“One way in which events in the East have had a radical effect on the West,” Russian-American writer Alexander Genis wrote last week on Russia’s last major independent news site, Novaya Gazeta, commenting on the fallout from Vladimir Putin’s war in Ukraine, “is that the endless and ferocious ‘culture wars’ in American society came to an immediate halt.”
Ha. On the very day Genis’s article was posted, two culture-war skirmishes over free speech and “cancel culture” flared up in the American media and managed to get some attention even amid the almost wall-to-wall Ukraine coverage.
First, there were reports of a kerfuffle at Yale Law School in which protesters tried to shout down an event featuring a speaker from Alliance Defending Freedom, a conservative Christian legal advocacy group that opposes LGBT rights—and more than half the law school’s student body signed a letter siding with the protesters. Adding more fuel to the fire, a conservative federal judge suggested that the disruptive protesters should be blocked from future clerkships.
Then, the New York Times published an editorial on the dangers of “cancel culture,” accompanied by a poll showing that a majority of Americans regard the silencing of speech by social pressures and fear of retaliation as a serious problem. While the editorial also discussed the danger of conservative legislation targeting progressive curriculum content and classroom speech, the backlash from the left was loud and fierce.
The New York Times said we have a “free speech problem” because we “silence conservatives.” Let me rephrase that — Nazis, terrorists & Pro-Putin Republicans are being ridiculed for their hate speech, and NYT is defending their “freedom of speech. Cancel your NYT subscription
— Uncovering The Truth (@UncvrngTheTruth) March 18, 2022
If I still worked at the NYT, I would seriously think about quitting today.
— Adam Davidson (@adamdavidson) March 18, 2022
Welcome back to the culture wars, which are still following the usual script. The center-right (and some on the left) sound the alarm about intellectual intolerance and speech suppression by the progressive left. The left responds with a chorus of derision and dismisses these concerns as a moral panic based on a false narrative, not to mention a distraction from the real threats to freedom posed by the right. And in the end, everyone comes away a little more convinced that people on the other side are either terminally dumb or intellectually dishonest.
Let’s take a closer look at the latest two battles.
The Yale Law School event, which took place on March 10, was a Federalist Society-sponsored panel whose purpose, ironically, was to demonstrate how a Christian conservative (ADF general counsel Kristen Waggoner) and a secular progressive (American Humanist Association senior counsel Monica Miller) could overcome their differences to work for a common cause. Waggoner and Miller had been on the same side of a 2021 religious-freedom case, Uzuegbunam v. Preczewski, in which the Supreme Court affirmed, 8-1, that a student who had been prevented from distributing religious literature on campus could sue for damages even though the school had revised its restrictive policies and even though the student had already graduated.
Waggoner’s presence incensed progressive students at Yale Law because of the ADF’s positions on gay and transgender issues, which earned it an “active hate group” designation from the Southern Poverty Law Center in 2016. The SPLC’s fairly recent move to add dozens of mainstream conservative groups with anti-LGBT, anti-Islam, or anti-immigration views to its “hate list” alongside neo-Nazis, Holocaust deniers, racist skinheads, and neo-Confederates has generated its share of controversy, particularly in the case of the ADF, which has successfully argued 13 cases in front of the Supreme Court. But even without the SPLC listing, there is no doubt that a group like the ADF, which has not only opposed same-sex marriage but argued for the right of states (and governments abroad) to criminalize same-sex sexual relations, would be controversial on college campuses.
Over one hundred protesters—who outnumbered the actual audience—crowded into the auditorium. According to a report (with accompanying video) by Aaron Sibarium in the Washington Free Beacon, the protesters not only stood up holding anti-ADF signs as soon as Waggoner was introduced by the moderator, Yale law professor Kate Stith, but became noisy and confrontational. When Stith reminded them of Yale’s free speech policies, which prohibit protests that impede “speakers’ ability to be heard and of community members to listen,” she was also heckled, and things got even more raucous after she told the hecklers to “grow up.” The protesters snarkily insisted that they were the ones engaging in free speech and that she was disrupting them. Stith finally said that if the disturbance continued, she would either ask the protesters to leave or have them ejected.
