The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Just published at 2 Journal of Free Speech Law 21 (2022), as part of the "Non-Governmental Restrictions on Free Speech" symposium; the Abstract:
Social sanctions on speech are ubiquitous. Every day, private actors respond to speech they dislike, disagree with, or find offensive with measures that impose a cost on speakers and thus potentially chill the expression of ideas. Some sanctions, such as criticism and condemnation, are mild and largely unobjectionable, while others, such as violence and vandalism, are severe and clearly unacceptable. Yet there are numerous sanctions in between these two poles and little agreement on which ones are compatible with the principle of free speech.
In this essay, I provide a framework for thinking about social sanctions—and the phenomenon of "cancel culture" they are part of. I begin by explaining that social sanctions, in some form at least, are an inevitable and indispensable part of our free speech system. I then consider three possible criteria for distinguishing between permissible and impermissible sanctions—intent, effect, and means—and conclude that we should focus primarily on the means used to sanction. Finally, I argue that whether a particular social sanction is consistent with free speech depends on a balancing of its expressive value and its coerciveness, and I use this approach to plot a variety of social sanctions on the continuum from least to most troubling.