to do with publishing supposed obscenity, striking down campaign finance laws that limited political expression, or nullifying virtually all of the 1996 Communications Decency Act, which would have effectively regulated online speech like speech on broadcast radio or TV.
But it's also true that the Supreme Court follows broad sentiments in politics and culture rather than standing athwart them. As the legal scholar Mark Tushnet once told me, the Court may be slightly ahead or behind of where society is headed, but "10 years down the line, the society's going to be pretty much where it would've been even if the courts hadn't said a word about it."
So it's worrying that in a recent case involving then–President Trump blocking followers on Twitter, Justice Clarence Thomas argued that the dominant social media platforms function as monopolies and thus should be treated as common carriers that can be forced to carry content they otherwise would not. Just as phone companies couldn't pick and choose who could and couldn't make a call on their systems, goes this line of thinking, Facebook or Twitter shouldn't be allowed to decide who gets to talk on their platforms. "That these companies have no comparable competitors highlights that the industries may have substantial barriers to entry," he wrote, making the case for stripping them of the right to run their businesses as they see fit. Thomas is usually a strong proponent of limiting government power, so this shift is worrisome.
As the Competitive Enterprise Institute's Jessica Melugin has noted, established platforms are actually "constantly having to compete with new market entries. Examples include Snapchat, Clubhouse, TikTok, and many more." And legal scholar Jeff Kosseff, author of a book on Section 230 called The Twenty-Six Words That Created the Internet, told NPR that platforms have fairly inviolable First Amendment rights to refuse speech they don't want. But he added that Thomas' remarks are "an invitation for plaintiffs' lawyers to bring cases challenging Section 230….And I would not be surprised if we would start seeing more states passing laws that attempt to regulate content moderation." Indeed, if Florida, Texas, Colorado, and other states are any indication, that's already happening. Thomas' reasoning is faulty on both empirical and legal grounds, but that may not matter, especially in this cancel-culture climate.
Voice and Exit
"Capitalists will sell us the rope we hang them with," goes a saying variously attributed to Marx, Lenin, and Stalin. A variant aimed at libertarians is that by supporting the rights of Big Tech platforms to ban and deplatform anyone who isn't some sort of woke paragon, we are defending the very people and systems that will make it impossible for us to continue to argue for free speech. That's hyperbolic and paranoid. If you think Twitter sucks when Jack Dorsey runs it, just wait until Nancy Pelosi and Chuck Schumer (or Kevin McCarthy and Mitch McConnell) are calling the shots.
The solution to the current situation is, I think, found in Exit, Voice, and Loyalty, Albert O. Hirschman's 1970 treatise on "responses to declines in firms, organizations, and states." Hirschman discusses the different ways individuals can effect change. Sucking it up and becoming an uncritical organization man (loyalty) is one option that doesn't seem particularly attractive. Leaving to go elsewhere—exit—is the option John Perry Barlow limned so well back in 1996. You see it in the emergence of platforms such as Substack, Patreon, and Locals (a creator-content system that is far more decentralized than the other two). At the recent Bitcoin 2021 conference in Miami, Dorsey himself said that he understood why people were upset by Twitter's moderation policies. He invoked the decentralized, peer-to-peer architecture that undergirds bitcoin to talk about new payment and messaging systems he is developing. "We're trying to do the same thing with Twitter, by creating a new platform, a new open-source standard called Blue Sky," he said. "It will have none of the restrictions that you see on Twitter. Inspired entirely by Bitcoin. We want to do the same thing for social media." Only time will tell if such claims are mere vaporware. "I know you aren't going to believe me," he said. "I know you're saying 'liar.' I'm going to prove it to you. And then we can have another conversation later."
Mumford & Sons' Winston Marshall chose a different form of exit a few months after his Twitter apology. In an essay on Medium, he announced he was leaving the band: "I've had plenty of abuse over the years. I'm a banjo player after all," he wrote. "But this was another level." He explained that his comment had "unleashed a black-hearted swarm" of hate on his bandmates and he seriously considered the notion that he had done something truly horrible. Ultimately, though, he felt a need to be true to his own vision of reality: "The truth is that my commenting on a book that documents the extreme Far-Left and their activities is in no way an endorsement of the equally repugnant Far-Right. The truth is that reporting on extremism at the great risk of endangering oneself is unquestionably brave. I also feel that my previous apology in a small way participates in the lie that such extremism does not exist, or worse, is a force for good." In taking back his self-cancellation, he strikes a blow, however small, for some measure of honesty and integrity in public discussions, even as he likely faces a future of relative anonymity.
Complaining and working to change the system (voice) is also a powerful strategy, both in politics and in dealing with online platforms. We should loudly criticize platforms for kicking people off in arbitrary ways that diminish our ability to freely argue and disagree about politics and culture. We want more participation across the board, not less, even if we believe that businesses can rightly restrict expression however they see fit. We all need to make our presence known, both at platforms and in elections, as supporters of maximal free speech. That means we need to push the case for free expression not just when the government comes for our rights but when private companies delete content and individuals start flagellating themselves like devout Catholics in the Philippines on Good Friday.
Speaking of Catholicism, we would do well to celebrate free speech saints and martyrs, creating a pantheon of heroes we can turn to for inspiration and guidance, if not divine intervention. Lawrence Ferlinghetti is one such saint. So is Frank Kameny, another World War II veteran who, like Ferlinghetti, fought not just literal Nazis but American hostility to open expression.
Kameny lost his job with the U.S. Army Map Service because he was gay. He exhausted legal proceedings to get his job back and, in the early 1960s, led some of the country's first public demonstrations for gay rights, marching in front of the White House and Independence Hall, holding signs that read "Denial of equality of opportunity is immoral" and "Private consenting sexual conduct by adults is NOT the government's concern," among other slogans. Kameny was a staunch opponent of restricting speech, even the hate speech that was regularly launched in his direction. He wrote, in a court brief that failed to get the Supreme Court to let gay people work for the federal civil service, "petitioner did not hesitate to fight the Germans, with bullets, in order to help preserve his rights and freedoms and liberties, and those of others. In 1960, it is ironically necessary that he fight the Americans, with words, in order to preserve, against a tyrannical government, some of those same rights, freedoms and liberties, for himself and others."
Kameny's story had a happy ending. By the time he died in 2011, he had received an official apology from the federal government for being fired and, far more important, he had seen enormous legal and cultural progress for gays and lesbians, virtually all of it gained via robust public debate rather than shutting down discourse.
Contemporary cancel culture can take on left and right flavorings, and it can be enforced by governments, corporations, or individuals. But it all works to reduce our ability not just to talk freely but to live freely. And that is reason enough to contest it at every level.