Cancel Culture Has No Judge, No Jury and No Statute of Limitations

Every legal system in history that has tried to punish people has eventually discovered the same four problems: the wrong person, the wrong facts, the wrong penalty, and no way back. The common law spent about eight centuries inventing the remedies. Then somebody with a phone and a bad afternoon reinvented the problem in nine minutes, which is a startup success story if you ignore the part about justice.

Let me say up front what this post is not. It is not a claim that people should be free of criticism. They should not be. It is not a claim that employers, customers and neighbours must tolerate everything. They need not. It is an argument about process: when we punish a person for what he said or believed, we owe him certain things, and a campaign that owes him none of them is a bad way to run a free society.

Define the term

Cancel culture, as I use the phrase, means a coordinated public campaign to punish a person for speech or association, by seeking his dismissal, the withdrawal of his professional opportunities, or his social exile, where the punishment is out of proportion to the act, imposed without a fair process, or cannot be ended by an apology or the passage of time.

Notice what the definition excludes. A sharp review is not cancellation. A boycott of a company over its policies is not cancellation. An employer firing a worker for misconduct after an investigation is not cancellation. A person who says something foolish and is mocked for it has been criticised, and criticism is the price of speaking. The thing I am describing is narrower and more serious: the punishment of a person, as opposed to the rebuttal of his argument, carried out by a crowd that is simultaneously prosecutor, jury and executioner.

The argument in numbered premises

Here is the argument. Each premise is something the law and the moral tradition have held for a very long time.

Premise one: A person is entitled to notice of what he is accused of

The oldest principle of fair procedure is that you must be told the charge. A person has a right to know the accusation against him so that he can answer it. In the Hebrew Scriptures, the law of witnesses in Deuteronomy 19 insists that a single witness is not enough to establish a charge: a matter must be established by the testimony of two or three. The tradition built the idea that accusation is not proof into its foundations.

A mob campaign operates the other way. The accusation arrives as a screenshot, stripped of context, circulated before the subject knows it exists. He learns of the charge when his employer's phone starts ringing. In some cases the screenshot turns out to be accurate. In others it is a clipped quotation, a misattributed post, or a joke without its setup. The point is not that every accusation is false. It is that the system has no step at which falsity would be discovered before the penalty lands.

Premise two: A person is entitled to a hearing before a neutral decision-maker

Chapter 39 of Magna Carta, sealed by King John at Runnymede in 1215, reads in the standard English translation that no free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, except by the lawful judgment of his equals or by the law of the land. Deprived of his standing in any other way. The barons were not thinking about social media. They were thinking about a king who punished at his pleasure. The principle they wrote down was that the loss of one's standing is a serious matter requiring a lawful judgment.

The Fifth Amendment carries the same idea into the American Constitution: no person shall "be deprived of life, liberty, or property, without due process of law." Strictly, that clause binds government, and a private company or a crowd is not the government. I make no claim that cancel culture violates the Fifth Amendment. I am making a different claim, that the amendment records what justice requires before punishment, and that the standard does not stop being a good standard because the punisher is not a state. We hold ourselves to a norm of fairness because we know what happens without it.

A campaign has no neutral decision-maker. The people who decide are the people who are angry, and they are not required to hear the other side. The platform rewards speed and intensity, and a measured reply is the slowest and least rewarded content there is.

Premise three: The punishment must be proportionate to the offence

The common law has always held that the penalty should fit the wrong. The Eighth Amendment forbids "cruel and unusual punishments," and the principle behind it, the older English tradition that fines and penalties should not be excessive, is a principle of proportion. A parking ticket and a life sentence are not the same response to the same conduct.

Cancellation frequently has no scale. A clumsy sentence, a decade-old joke or an opinion on a contested question can bring the same penalty as a serious wrong: loss of a job, a career, a reputation, a circle of friends. And the penalty compounds. Because the record of the offence is permanent and searchable, the punishment is not a one-time cost but a standing sentence. There is no such thing as time served.

