The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In the wake of Simon and Schuster's decision not to publish Sen. Josh Hawley's book, The Tyranny of Tech, Hawley has tweeted:
This could not be more Orwellian. Simon & Schuster is canceling my contract because I was representing my constituents, leading a debate on the Senate floor on voter integrity, which they have now decided to redefine as sedition. Let me be clear, this is not just a contract dispute. It's a direct assault on the First Amendment. Only approved speech can now be published. This is the Left looking to cancel everyone they don't approve of. I will fight this cancel culture with everything I have. We'll see you in court.
Now I don't know anything about the details of his contract. If this is breach of contract, I hope he wins. But let me put that aside, and note a few things.
1. A private publisher's refusing to publish a book is not Orwellian.
First, this does not implicate the First Amendment in any way. The First Amendment, like all but two constitutional provisions, applies only against governmental entities; this so-called "state action doctrine" is one of the most important doctrines of U.S. constitutional law, and plays a vital role in preserving freedom.
But that's a detail of constitutional law (though it's presumably a detail that Hawley, a well-trained lawyer, knows about). The more important point is a moral point, independent of constitutional law: If Congress or some legislature sought to impose a legal duty on Simon & Schuster to publish authors without regard to politics, it would be wrong to do so: it would be a violation of Simon & Schuster's freedom. It would be a violation of its property rights, because it would force Simon & Schuster to use its resources to serve someone it doesn't want to serve. And it would be a violation of its freedom of association, which is one of our most important moral rights.
That Simon & Schuster is a corporation is immaterial: talking about its rights is just a shorthand way of talking about the rights of its individual owners, who happen to do business using the corporate form. If I'm a stockholder of ViacomCBS (Simon & Schuster's parent company), a requirement that Simon & Schuster act evenhandedly with respect to politics violates my property rights and freedom of association (which I've chosen to exercise together with others using a particular decisionmaking structure). It violates my freedom of association just as much as if you insisted on me personally delivering your repugnant message; perhaps my decision to do business impersonally, with a huge number of others and using agents who I'm not personally involved with, might dilute some personal privacy rights, but my associational rights are unimpaired.
Nor are there any conflicting rights at issue here. Hawley has no right to publish a book with Simon & Schuster, using Simon & Schuster's resources, without Simon & Schuster's consent. As I've said above, if Simon & Schuster consented through their contract with Hawley, they're properly held liable for reneging now. But in the absence of such an affirmative commitment, Simon & Schuster's decision to not publish Hawley's book violates no rights of Hawley's at all, and so a requirement that it serve Hawley would violate Simon & Schuster's rights without protecting anyone's rights in return.
In light of this, there is nothing Orwellian about any part of this episode. We all have a right to refuse to associate with those who are repugnant to us, and none of us have a right to associate with those who don't want to associate with us. Governments may have to treat everyone evenhandedly, but private individuals lack such a moral duty. In fact, I'd say that the ability to choose what to do with your own resources without having to justify the reasonableness of your choice to any higher authority—in short, the ability to act arbitrarily with your stuff—is the essence of private ownership of the means of production, and the essence of freedom. Freedom can be appropriately limited to protect the rights of others, but the interest in doing business with an unwilling partner is not one of those rights.
(I don't necessarily mean here to question the legitimacy of all positive enactments limiting property rights and freedom of association. There are many such enactments, and each might have its own merits; perhaps freedom might be appropriately limited in some contexts, though I think the right for private people to discriminate based on politics is an important right that shouldn't be infringed. I'm just making the point that these enactments do limit freedom, and that in any event, the default, in the absence of such enactments, has to be freedom of association.)
2. Tech companies are generally just exercising their own freedoms.
I don't mean to be piling onto Sen. Hawley here (though he certainly deserves it!), but what about the substance of his book? All I know about The Tyranny of Big Tech is what I've read in a news article, so here's my impression:
Hawley has frequently criticized Facebook, Twitter and other social media giants for everything from alleged anti-conservative bias to monopolistic control of the online market.
"At a time when these platforms are determining elections, banning inconvenient political views, lining politicians' pockets with hundreds of millions of dollars, and addicting our kids to screens, I want to draw attention to the robber barons of the modern era," Hawley said in a statement. "This is the fight to recover America's populist democracy. That is why I am writing this book."
Earlier this week, Hawley attacked Facebook and Twitter for limiting the spread of an unverified political story about Hunter Biden, son of Democratic presidential candidate Joe Biden, that was published by the conservative New York Post. Soon after he was elected Missouri's attorney general, in 2016, he launched investigations into Facebook and Google for alleged antitrust and consumer protection violations.