According to Sibarium’s report:
The protesters proceeded to exit the event—one of them yelled “Fuck you, FedSoc” on his way out—but congregated in the hall just outside. Then they began to stomp, shout, clap, sing, and pound the walls, making it difficult to hear the panel. Chants of “protect trans kids” and “shame, shame” reverberated throughout the law school. The din was so loud that it disrupted nearby classes, exams, and faculty meetings, according to students and a professor who spoke on the condition of anonymity. . . .
At times, things seemed in danger of getting physical. The protesters were blocking the only exit from the event, and two members of the Federalist Society said they were grabbed and jostled as they attempted to leave.
On March 15, the open letter signed by over 400 of the 650 or so Yale Law students was released. It condemned not only the invitation to Waggoner as an assault on “our community’s values of equity and inclusivity” but the presence of armed police at the protest. (Police officers arrived at the end of the panel to escort Waggoner and Miller out of the building.) Allowing police on the premises, the letter stated, “put YLS’ queer student body at risk of harm.” The letter also criticized both Stith and Miller for participating in the event, and Stith in particular for admonishing the protesters.
Two days later, Senior Judge Laurence Silberman of the Court of Appeals for the D.C. Circuit, a Reagan appointee, sent a short and blunt email to a listserv for federal judges:
The latest events at Yale Law School in which students attempted to shout down speakers participating in a panel discussion on free speech prompts me to suggest that students who are identified as those willing to disrupt any such panel discussion should be noted. All federal judges—and all federal judges are presumably committed to free speech—should carefully consider whether any student so identified should be disqualified for potential clerkships.
In response, Slate legal columnist Mark Joseph Stern asserted that Sibarium’s account in the Free Beacon of “raving protesters hellbent on shutting down free speech at any cost” was overdramatized and exaggerated, that the protesting students walked out peacefully and that their behavior in the hallway was not disruptive enough to warrant police intervention, and that the only real threat to free speech in this incident was “the possibility that federal judges will blacklist law students from clerkships because they expressed their beliefs too loudly.”
This benign view of the hecklers’ behavior as merely a loud exercise of free speech rights was echoed by a number of Twitter progressives.
Free speech, but make it quiet enough that it doesn’t disturb my peace!
— Dr. Mansa Keita (@rasmansa) March 18, 2022
One commentator who strongly disagrees is lawyer-turned-blogger David Lat. After reviewing the video, audio, and statements from various sources, Lat concludes that “the noisy protest continued, at varying levels of intensity, throughout most if not all of the proceedings” and that the event was “significantly disrupted,” even if it “managed to limp to a conclusion.” Lat regards this as an outrageous and troubling attack on freedom of speech, despite being a member of the very community that the protesters claimed was being harmed platforming Waggoner:
As a gay man who is in a same-sex marriage and raising a son with my husband, I strongly disagree with ADF’s views on same-sex marriage and parenting. But I strongly defend the right of its leaders to speak and to participate in public events, and I think the treatment that Kristen Waggoner received at YLS was disrespectful and wrong.
It’s true that the Yale law students’ behavior does not, strictly speaking, amount to a “heckler’s veto,” recognized as unconstitutional speech suppression in First Amendment law; that term properly refers to censorship by authorities on the pretext that the censored speech may cause a disturbance. But Florida International University law professor Howard Wasserman, who is somewhat sympathetic to disruptive protesters, has argued that the term should also apply when the authorities—in this case, university officials—allow hecklers to shout down or significantly disrupt speech. (And besides, the informal usage of “heckler’s veto” in reference to the hecklers’ actions has a pretty illustrious pedigree that includes the late Nat Hentoff, preeminent civil libertarian, First Amendment purist, and author of a classic text on the subject, the 1992 book, Free Speech for Me—But Not for Thee.)
The students’ self-righteous insistence that they were on a mission to prevent “harm” reflects the illiberalism at the heart of today’s social justice movement. It is also a far-reaching rationale for speech suppression—after all, there is almost no issue that cannot be framed as harm prevention by either the left or the right. Lat, who refers to the “heckling is free speech” position as “survival of the loudest,” sums up in tangible exasperation:
I can’t believe I’m having to write a defense of a free-speech regime in which people listen respectfully to the other side, even when they find the other side’s views abhorrent, as opposed to a free-speech regime where “freedom” belongs to whoever can yell the loudest. You would have expected—and hoped—that law students, as future lawyers, would understand the value of the former and the problems with the latter.
