Journal of Free Speech Law: "Social Sanctions on Speech," by Prof. Thomas Healy (Seton Hall)

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.

Comments

[Bored Lawyer]

Social sanctions are themselves protected by the First Amendment. So legally, not much you can do about it. Culturally, free-exchange of ideas is generally a good thing, although at some point, certain views should result in social rejection. Where to draw the line is a matter of debate.

[Dr. Ed 2]

Bored -- FIRE's letter lays it out: https://www.thefire.org/research-learn/fire-letter-umass-amherst-chancellor-john-v-lombardi-october-7-2004

These nine students graduated from UMass with judicial sanctions listed on their transcripts -- in one case a student who had been bound for law school wound up as a waitress in DC, although she eventually was able to get a paralegal job.

And what did they do? They drew a *parody* of a Klansman on a dry erase board at a *private* event, and then someone posted a picture of it on a website. (This was back in 2004, before today's tech.)

But for me, these kids would have been outright expelled.
By a public university, which is supposed to be bound by the First Amendment.

Oh, and the mob was chanting "F*ck the First Amendment" and no one in the admin even cared....

[Dr. Ed 2]

See also Harvey Silverglate's piece on this -- which explains the larger context better: https://www.thefire.org/news/send-out-clowns

The students were promised that the notations on their transcripts would be removed when they graduated if they kept quiet and didn't fight it -- and then UMass broke its promise.

[Rossami]

re: “Social sanctions are themselves protected by the First Amendment”

As the article above already points out, that depends very much on what those social sanctions actually are. If the sanctions are limited to counter-speech or social shunning by private citizens, you are entirely correct. If the sanctions extend to physical violence, you are very wrong. In the middle are harder cases like the withholding of otherwise available benefits, etc.

It also depends a lot on who is doing the sanctioning. If the sanctions are entirely imposed by private citizens, that argues for defensibility. If the sanctions are imposed by or at the direction of government actors, that argues against.

[Dr. Ed 2]

What's new -- at least new to the point it wasn't in an earlier era before social media -- is the extent to which disinterested third parties are also subject to social sanctions should they fail to support the social sanctions imposed.

An extreme example of this is Donald Trump having dinner with a clearly mentally ill Ye (aka Kanye West) -- and look at how he arrived for a television interview: https://yournews.com/wp-content/uploads/2022/12/Screen-Shot-2022-12-01-at-12.51.32-PM.png

Ye has a documented history of mental illness including being committed to a psych ward for 11 days in 2016 and cancelling 21 concerts. Reportedly he has a diagnosis of Bipolar Disorder, which is more commonly known as Manic Depression. Notwithstanding that, a grown adult going on TV in a Deadpool-like facial mask ought to raise concern.

Trump allegedly had dinner with Ye because he was concerned about and for him -- that's not unreasonable -- and now one of the major Boston TV stations is essentially accusing Trump (whose own daughter is Jewish) of, well, here is the editorial: https://www.wcvb.com/article/editorial-12-9-2022-antisemitism-in-2022/42201361

I once got into a lot of trouble for merely insisting that an undergraduate who did print some rather vile homophobic statements in a student newspaper be treated fairly -- that UMass actually follow its own rules and not summarily expel him for printing something nasty in a newspaper. There was a lot more involved, none of which I can discuss openly (like attorneys, student affairs folk are bound by confidentiality), but the issue was his having written/printed (what I considered to be) vile homophobic comments that (in my opinion) had nothing to do with what he was writing about.

While I didn't (couldn't) state it publicly, I was rather p*ssed at the young man for putting the things he did into that paper. (He also destroyed a really good story about financial corruption in the student government by making it about the perp's posterior and not her misappropriating student/state funds.)

But because I insisted he be accorded due process, I was subjected to the sanctions of one who actually wrote the things that he did.

[Dr. Ed 2]

And take the Tiki Torch Brigade -- I wasn't there, and running around with a lit tiki torch (which are intended to be rigidly inserted into nonflammable sand on a beach) strikes me as a good way to accomplish self-immolation. But this is a free country and (as best I can tell) they weren't bothering anyone -- they were on an empty, open field.

Yet each was tracked back to his college or university, with demands made that the IHE expel him. Without modern technology, this couldn't have happened -- I'm not saying that people would have liked to have done it to the Vietnam protesters, but they didn't have the means to do so. People now do.

[David Nieporent]

Trump allegedly had dinner with Ye because he was concerned about and for him

Nobody alleged that.

[Dr. Ed 2]

Trump did, and both ABC & CBS (neither MAGA) alluded to it.

[EscherEnigma]

What’s new — at least new to the point it wasn’t in an earlier era before social media — is the extent to which disinterested third parties are also subject to social sanctions should they fail to support the social sanctions imposed.

Sure, totally new. Give or take a few millennia.

[Anonymous Coward]

Ultimately, the question comes down to what we do with the hopeful monsters.

[Dr. Ed 2]

"Never lived in a small town, huh?"

One could always LEAVE a small town, and many did.
This can't be solved by a real estate transaction.

[Dr. Ed 2]

Sorry Queen, I have been boycotting Farcebook since they put me in Farcebook Jail for a day. I don't/won't have an account and hence can't read your citation.

[Dr. Ed 2]

Attacking people -- or being attacked?

I'm sure that the always-peaceful ANTIFA just happened to be standing in an empty field -- minding their own business and not looking for trouble.

As to what happened the next day, the NYPD was blunt, saying that *they* would have kept the two groups separated. Now why didn't Virginia authorities do that?

And as to the VA Trooper lost in the Helo crash, the only reason that ship was allowed to fly is that the FAA doesn't have authority over state-owned aircraft. It had already crashed once before (for the same reason) and wasn't airworthy. Yes, it sucks that a cop is dead, but the cops killed him by putting him in a helo that was defective -- if not that day, it would have crashed the next time the cops flew it.

But back to the Tiki Torch Brigade -- if they hadn't been violently confronted, would there have been violence?