There are lots of critiques of tech companies, and I don't mean to address all of them here. I'm open to the idea that some tech companies are acting improperly in some of their dealings (e.g., involving privacy violations). But Hawley's critique is more wholesale than that.
I'm willing to believe that the largest tech companies have an anti-conservative bias. If you're conservative, you might find it less congenial to work at Google (and you might be fired from there if you're not careful), and you might be more likely to be banned from Facebook or Twitter than someone on the left posting equivalently fake news. There are interesting things to be said about whether that's a good idea or a good business practice, whether that encourages ideological echo chambers, whether people should quit those platforms and join more neutral platforms, and whether that creates the opposite risk of reinforcing echo chambers among conservatives.
But you know what? Facebook, Google, Amazon, Apple, etc., have their own property rights and associational rights. You can call it "censorship" if you want, but I'd advise against it, because it runs the risk of suggesting that such behavior is objectionable in the same way as censorship by governments. Government censorship, whether outright bans, taxes, or other sorts of differential treatment, will often violate free-speech rights. By contrast, private refusal to treat different views evenhandedly is an exercise of those platforms' rights and does not violate any rights of yours, because you have no right to post anything on an unwilling platform (unless the platform has committed itself otherwise, e.g. through its terms of service, though those are often either vague or deliberately grant the platform broad rights).
So while it's interesting to discuss what Facebook or Twitter's policy should be as to different varieties of political speech, it's important to remember that Facebook or Twitter (setting aside violations of their own terms of service) are incapable of violating your rights by choosing what to brand as fake news or what accounts to ban, because you do not have any such rights.
I'm sure this only scratches the surface of what Hawley writes in his book, but this analysis can be easily extended. "Determining elections"? If Facebook affects the outcome of elections by banning pro-Trump accounts or marking pro-Trump posts with disclaimers or bogus "fact-checks", while it tweaks its algorithm to aggressively promote pro-Biden posts, that's its right. It's the same right we all have: to choose how to use our own resources to promote views we like. Facebook has not acquired extra responsibilities by being large: it has the same associational freedom that Mark Zuckerberg had in his dorm room in 2003 when his Facemash allowed you to rank the hotness of Harvard undergrads. (Maybe it has even more associational freedom now, because for all I know, Zuckerberg was constrained by Harvard's Internet usage policies back then?)
Monopolistic control? That's what tends to happen when you have a popular platform with network externalities. Nobody's forcing anyone to use Facebook. And mergers are just an exercise of contractual and property rights: anyone should be able to buy anyone else's property. Nobody has the moral right to deal with more social networks instead of fewer, because nobody is entitled to have access to a social network at all without that network's consent. They have rights to use their resources, you don't have the rights to their resources.
3. Private universities have no duty to be even-handed.
While we're on the subject of private university policies—which gets us beyond Hawley and his book—there are plenty of universities that aren't evenhanded. Conservatives have a tough time on many university campuses. And not just conservatives: if you talk to pro-Palestinians and pro-Israelis, each will tell you that they're the target of discriminatory treatment. Maybe they're both right. Harvard had a policy against single-sex organizations, which it (thankfully) abandoned in the wake of Bostock.
But let me sound like a broken record now: Government-run universities may have duties to be evenhanded, but private universities are just exercising their property rights and associational freedoms when they decide to discriminate against political views or organizations they don't like (provided they haven't limited their options, for instance by contract). And you—the student, employee, or faculty member—have no right to a private university's property, money, or other resources without its consent. A private university (like my university, Emory) has as much associational freedom as if it were your private tutor giving you lessons in his or her own apartment.
Now of course there are lots of interesting arguments one can make about what universities should do. My university has voluntarily chosen to commit itself to quasi-First Amendment norms as a matter of university policy, and I'm actually the chair of a committee whose mission is to help implement the policy. I feel strongly about that policy, but it's not because I think I (as a professor) or the students have moral rights to politically evenhanded treatment (as we would at a public university). We lack such rights, except to the extent the university has granted them to us. Of course, with respect to governments, it goes the opposite way: we have moral rights, which the government must respect. But we lack the right to exercise those rights on private property, or using private resources, without the property owner's consent. So my views on free speech on private university campuses are not a matter of rights, just a matter of my views about what's a good way to run a university. Above all, I recognize that the university has the moral right to shut down any speech it likes (consistent with its contractual commitments) if it wants to.
