The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Some Cancellations are Justified
Whether a person deserves to be "cancelled" for saying awful things depends on the nature of what they said and the nature of their job.
Over the last few years, conservatives and some libertarians have made a point of complaining about "cancel culture," while many on the left have defended cancellations, or at least minimized their significance. But the shoe has been on the other foot in recent days, as there have been "cancellations" of student leaders and others who expressed sympathy for the horrific Hamas terrorist attacks against Israel. For example, when the president of the NYU law school student bar association issued such a statement, a law firm rescinded its offer to her, and the SBA itself moved to dismiss her from its presidency. People on the right have tended to support the cancellation of Hamas apologists, even if they opposed earlier left-wing cancellations.
Libertarian-leaning Washington Post columnist Megan McArdle (who opposed left-wing cancellations) decries the Hamas cancellations, as well. She argues that "free speech is the cornerstone of our democracy, and free speech by definition requires protecting unpopular ideas. Since bad ideas are often unpopular, this will include protecting some bad ones — fighting them with good ideas, rather than threats."
I respect her consistency. But I disagree. And that disagreement is not of recent vintage, born of the Hamas cases. Back in 2014 (long before "cancel culture" was a widely known phrase), I refused to sign a statement suggesting that we should never fire people because of their views. Sometimes such firings are justified:
[A]t one point the statement asserts that "the consequence of holding a wrong opinion should not be the loss of a job." I think this is true in the vast majority of cases, but not always. For example, few would object if [the person in question] had been fired for donating money to the KKK or a neo-Nazi organization… Despite some deplorable PC excesses, overall the effort to stigmatize racism and Nazism has produced some beneficial results. Elsewhere, I have suggested that there should be greater stigma attached to advocacy of communism than there is at present among Western intellectuals. Advocates of such ideologies should not be persecuted by the government or barred from all employment (even by private action). But it makes sense to impose some social stigma on them and exclude them from positions of great influence and prestige. Indeed, there has never been a society, no matter how liberal, that did not regard at least some ideas as "beyond the pale…."
In an ideal world where everyone carefully weighs opposing arguments strictly on the basis of logic and evidence, stigmatization would be both ineffective and unnecessary. In the real world, unfortunately, it can be a necessary evil, albeit only in extreme cases….
How do we identify cases where cancellation is justified? I summarized some possible criteria:
Opposition to same-sex marriage is distinguishable from Nazism, racism, and communism based on a combination of 1) the magnitude of the evil involved, 2) the extent to which the evidence against the view in question is overwhelming, and 3) the likely effects of trying to stigmatize [it]…., which in the case of [opposition] same-sex marriage is likely to be counterproductive.
The case at hand was the forced resignation of a Mozilla executive who opposed same-sex marriage (I myself was and am a longtime supporter of same-sex marriage, but did not think opposition was worthy of cancellation).
I still hold much the same view today. But I would add some additional considerations.
First, much depends on the nature of the job we are talking about. Some positions - most notably those involving academic inquiry and research - require very broad freedom of thought, in order to ensure free-wheeling inquiry. In these types of situations, we must often tolerate abhorrent views, in order to avoid stifling research and debate. For that reason, I defended the academic freedom of University of Pennsylvania law professor Amy Wax, despite the fact she made awful comments advocating discrimination against Asian immigrants (which I condemned).
Wide-ranging free inquiry is not a primary purpose of most jobs, however. In those cases, there is much less social cost to employers' exercising their right to dissociate themselves from people whose views they find abhorrent. This point pretty clearly applies to the law firm that rescinded the offer to the Hamas apologist, and to the NYU SBA, as well.
In some situations, moreover, the nature of the job is such that an employee with at least some types of abhorrent views is likely to prove a menace to the organization's mission. If Wax were up for a position as a university president or high-ranking administrator, it would be entirely proper to reject her based on her awful views. Research and debate are not primary duties of administrators. And people in such positions have a lot of discretionary power over students and staff that a person with Wax's views could readily abuse.
Moreover, top-level leaders are supposed to embody an institution's values to a greater extent than rank and file employees. If a college president or corporate CEO is an open racist or terrorism apologist, it's far more difficult for the institution to dissociate itself from his positions, than in the case of people in lower-level posts. Barring people with abhorrent values from such high-ranking positions is far more defensible than denying them other types of jobs.
There are, of course, many jobs where even the most abhorrent possible views are of little moment. Rarely, if ever, should anyone care about the political views of a construction worker or an accountant. Those views are highly unlikely to affect their work, and letting people with abhorrent views hold such positions is unlikely to give those opinions undeserved prestige or social status.
Finally, as noted in my 2014 post, cancellation is unlikely to work when it comes to awful views that are widely held. For example, we could not effectively cancel racists in 1950s Alabama. In such cases, it might still be justified to avoid appointing advocates of terrible views to positions of great power that they are likely to abuse (e.g. - even then, perhaps especially then, it's better that a university president not be a racist). But it makes no sense to bar them merely for the purpose of stigmatization.
In sum, whether cancellation is justified depends on some combination of the awfulness of the views in question, the nature of the job, and whether stigmatization is likely to be effective. This makes for a complicated calculus, and people will surely make mistakes in applying it. But the alternative of never terminating employment based on abhorrent views is even worse. In that scenario, we would be unable to remove Nazis, Communists, and the like from positions where they are likely to cause serious harm.
Perhaps we should nonetheless abjure cancellation across the board, if the only alternative is the destruction of free inquiry and discourse. But I think we are nowhere near that point. In a society with strict limits on state-imposed censorship (a different beast from private cancellation), any widely held view is unlikely to be systematically suppressed, because there are likely to be institutions that back it. If left-wing institutions cancel conservatives for stupid reasons, right-wing institutions are likely to give them a platform - and vice versa. Indeed, this is exactly what has happened with many victims of dubious cancellation attempts (and even some whose cancellations were better justified).
Many of the things that supposedly can't be said in the intellectual world (opposition to affirmative action, support for police crackdowns on crime, critiques of cancel culture itself, and much else) are in fact said all the time, usually with few or no negative consequences. Don't believe me? Look around the internet and find numerous examples of people saying them! I've said a number of them in prominent venues myself, and haven't even come close to cancellation.
Moreover, people of good faith can and do make reasonable distinctions between different types of views and different types of institutions. And if you think few or no people have good faith, then attacking cancel culture is unlikely to help, as the bad-faith types aren't going to heed your exhortations anyway.
We can't avoid all mistakes, and there will continue to be some egregious cancel culture excesses. We should condemn them and work to reduce their incidence. But we should not go to the opposite extreme of rejecting cancellation across the board.