Premise four: The accused is presumed to be acting in good faith until the contrary is shown

The presumption of innocence is a rule for courtrooms, yet it expresses a moral stance towards neighbours: you do not assume the worst about a person on thin evidence. Blackstone's famous formulation, in his Commentaries, was that it is better that ten guilty persons escape than that one innocent suffer. We do not need to adopt the ratio to understand the humility behind it. Any process that punishes will sometimes punish the wrong person, and we must build in resistance to that error.

Online campaigns invert the presumption. The reading of an ambiguous remark is whichever reading is most damning, and a failure to apologise quickly is treated as confirmation. In the worst cases a person's silence, which a lawyer would advise, is taken as an admission, and his apology, which a PR firm would advise, is taken as an admission too.

Premise five: There must be a way back

Every serious moral tradition makes room for repentance and restoration. The Jewish and Christian traditions are explicit: in the Gospel of Luke, the instruction is that if a brother sins, rebuke him, and if he repents, forgive him. The common law, for its part, has statutes of limitations, because it recognises that evidence decays, memory fades, and people change. A society that wants to give people a chance to become better than their worst day builds in time limits and ways of making amends.

The mob has neither. A post from fifteen years ago is as live as one from fifteen minutes ago. An apology is dissected for sincerity. Even a sincere and complete apology rarely ends the matter, because the incentive of the campaign is to find the next target, not to reconcile with the last. The scarlet letter, in Hawthorne's novel, was at least a fixed sentence imposed by a magistrate. The internet version arrives by strangers, with no appeals court and no sunset clause, and with the added humiliation of a comment section. The internet version is imposed by strangers and has no end date.

The strongest objection: "It is merely accountability"

The most serious defence of the practice runs as follows, and it is worth stating carefully.

People are free to speak, and everyone else is free to respond. If a person says something offensive and others decide they no longer want to buy from him, work with him or employ him, that is not oppression. It is the consequence that comes from living among other free people. The Supreme Court protected a boycott in NAACP v. Claiborne Hardware Co. (1982), a campaign of economic pressure against merchants in Mississippi that was part of the civil rights movement. If boycotts and public pressure are protected speech when they serve causes we admire, we cannot condemn them when they target people we admire. And employers have a legitimate interest in the reputations of their businesses. Moreover, the argument concludes, there is an old and honourable tradition of social censure. People who behave badly have always faced disapproval.

That is a strong objection, and the first half of it is correct. I would not want a law against it. Claiborne Hardware is rightly decided. A citizen's right to criticise, to organise a protest, and to decline to patronise a business is part of the freedom of speech and association. I do not propose to regulate any of that, and I would resist those who do.

The answer

Here is the answer, in three parts.

One: criticism and punishment are different acts, and "accountability" smuggles one in under the name of the other. Accountability means answering for something to someone with authority to judge it, by a standard that can be stated, and receiving a consequence that fits. Public criticism meets some of that: it is open, and it can be answered. A campaign to have a person fired for an opinion he held lawfully and expressed outside work is not criticism of the opinion. It is an effort to impose a penalty, on a person, for holding it. The word "accountable" implies a process of accounting. If no one is keeping the books, it is not accountability. It is revenge dressed up with a spreadsheet.

Two: legitimate does not mean wise, and the law is not the only measure of what is right. I have said I would not make cancellation illegal. That is a statement about the law. It is not a statement about virtue. A great many things are lawful and wrong: breaking a promise, gossiping about a neighbour, piling on. The reason the common law built procedural protections around official punishment is that any power to punish needs restraint, and where the law cannot supply the restraint, culture must. A culture that says "we may legally do this, so we will" has mistaken a floor for a ceiling.