4. A side note: Removing monuments from the public square, or books from school curricula, is not banning books or erasing history.
Let me digress a bit, into an area that isn't about private ownership and private associational rights, but still gets at various aspects of so-called "cancel culture". This is a point that applies equally well at public schools and in the public square.
Today, it's (rightly) fashionable to remove statues of Confederates, and (sometimes questionably) fashionable to remove statues of people who might have done good and important things for their times but fall short of modern progressive standards. Whenever this happens, the claim is that the statue-removers are "erasing history". Similarly, sometimes books are removed from curricula because they don't conform to currently fashionable standards, and sometimes this decision is questionable, as when books critical of racism are removed because of their depiction of racism, or when a book important to the Western literary tradition is removed because it makes people feel bad. There, too, you hear claims like "book-banning".
Let's start with the statues, though this analysis also applies to building, street, and city names, postage stamps, and the like. The public square is not a history textbook; it's a way for the government that controls the space to show who it honors. The public square has limited space—and I don't mean primarily physical space; people's brain-space and interest level are limited, so the owner of a public space has limited ability to make an impact on its intended audience. You could easily multiply the number of statues by 10 in many places without significant physical crowding, but if you want to show who you honor, it's probably more effective, given people's limited attention, to honor fewer people and in a more prominent way.
Now there are many good arguments you can make about who should be honored, and when something should be renamed. These arguments could involve whether the person was really so bad and whether their good accomplishments overshadow their bad ones; they could involve whether the transition costs of renaming would be too high (especially when we're renaming streets or cities); they could involve the merits of removing vs. contextualizing (especially with extremely large monuments like Stone Mountain); and so on. This will inevitably involve culture-war considerations, because choosing who to honor with statutes or building names has virtually no concrete effects and is overwhelmingly about symbolism. By the way, all this might be an excellent idea for removing the government from the business of honoring people—but I'm sticking to the world as it is now.
Needless to say, replacing statues with other statues, renaming buildings, etc., rarely violates anyone's rights (outside of the unusual case where there was a contractual commitment to keep a donor's name on a building, or the like). But is this "erasing history"? Not at all. No books are banned; no speech is restricted; this is the government choosing who to honor. The fallacy is in thinking that the public square is like a history textbook. In fact—assuming that governments should be in the statue business—we should probably be changing our statues more frequently, as some previously notable people are forgotten and popular values change.
How about school curricula? Just like the public square, the curriculum for a given grade has limited space. Someone has to choose what to put there, and there's no obvious reason that The Odyssey or Huck Finn has to occupy any particular place. There's a huge number of books appropriate for any grade level, and many of those might be equally good for pedagogical purposes.
As before, one can make many interesting arguments about what should and shouldn't be on the curriculum. One can argue that the curriculum should be primarily about cultural literacy, which means the Great Works should be taught because we need kids to know the history of literature, even if it has offensive components. (I generally agree with this perspective, especially for the higher grades and for college courses, though that's not the only consideration.) One can argue that the curriculum should be about books that are engaging and make kids want to read. One can argue that, when a book contains elements that are offensive to modern sensibilities, discussion of that element will dominate class time and improperly overshadow the literary values of the work, so why not choose a book that's relatively inoffensive but is still good for teaching writing skills and reading comprehension?
This is a fascinating discussion, which involves listening to teachers' experiences with actually teaching particular books and subjects to kids of the relevant age and grade level, as well as ideological issues like who to honor, whether to stress women and minorities, whether to seek out or avoid particular topics, what view of U.S. and world history to convey, etc. But here's the thing: none of this is remotely like banning books or erasing history. It's a managerial issue of how to allocate limited curricular space.
* * *
This has already been long enough, but I hope the theme is clear. "Cancel culture" is a broad term that embraces lots of different acts and lots of different consequences—boycotts, firing, piling on to someone on social media, refusal to be friends, rescinding a college acceptance or speech invitation, pulling down a statute, taking a book off the curriculum, etc. In some cases, some of those acts might violate someone's rights. This is especially true when someone has made a contractual commitment to do the opposite, or when a government is acting. Governments have certain duties to be evenhanded, but people lack those duties. Instead, people have freedom, both freedom to choose how to use their property and other resources, and more generally a right to choose who they'll associate with. Those are core freedoms. We should feel free to argue about how people ought to exercise their freedoms, but always recognize that the freedoms are theirs to exercise.