We need to reach a cancel-culture truce
WASHINGTON – If you want to know where free speech stands in this country, look no further than last week’s protest at Yale Law School. Students tried to drown out a conservative speaker they disapproved of. Thankfully, the event went on, but in the aftermath, Judge Laurence Silberman of the U.S. Court of Appeals for the D.C. Circuit wrote fellow judges to suggest that since “all federal judges are presumably committed to free speech,” they should “carefully consider” whether those students “should be disqualified from potential clerkships.”
Many commentators were understandably troubled: Withhold plum jobs from students for exercising their First Amendment right to protest? Isn’t that terribly illiberal?
Only, wait. Given the way views on this subject cluster, it’s fair to ask whether the Yale protesters themselves believe in shunning or even firing those with the “wrong” views about race, sex or sexual orientation. And if they do, what right, then, have they to complain if they are in turn “deplatformed” from jobs with the federal judiciary?
The retort is equally obvious: Silberman works for the government, which means aspiring clerks have constitutional rights they aren’t owed by private institutions such as Yale. And anyway, isn’t it pretty hypocritical of conservatives to complain about cancel culture, then turn around and try to cancel the cancelers? And so it goes, around and around. It is easy for an intelligent adult to start with the particulars of any speech controversy, and reverse engineer some set of principles that — just coincidentally! — gives their own side the right to say whatever it wants while granting opponents only the right to remain silent.
Since the other side is equally adept, we end up mired in a circular argument.
And so I’ve come to think we should talk less about free speech as a right and more about free speech as a truce. As with any truce, it will not be honored in the breach; if you try to silence your opponents, expect them to silence you just as energetically. No matter how exquisitely logical your argument, you will never induce them to unilaterally disarm.
At the moment, we have the opposite of a truce. The right birthed Donald Trump, who has never met a civic norm he wouldn’t trample. The left, which at this point basically has total control over the centers of cultural production, has managed to get media, academia and a lot of large corporations to adopt a narrow progressive orthodoxy. Those institutions don’t just endorse that orthodoxy but enforce it — on employees, customers and even local governments.
Just as the right should never have expected the left to calmly pretend things were business as usual while Trump was ripping up the old social contract, the left should never have expected the right to leave them alone while they used their cultural and economic power to drive conservative viewpoints out of the public square. Conservatives were going to use whatever levers they could find, including their outsized political power, no matter how sincerely the left insists that no, that’s not fair, government power is different.
It’s not that progressives are wrong; government regulation of speech is different, and more dangerous, than the private kind, which is why our Constitution affords a lot of protections against it. But those protections are not unlimited, and the left is quite vulnerable in many areas. Governments can decide what gets taught in public secondary and primary schools, however ill-considered you think those decisions are, or just pull funding from a university system that has become a bastion of their political opposition. And most people on the left probably agree that it’s reasonable for judges to exclude any clerks whose views suggest they can’t be impartial. They are not required to ignore allegations that a future clerk wrote, “I hate Black people,” for example.
The Yale law students who tried exercise a “heckler’s veto” have literally demonstrated that they will not only refuse to listen to someone whose views they find disagreeable but also try to prevent anyone else from listening either. That’s radically at odds with the values our court system is supposed to uphold, such as viewpoint neutrality. Do liberal principles really demand that we stand politely by while illiberals wreck it from within?
Maybe they do, but if so, those liberal principles are apt ultimately to be abandoned; the left certainly didn’t think it needed to hew to Marquess of Queensbury rules when facing the catastrophe of Trump. The path we are on leads only to bad places.
And so, in the face of rising illiberalism across the political spectrum, we may have to adopt something like a “no first use” policy: your right to speak will be honored to the extent that you are willing to let others speak. But if you try to silence your opponents, you should not expect anyone else to care when the same is done to you.
Follow Megan Mcardle on Twitter, @asymmetricinfo.