And what of Silberman’s email? Advocating professional retaliation against law students who engage in constitutionally protected protest would certainly be disturbing. But in this case, the students were not only engaging in attempted speech disruption but arguably breaking the law (their behavior in the hallway likely qualifies as disorderly conduct, and Sibarium reports that the full video and audio shows one of the protesters telling a Federalist Society member that she would “literally fight you, bitch,” which almost certainly meets the threshold for misdemeanor harassment). If these disruptions were directed at a feminist or LGBT event, would the suggestion that the culprits’ behavior should affect their professional opportunities even be controversial? And besides, if shouting and chanting to silence a speaker is speech, then surely so is expressing the opinion that the shouters may be ill suited for judicial clerkships: It’s free speech all the way down.
The incident has other alarming aspects. Sibarium’s reporting indicates, for instance, that law students were under strong pressure to sign the open letter defending the protesters. One student in a class chat apparently expressed shock that “we’re at this point in history and some folks are still not immediately signing a letter like this” and then added, “I’m sure you realize that not signing the letter is not a neutral stance.” Meanwhile, Yale Law School has not condemned the hecklers’ violation of its free speech policies—witnessed by an associate dean, Ellen Cosgrove, who was present for the entire panel—or reaffirmed its commitment to free expression.
The March 18 New York Times editorial that caused the big outcry, titled “America Has a Free Speech Problem,” is a good-faith effort hampered by not-so-great execution. The problem shows up in the opening paragraph:
For all the tolerance and enlightenment that modern society claims, Americans are losing hold of a fundamental right as citizens of a free country: the right to speak their minds and voice their opinions in public without fear of being shamed or shunned.
The critics have a point: there is no such thing as a right so speak without having to worry about “being shamed or shunned.” It’s true that the editorial goes on to say (several paragraphs down) that the issue here isn’t First Amendment rights, it’s a cultural climate inhospitable to speech. But the editorial, and its accompanying poll, further muddies the waters when it seems to conflate criticism with persecution (i.e., doing precisely what “cancel culture” foes are often accused by progressives of doing). The first three poll questions cited in the editorial, which deal with people’s experiences of self-censorship and bullying, refers to “retaliation or harsh criticism” for speech. But these things should not be lumped together, and besides, “harsh criticism” is an extremely vague phrase that could refer to anything from “that argument should be taken out and shot for torturing logic” to “that argument is racist and misogynistic.” The “harsh criticism” that serves as a “cancel culture” enforcement mechanism has two essential characteristics: accusations of moral atrocity (usually some form of bigotry or insensitivity to bigotry) and collective judgment or shaming.
There are instances when such a reaction is appropriate. Few reasonable people would complain if fear of shunning discourages the public expression of truly abhorrent views (e.g., that slavery or the gulag were benevolent institutions, that the Holocaust is a Jewish hoax, or that adult/child sex should be the next frontier in sexual liberation). But if we value intellectual freedom, we as a society must be careful to ensure that “beyond-the-pale” opinions are narrowly and clearly demarcated. In today’s social justice discourse, on the other hand, the lines are blurry and ever-shifting, and taboos spread like the Blob.
Despite its missteps, the Times editorial is broadly on the right track in its identification of the problem, which it defines as the “depluralizing of America”:
The political left and the right are caught in a destructive loop of condemnation and recrimination around cancel culture. Many on the left refuse to acknowledge that cancel culture exists at all, believing that those who complain about it are offering cover for bigots to peddle hate speech. Many on the right, for all their braying about cancel culture, have embraced an even more extreme version of censoriousness as a bulwark against a rapidly changing society, with laws that would ban books, stifle teachers and discourage open discussion in classrooms.
The response has been predictable. Back in the days when feminism was the big progressive cause, journalist Helen Lewis came up with a quip that came to be known among online feminists as “Lewis’s first law”: “Comments on any article about feminism justify feminism.” I’ve always found this saying glib and unconvincing, since anonymous misogynistic trolls in comments sections don’t necessarily reflect the general state of society; but the commentary regarding the Times editorial from named and respected progressives, including a member of Congress, does illustrate the editorial’s very case.