Three: the practice does not work the way its defenders say. If cancellation were accountability for serious wrongs, we would expect it to be applied evenly and to track the gravity of the conduct. It does not. It tracks visibility and the available outrage. The consequences land hardest on people with the least power to absorb them: a junior employee, a small-business owner, a teacher, a person without a lawyer, a publicist, or a platform. The powerful survive more easily, because they have the resources to weather it. A mechanism that punishes unevenly, by the accident of virality, is not justice, and it is not even good deterrence.

A fair note on the cross-spectrum concern

It is worth recalling that this is not purely a conservative worry. In July 2020, Harper's Magazine published "A Letter on Justice and Open Debate," signed by about 150 writers, artists and thinkers, a list that ran across the political spectrum and included people of the left, the centre and the right. The letter warned of a climate of intolerance towards opposing views and a "vogue for public shaming and ostracism." Within days a counter-letter appeared, and the signatories were themselves attacked, which rather proved the point. The value of the letter for our argument is not its list of names but the fact that the concern is shared by many who disagree about nearly everything else. A free-speech culture is a common good, and a principle held across the spectrum is a stronger one.

I say that in fairness, and with a note of caution: conservatives have a record of being on the other end of this, and a record of occasionally cheering when it happens to opponents. If we want to be believed, we have to apply the standard to our own side, and that includes the moments when the person being pilloried holds a view we would like to see go away. That is the test of whether we believe in the principle or only in the team. Our post on the Hollywood blacklist, The Hollywood Blacklist Was Wrong, and Conservatives Should Say So Plainly, makes the same point from the right's side of the ledger.

What law can do, and what it cannot

If cancellation is a cultural problem, what can the law do about it? Some modest things.

• Protect public employees. Government employers are bound by the First Amendment, and a government worker has rights as a citizen, subject to the balancing test that the Court set out in Pickering v. Board of Education (1968).
• Honour private contracts and state laws that protect lawful off-duty political activity. Some states have statutes of this kind, and we discuss them in Can Your Boss Fire You for Your Politics? Answers State by State.
• Keep defamation law available. A false accusation of misconduct that damages a person's reputation can be actionable, and the law of defamation is the oldest tool for the person who has been accused of something he did not do.

But the law cannot manufacture a culture of fairness. That is a matter of habit: of waiting for facts, of asking whether a remark is the speaker's considered position or a bad moment, of reading a whole thread before sharing a fragment, and of being willing to say "I don't know enough." It is slow and dull, and it is the main thing standing between a free society and a permanent trial by hashtag.

What to do instead of piling on

There are small disciplines that cost nothing:

• Wait for the full record. If you cannot find the original, do not share the clip.
• Ask whether the penalty fits. If the answer is a career for a sentence, say so.
• Address the argument. If you disagree, rebut the claim, not the person.
• Leave a door open. If someone has apologised, let the apology count.
• Apply your standard evenly. If you would not want it done to your friend, do not do it to your opponent.

For the habits that help you read a story before you react to it, How to Read a News Story From the Bottom Up and Catch What the Lede Hides is a good place to start. For what to do if you are the target, see What to Do When an Online Mob Comes for Your Job, Step by Step.

The case in brief

1. Cancel culture is a coordinated campaign to punish a person for speech or association, where the punishment is disproportionate, lacks a fair process, or has no end, and it is different from criticism, which is protected and healthy.
2. The common law and the moral tradition require notice, a hearing before a neutral judge, proportion, a presumption of good faith and a way back, and chapter 39 of Magna Carta and the Fifth Amendment's due process clause record those principles.
3. Online campaigns supply none of those protections: there is no charge, no judge, no scale and no limitation period.
4. "It is merely accountability" confuses criticism with punishment, mistakes the law's floor for a moral ceiling, and ignores that the practice falls unevenly and tracks virality, not gravity.
5. The remedy is mostly cultural, with modest legal help, and conservatives must apply the standard to their own side to be credible.

What you can do: Before you share the next clip of someone's worst moment, find the original and read the whole thing, and read the First Amendment in the Constitution to remember what the law protects and what it leaves to us.