The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Volokh Conspiracy

On Cancel Culture and Civil Liberties

Cancel Culture is on the rise, it needs to stop if we are to preserve a free society.


There have been a series of recent incidents in which individuals who offended one or more members of the far left have been "canceled," i.e., social media mobs have attacked them until they lost their livelihoods. On a scale of egregiousness, let's say it ranges from James Bennett of the New York Times, forced to resign for publishing a controversial op-ed by a U.S. Senator,  as a "1" to Emmanuel Cafferty, a Mexican-American blue collar worker who lost his "dream job" after a Twitter witch-hunter falsely accused him of flashing a white power gesture at a BLM rally, as a "10."

I suspect the vast majority of us, on all points of the political spectrum, don't want to live in a society where Twitter Stasi are constantly looking for wrongthink to report to one's employer; and in the long-run, cancel culture is bound to move from private channels to the government. So the following paragraphs with which I concluded my 2003 book, You Can't Say That! were not exactly about "cancel culture" which wasn't a thing then, but are close enough to be quite relevant:

Finally, if civil liberties are to be preserved Americans will need to both develop thicker skin, and to expect other to be reasonably thick-skinned. A society that has a legal system that expects such thick skin is likely to get it. On the other hand, if the legal system gives people a legal remedy for insult, they are more likely to feel insulted. This is true for two reasons. First, as economists point out, if you subsidize something, you get more of it. If the legal remedies of antidiscrimination law, particularly monetary remedies, subsidize feelings of outrage and insult, we will get more feelings of outrage and insult, a net social loss. Economists have also noted the psychological endowment effect: once people are endowed with a right, they lose far more utility once that right is interfered with than if it had never been granted at all.

Unfortunately, Americans increasingly increasingly coddle and even reward the hypersensitive, perversely encouraging more people to be hypersensitive. In one notorious incident, a Washington, D.C. official, was forced to resign for using the word "niggardly" at a meeting because the word sounded like a racial epithet, even though it is not (it's a synonym, of Scandinavian origin, for "miserly"). It should hardly be surprising, then, that people are suing and winning damages when offended at work, when excluded by a private club or turned down as a roommate, or for being fired from a church-run school after refusing to obey church doctrine.

Yet preserving liberalism, and the civil liberties that go with it, requires a certain level of virtue by the citizenry. Among those necessary virtues is tolerance of those who intentionally or unintentionally offend, and sometimes, when civil liberties are implicated, who blatantly discriminate. A society that puts equality—in terms of the enforcement of draconian enforcement of antidiscrimination laws to alleviate every slight—ahead of civil liberties will end up with neither equality nor civil liberties. The violation of civil liberties to achieve equality will eat away at all constitutional restraints on the government, and the additional power garnered by the government, introduced for good purposes, will end up in the hands of people who use it to promote their own interests. In these days of the Oprahization of public discourse, with even presidential candidates swearing that they feel the public's pain, asking for a measure of fortitude in the face of offense and discrimination is asking a lot. Yet, in the end, it is a small price to pay for preserving civil liberties.