In fact, few of the famous cancel culture controversies have involved “embarrassing racists.” It seems unlikely that any critic of cancel culture shed tears for ex-Los Angeles Clippers owner Donald Sterling when he was banned for life from the NBA and fined $2.5 million in 2014 after the exposure of his racist rant in a recorded phone conversation with his then-girlfriend. What people have in mind when they talk about today’s culture of intolerance is more like the case of New York Times star science writer Donald McNeil, pressured to resign after a scandal stemming from a conversation with high school students in which he uttered a racial slur in the context of discussing whether someone should be punished for using it. Or the coerced resignation of Philadelphia Inquirer editor Stan Wischnowski, who had published an article arguing that property destruction from rioting associated with anti-racist protests was damaging to the community and used a headline some considered disrespectful to the Black Lives Matter movement (“Buildings Matter Too”). Or the controversy early in 2020 over the novel American Dirt by Jeanine Cummins, which was written to humanize the plight of migrants on the Mexican border but was viciously denounced because the author was too white, may have gotten some details wrong, and wrote two or three lines referencing a character’s brown skin—resulting in the cancelation of Cummins’s book tour.
In a Bulwark article last October, I discussed a fairly wide range of such cases, all involving “retaliation” and not just “criticism,” targeting business owners (whose only crime may have been an insufficiently enthusiastic expression of support for BLM during the protests in the summer of 2020), educators, writers, and TV personalities. I could easily list many more. Obviously, hard data are difficult to come by on an issue like this, considering that visible “cancelations” are the tip of the iceberg and it’s the chilling effect that may matter most. But, despite the flaws in the Times poll, the fact that nearly half of the respondents said they felt “less free” than ten years ago to express their political viewpoints in day-to-day situations, and more than a third felt less free to express their views on race relations, should be alarming.
Nonetheless, the tenor of most progressive responses to the controversy over the Times editorial seemed to be “what problem?” New Yorker writer Adam Davidson, the one who tweeted (above) that he would have been thinking of quitting over the editorial if he still worked at the Times, put out a request for actual evidence of cancel culture only to dismiss a few of the responses and ignore the vast majority of the others.
Can one of you believers in cancel culture just write one piece that gives evidence and doesn't just speak to a feeling you have?
Maybe some data that helps your readers know the size and scale of this problem? Also, some examples of people actually fired?
— Adam Davidson (@adamdavidson) March 19, 2022
But perhaps the most perfect response came from Dan Froomkin, the lefty journalist and founder/editor of an outfit called Presswatchers, who opined that the editorial staff of the New York Times should retract the editorial and resign. For daring to suggest that there is a free-speech problem on the left. That’ll show them.
Is it any surprise that Froomkin also thinks the yellers at Yale were engaging in free speech?
None of this is to deny that the right has its own massive free-speech problems, or that it routinely weaponizes “cancel culture” to defend its bad behavior while canceling its own dissenters. Heck, even the Kremlin is weaponizing cancel-culture tropes to vent its grievances about sanctions in retaliation for Vladimir Putin’s invasion of Ukraine—even as the Putin regime cancels the last remnants of a free press in Russia, has elderly women arrested for protesting, and takes political correctness to a new level by banning the word “war” in reference to the “special operation.”
The plight of Russian dissidents is also a salutary reminder that for all our “cancel culture” debates, we are incredibly privileged compared to most of the world when it comes to freedom of speech. The First Amendment protects us from suppression of speech by the government, and it does so much more effectively than it did a hundred years ago. Being fired or publicly pilloried over a “bad” opinion or a misunderstood remark is bad, but it’s still not up there with being harassed by the police, having your computer confiscated, or being arrested—let alone being sent to a penal colony.
Nonetheless, the culture of free speech and intellectual tolerance does matter, and the free exchange of opinions and ideas that is the lifeblood of liberal democracy can be severely curtailed by mob rule as well government—even if the mob is a digital one. Progressive censoriousness may not be the same as censorship, but it is very likely to undermine the robustness of First Amendment protections: Surveys already show that only 30 percent of all college students, compared to 57 percent of all American adults, understand that the First Amendment protects so-called hate speech. (Ocasio-Cortez’s dismissive remark about “[F]irst [A]mendment screeds” as a “service for the powerful” doesn’t exactly foster respect for First Amendment freedoms.)
Resisting illiberalism in all its forms, including the “progressive” ones, is all the more important at this moment when the free world is uniting in defense of its values against the authoritarian tide.
Correction, March 23, 2022, 5:05 p.m.: The article originally stated that the ADF had successfully argued 9 cases in front of the Supreme Court. The ADF has won 13 cases at the Supreme Court. The text has been changed accordingly.