When it comes to so-called cancel culture, there’s little doubt that the focus of the conversation about acceptable ideas and speech exists on social media. On Twitter, TikTok and even image-centric Instagram, loosely affiliated groups backed by a cacophony of individual voices call attention to offenses, elicit mea culpas, and, in some cases, precipitate the banning of users from social platforms entirely.

This debate has led to accusations of bias on the part of social media companies. By allowing some forms of speech and censuring others, this argument goes, these companies are unfairly stifling speech. But when we look at the situation through the lens of the laws that enshrine freedom of speech as a right, we see that the conversations unfolding on social platforms represent a clear exercise of free speech. But, even more than that, they’re a movement towards a novel form of civics adapted to a complex new reality. 

One of the things that characterizes virtually every conversation about cancel culture is a misapprehension about free speech. The confusion is understandable. The right to freedom of speech as codified by the First Amendment to the U.S. Constitution and undergirded by centuries of case law has become so entrenched in American legal culture that its provisions routinely get stretched beyond their bounds. 

When it comes to government action, this restriction is (save for very few exceptions) inviolable. Even when speech is hateful, as Nazis marching on Skokie, Ill., in the 1970s, or racist protesters seeking to exclude Black students on state university campuses in the 1990s, the government cannot ban or criminalize that speech. The government, backed by courts adjudicating these issues over the course of decades, has gone so far as to protect the burning of the American flag as a form of protected speech, an act prohibited by law in numerous other democracies, including France, Germany, South Korea and New Zealand.

Groups that claim to be “stifled” or “muzzled” by non-governmental actors — today, most notably by social media platforms — incorrectly draw on the right to free speech to support their right to say what they want. But the fact is that private restrictions on speech are lawful. What these groups are really objecting to are private entities declining to allow certain speech on their premises. This is precisely where the anti-“cancel culture” crusaders go wrong — and why even the most informed and astute among them, such as many of the signatories to the now infamous Harper’s letter, miss the bigger point about what cancel culture really represents.

Far from unfairly wielding power to stifle speech, those carrying on critically important debates online in the form of so-called “cancel culture” are engaging in politics by other means. It’s difficult to think of a more democratic phenomenon than people joining their voices together to create change. And change is exactly what this is about.

While Ronan Farrow’s reporting on Harvey Weinstein may have served as the spark, it was millions of social media users, united by the hashtag banner of #MeToo, who ended up compelling real change when it comes to the place women occupy in our society. Similarly, Black Lives Matter has been able to spread its motivating idea — that Black people deserve justice, equal access to resources, and freedom from racism and discrimination — to the furthest reaches of the American political body by joining their voices on social media. In so doing, these groups and others like them are wielding their right to speech in exactly the way the Constitution’s framers intended — not merely as an end unto itself but as a tool for political and social progress.

This is equally true when it comes to social media platforms themselves. While the U.S. government is limited by the Constitution from restricting speech, social media platforms are not. As private companies, the social platforms are fully entitled to cultivate the kind of interchange they deem appropriate, so long as that speech does not violate the law (and, even then, there are exceptions).

What the social media platforms need to do better, however, is to establish transparent and consistent ways of monitoring speech on their platforms. For example, a test that would not pass constitutional muster but could be used by private companies to regulate speech would include asking: (1) whether the average person, applying contemporary community standards would find that the speech propounds merely hatred or intolerance of one or more people or groups of people, and (2) whether the words, taken as a whole, lack serious literary, artistic, political, or scientific value.  

With this test, cancel culture and hate speech will be subject to the same analysis, as will all other speech. This does not mean that, sometimes, innocent people may be unfairly injured, with jobs lost or reputations damaged. And those cases may well deserve redress, including in court, where damages can be sought in cases of defamation or undue termination. But more orderly monitoring of the platforms will lead users to be sensitive to rules that the government cannot (and should not) provide.  

Over time, the unfolding of this new paradigm that accepts cancel culture as a function of
open debate will lead to a better America – with less prejudice and more equitable policies –
because private restrictions on speech will teach people what the government cannot do, to
abide by community standards or be ostracized by powerful non-governmental
establishments such as Facebook and Twitter. The fear that these platforms are somehow more powerful or pervasive than government fails to account for people having the freedom to speak elsewhere if they so choose. Internet platforms can shape speech norms in their own
communities, but they cannot prevent new communities with different standards from co-
existing. This doesn’t bypass the First Amendment — it gives way to it.

Like any organism confronted by massive change, our public culture is having to change fast. As a result, the way we think about, talk about and debate ideas is evolving. For some, the sheer speed of the change might be scary. But when we look back on this moment, we’ll see it as a turning point that led us not away from the founding ideals of this country, but back towards them.

With more than 25 years in the media and entertainment business, Ed Klaris is the Managing Partner of Klaris Law, a media, entertainment, technology and intellectual property law firm.  Ed is also the CEO of KlarisIP, a consulting and managed services firm focusing on intellectual property rights & royalties, digital asset management and metadata management.  Prior to his firms, Klaris was head of global IP for Conde Nast, General Counsel of The New Yorker, and media counsel at ABC News. Klaris has been an adjunct professor at Columbia Law School since 2005.

Published on Jul 31, 2020