When it comes to the so-called cancel culture, there is no doubt that the center of the conversation about acceptable ideas and speeches exists on social media. On Twitter, TikTok, and even image-centric Instagram, loosely affiliated groups backed by a cacophony of individual voices draw attention to infractions, spark my culpaand, in some cases, precipitate the complete banning of users from social platforms.
This debate has led to accusations of bias from social media companies. By allowing some forms of speech and censoring others, the argument goes, these companies are unfairly stifling speech. But when we look at the situation through the lens of laws that enshrine free speech as a right, we see that conversations taking place on social platforms represent a clear exercise of free speech. But, much more than that, they are a movement towards a new form of citizenship adapted to a new complex reality.
One of the things that characterizes virtually every conversation about cancel culture is a misunderstanding of free speech. The confusion is understandable. The right to free speech, as codified by the First Amendment to the U.S. Constitution and underpinned by centuries of case law, has become so entrenched in American legal culture that its provisions are regularly stretched beyond their bounds.
As far as government action is concerned, this restriction is (with very few exceptions) inviolable. Even when the speech is hateful, like the Nazis marching on Skokie, Illinois, in the 1970s, or the racist protesters seeking to exclude black students from state college campuses in the 1990s, the government cannot ban or criminalize this speech. The government, backed by courts adjudicating these issues over 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 many other democracies, including France. , Germany, South Korea and New Zealand.
Groups that claim to be “suffocated” or “muzzled” by non-state actors – today, notably by social media platforms – are falsely relying on the right to free speech to defend their right to say what they want. But the fact is that private speech restrictions are legal. What these groups really oppose is private entities refusing to allow certain speeches on their premises. This is precisely where the anti-‘cancel culture’ crusaders get it wrong – and why even the most knowledgeable and astute of them, like many of the signers of Harper’s now infamous letter, miss the most. big point on what cancel culture really stands for.
Far from unfairly wielding the power to stifle speech, those who drive crucial online debates in the form of a so-called “cancel culture” are engaging in politics in other ways . It’s hard to think of a more democratic phenomenon than people joining their voice together to create change. And change is exactly what it’s all about.
While Ronan Farrow’s reporting on Harvey Weinstein may have served as a spark, it was millions of social media users, united by the hashtag banner of #MeToo, who ended up bringing about real change in what concerns the place of women in our society. Likewise, Black Lives Matter was able to spread its motivating idea — that black people deserve justice, equal access to resources, and freedom from racism and discrimination — to the farthest reaches of the American body politic by joining their voices. on social networks. In doing so, these groups and others like them are exercising their right to speak in exactly the way the framers of the Constitution intended – not just as an end in themselves, but as a tool for political and social progress.
This is also true when it comes to social media platforms themselves. While the US government is constitutionally restricted from restricting free speech, social media platforms are not. As private companies, social platforms have every right to cultivate whatever type of exchange they deem appropriate, as long as that discourse does not violate the law (and, even then, there are exceptions).
What social media platforms need to do better, however, is establish transparent and consistent ways to monitor discourse on their platforms. For example, a test that would not pass constitutional scrutiny, but which could be used by private companies to regulate speech, would be to ask: (1) whether the average person, applying contemporary community standards, would find that the speech only spreads hatred or intolerance towards 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 subjected to the same analysis, like all other speech. This does not mean that sometimes innocent people can be unfairly hurt, with jobs lost or reputations damaged. And those cases may well deserve redress, including in court, where damages can be sought for defamation or wrongful dismissal. But more orderly monitoring of platforms will lead users to be sensitive to rules that the government cannot (and should not) provide.
Over time, the deployment of this new paradigm which agrees to cancel the culture according to
open debate will lead to a better America – with less bias and fairer politics –
because private restrictions on speech will teach people what the government cannot do, to
meet community standards or be ostracized by powerful non-governmental organizations
establishments such as Facebook and Twitter. The fear that these platforms are somehow more powerful or pervasive than the government ignores the fact that people have the freedom to speak elsewhere if they choose. Internet platforms can shape speech standards in their own way
communities, but they cannot prevent new communities with different standards of co-
existing. It does not circumvent the First Amendment – it gives way to it.
Like any organization facing massive change, our public culture must change quickly. As a result, the way we think, speak and debate ideas is changing. For some, the speed of change can be frightening. But when we look back on that moment, we will see it as a turning point that led us not away from the founding ideals of this country, but towards them.
With over 25 years of experience in the media and entertainment industry, Ed Klaris is the managing partner of Klaris Law, a law firm specializing in media, entertainment, technology and intellectual property. Ed is also CEO of KlarisIP, a consulting and managed services company specializing in intellectual property rights and royalties, digital asset management and metadata management. Prior to her law firms, Klaris was head of global intellectual property for Conde Nast, general counsel for The New Yorker and media attorney at ABC News. Klaris has been an adjunct professor at Columbia Law School since 2005.